As filed with the Securities and Exchange Commission on July 23, 2001
REGISTRATION 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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VERTEX PHARMACEUTICALS INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MASSACHUSETTS 04-3039129
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
130 WAVERLY STREET
CAMBRIDGE, MA 02139-4242
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
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
(617) 577-6000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum
Title of Amount to be offering price aggregate Amount of
securities to be registered registered(1) per share(2) offering price(2) registration fee (2)
------------------------------ ------------------- -------------------- ------------------------- ---------------------------
Common Stock, $.01 par value 874,798 shares $69.02 $60,378,559 $15,095
6,125,202 shares $39.28 $240,597,935 $60,150
---------------- -------
7,000,000 shares $75,245
------------------------------ ------------------- -------------------- ------------------------- ---------------------------
Rights to Purchase Series A (3) (3) (3) None
Junior Participating
Preferred Stock
============================== =================== ==================== ========================= ===========================
(1) The number of shares of common stock, par value $0.01 per share
("Common Stock"), stated above consists of 7,000,000 shares which may
be sold upon the exercise of options which have been granted and/or
may hereafter be granted under the 1996 Stock and Option Plan (the
"Plan"). The maximum number of shares which may be sold upon exercise
of such options granted under the Plan are subject to adjustment in
accordance with certain anti-dilution and other provisions of said
Plan. Accordingly, pursuant to Rule 416 under the Securities Act of
1933, as amended (the "Securities Act"), this Registration Statement
covers, in addition to the number of shares above, an indeterminate
number of additional shares which may be subject to grant or otherwise
issuable after the operation of any such anti-dilution and other
provisions.
(2) This calculation is made solely for the purpose of determining the
registration fee pursuant to the provisions of Rule 457(c) and (h)
under the Securities Act as follows: (i) in the case of shares of
Common Stock which may be purchased upon exercise of outstanding
options, the fee is calculated on the basis of the price at which the
options may be exercised; and (ii) in the case of shares of Common
Stock for which options have not yet been granted and the option price
of which is therefore unknown, the fee is calculated on the basis of
the average of the high and low sale prices per share of the Common
Stock on The Nasdaq National Market of $39.28 on July 18, 2001 within
5 business days prior to filing this Registration Statement.
(3) No separate consideration will be received for the Rights.
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EXPLANATORY NOTE
In accordance with the instructional Note to Part I of Form S-8 as
promulgated by the Securities and Exchange Commission, the information specified
by Part I of Form S-8 has been omitted from this Registration Statement on Form
S-8 for offers of Common Stock pursuant to the 1996 Stock and Option Plan.
Registration Statement on Form S-8 (File No. 333-27011) registering an aggregate
of 2,000,000 shares of Common Stock under the 1996 Stock and Option Plan was
filed with the Securities and Exchange Commission on May 13, 1997, Registration
Statement on Form S-8 (File No. 333-56179) registering an aggregate of 1,250,000
shares of Common Stock under the 1996 Stock and Option Plan was filed with the
Securities and Exchange Commission on June 5, 1998 and Registration Statement on
Form S-8 (File No. 333-79549) registering an aggregate of 1,450,000 shares of
Common Stock under the 1996 Stock and Option Plan and Employee Stock Purchase
Plan was filed with the Securities and Exchange Commission on May 28, 1999.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant or Aurora Biosciences
Corporation with the Commission are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000 (filing date March 26, 2001).
(b) The Registrant's Quarterly Report on Form 10-Q (Commission File No.
000-19319) for the quarter ended March 31, 2001 (filing date May 15, 2001).
(c) The Registrant's Current Report on Form 8-K for the April 29, 2001
event (filing date April 30, 2001).
(d) Aurora's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000 (filing date March 15, 2001).
(e) Aurora's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 2001 (filing date May 11, 2001).
(f) Aurora's Current Report on Form 8-K for the February 7, 2001 event
(filing date February 7, 2001).
(g) Aurora's Current Report on Form 8-K for the March 1, 2001 event
(filing date March 7, 2001).
(h) Aurora's Current Report on Form 8-K for the April 2, 2001 event
(filing date April 5, 2001).
(i) Aurora's Current Report on Form 8-K for the April 29, 2001 event
(filing date April 30, 2001).
(j) Aurora's Current Report on Form 8-K for the March 1, 2001 event
(filing date May 18, 2001), which contains financial statements and related
information that restate and supercede the financial statements and related
information in Aurora's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000, filed on March 15, 2001.
(k) Description of the Registrant's Common Stock included in the
Registrant's Registration Statement on Form S-4 (Reg. No. 333-61480) filed under
the Securities Act of 1933, including any amendment or report filed for the
purpose of updating such description.
All reports and other documents filed by the Registrant after the date
hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
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all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of 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.
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
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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
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Specimen Common Stock Certificate (Filed as Exhibit 4.1 to the
Registrant's Registration Statement on Form S-1 (Registration
No. 33-40966) or amendments thereto and incorporated herein by
reference).
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4.2 Restated Articles of Organization filed with the Commonwealth
of Massachusetts on July 31, 1991 (Filed as Exhibit 3.1 to the
Registrant's Registration Statement on Form S-4 (Reg. No.
333-61480) filed on May 23, 2001, and incorporated herein by
reference).
4.3 By-Laws, as amended and restated as of March 12, 2001 (Filed
as Exhibit 3.5 to the Registrant's Registration Statement on
Form S-4 (Reg. No. 333-61480) filed on May 23, 2001, and
incorporated herein by reference).
5 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
as to the legality of shares being registered.
23.1 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in opinion of counsel filed as Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.3 Consent of Ernst & Young LLP, Independent Auditors.
23.4 Consent of Arthur Andersen LLP.
23.5 Consent of KPMG LLP.
24 Power of Attorney to file future amendments (set forth on the
signature page of this Registration Statement.)
99 1996 Stock and Option Plan, as amended.
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:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represents a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement.
(iii) 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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the Registration Statement is on
Form S-3 Form S-8 or Form F-3, and the information required to
be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13
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or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this 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 filing
of the Registrant's annual report pursuant to Section 13(a) or 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.
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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, MA, on July 23, 2001.
VERTEX PHARMACEUTICALS INCORPORATED
By: /s/ Joshua S. Boger
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Name: Joshua S. Boger
Title: President and Chief
Executive Officer
Each person whose signature appears below constitutes and appoints
Joshua S. Boger and Sarah P. Cecil, and each of them singly, 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 on Form S-8 of Vertex Pharmaceuticals
Incorporated 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 or about the premises, as full 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.
SIGNATURE TITLE DATE
/s/ Joshua S. Boger
------------------------- Director, Chairman and Chief July 23, 2001
Joshua S. Boger Executive Officer (principal
executive officer)
/s/ Johanna Messina Power
------------------------- Controller (principal financial July 23, 2001
Johanna Messina Power and accounting officer)
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/s/ Barry M. Bloom
------------------------- Director July 23, 2001
Barry M. Bloom
/s/ Roger W. Brimblecombe
------------------------- Director July 23, 2001
Roger W. Brimblecombe
/s/ Stuart J.M. Collinson
------------------------- Director July 23, 2001
Stuart J.M. Collinson
/s/ Donald R. Conklin
------------------------- Director July 23, 2001
Donald R. Conklin
/s/ Bruce I. Sachs
------------------------- Director July 23, 2001
Bruce I. Sachs
/s/ Charles A. Sanders
------------------------- Director July 23, 2001
Charles A. Sanders
/s/ Elaine S. Ullian
------------------------- Director July 23, 2001
Elaine S. Ullian
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VERTEX PHARMACEUTICALS INCORPORATED
INDEX TO EXHIBITS FILED WITH
FORM S-8 REGISTRATION STATEMENT
Exhibit
NUMBER DESCRIPTION
4.1 Specimen Common Stock Certificate (Filed as Exhibit 4.1 to the
Registrant's Registration Statement on Form S-1 (Registration
No. 33-40966) or amendments thereto and incorporated herein by
reference).
4.2 Restated Articles of Organization filed with the Commonwealth
of Massachusetts on July 31, 1991 (Filed as Exhibit 3.1 to the
Registrant's Registration Statement on Form S-4 (Reg. No.
333-61480) filed on May 23, 2001, and incorporated herein by
reference).
4.3 By-Laws, as amended and restated as of March 12, 2001 (Filed
as Exhibit 3.5 to the Registrant's Registration Statement on
Form S-4 (Reg. No. 333-61480) filed on May 23, 2001, and
incorporated herein by reference).
5 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
as to the legality of shares being registered.
23.1 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in opinion of counsel filed as Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.3 Consent of Ernst & Young LLP, Independent Auditors.
23.4 Consent of Arthur Andersen LLP.
23.5 Consent of KPMG LLP.
24 Power of Attorney to file future amendments (set forth on the
signature page of this Registration Statement.)
99 1996 Stock and Option Plan, as amended.
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