Exhibit
10.43


 


	
  

  	
  

  

  VERTEX PHARMACEUTICALS INCORPORATED

  130 WAVERLY STREET • CAMBRIDGE, MA 02139-4242

  TEL. 617.444.6100 • FAX 617.444-6483

  http://www.vrtx.com

  



 


 


December 9, 2009


 


Nancy
J. Wysenksi


3604
Foxwood Plc


Durham,
NC  27705


 


RE:                              Change of Control Agreement


 


Dear Nancy:


 


You are a key member of the senior management team of
Vertex Pharmaceuticals Incorporated (the “Company”).  As a result, the Company would like to
provide you with the following “change of control” benefits to help ensure that
if the Company becomes involved in a “change of control” transaction, there
will be no distraction from your attention to the needs of the Company.


 


I.                                         Definitions.  For the purposes of this agreement,
capitalized terms shall have the following meanings:


 


1.               “Cause” shall mean:


 


(a)                                  your
conviction of a crime involving moral turpitude;


 


(b)                                 your willful refusal or
failure to follow a lawful directive or instruction of the Company’s Board of
Directors or the individual(s) to whom you report, provided that
you receive prior written notice of the directive(s) or instruction(s) that
you failed to follow, and provided further that the Company,
in good faith, gives you 30 days to correct such failure and further provided
that if you correct the failure(s), any termination of your employment on
account of such failure shall not be treated for purposes of this
Agreement  as a termination of employment
for “Cause”;


 


(c)                                  in carrying out your duties you commit (i) willful gross negligence, or (ii) willful
gross misconduct, resulting in either case in material harm to the Company, unless
such act, or failure to act, was believed by you, in good faith, to be in the
best interests of the Company; or


 


(d)                                 your violation
of the Company’s policies made known to you regarding confidentiality,
securities trading or inside information.


 


2.               “Change of
Control” shall mean that:


 


(a)                                  any “person”  or “group” as such terms are used in Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (the “Act”),
becomes a beneficial owner, as such term is used in Rule 13d-3 promulgated
under the Act, of securities of the Company


 

















 


representing more than 50% of the combined voting power of the
outstanding securities of the Company having the right to vote in the election
of directors; or


 


(b)                                 all or
substantially all the business or assets of the Company are sold or disposed
of, or the Company or a subsidiary of the Company combines with another company
pursuant to a merger, consolidation, or other similar transaction, other than (i) a transaction solely for the
purpose of reincorporating the Company or one of its subsidiaries in a
different jurisdiction or recapitalizing or reclassifying the Company’s stock;
or (ii) a merger or consolidation in which the shareholders of the Company
immediately prior to such merger or consolidation continue to own at least a
majority of the outstanding voting securities of the Company or the surviving
entity immediately after the merger or consolidation.


 


3.               “Code” shall mean the
Internal Revenue Code of 1986, as amended.


 


4.               “Disability” shall
mean a disability as determined under the Company’s long-term disability plan
or program in effect at the time the disability first occurs, or if no such
plan or program exists at the time of disability, then a “disability” as
defined Section 22(e)(3) of the Code.


 


5.               “Good Reason” shall
mean one of the following events has occurred without your consent:


 


(a)                                  your annual
base salary is decreased;


 


(b)                                 the office to
which you are assigned is relocated to a place 35 or more miles away;


 


(c)                                  your duties are
materially diminished to an extent that results in either (A) you no
longer being an “officer”, as such term is defined in Rule 16a-1(f) promulgated
under the Securities Exchange Act of 1934; or (B) you ceasing to be a member
of the executive management team of the Company; or


 


(d)                                 following a Change of Control, the Company’s successor fails to assume
the Company’s rights and obligations under both this Agreement and the
Employment Agreement, of even date herewith, between you and the Company, as it
may be amended from time to time (the “Employment Agreement”);


 


provided that Good Reason shall not exist unless and
until within 90 days after the event giving rise to Good Reason under (a), (b),
(c) or (d) above has occurred, you deliver a written termination
notice to the Company stating that an event giving rise to Good Reason has
occurred and identifying with reasonable detail the event that you assert
constitutes Good Reason under (a), (b), (c) or (d) above and the
Company fails or refuses to cure or eliminate the event giving rise to Good
Reason on or within 30 days after receiving your notice.  To avoid doubt, the termination of your
employment would become effective at the close of business on the thirtieth day
after the Company receives your termination notice, unless the Company cures or
eliminates the event giving rise to Good Reason prior to such time.


 


6.               “Termination Date”
shall mean the last day of your employment with the Company.


 


II.                                     Severance
Benefits upon Change of Control.  If:


 


2

















 


(A)                     your employment is
terminated by the Company (except for termination for Cause or due to a
Disability) and the Termination Date is within 90 days prior to a Change of
Control or within 12 months after a Change of Control; or


 


(B)                       you, of your
own initiative, (i) terminate your employment for Good Reason (in
accordance with the notice and cure provisions set forth in Section 5
above) and (ii) the event giving rise to Good Reason occurs within 90 days
prior to a Change of Control or within 12 months after a Change of Control;


 


then,
in exchange for a general release by you of all claims against the Company, its
subsidiaries, and its and their officers, directors and representatives, in a
form satisfactory to the Company, you shall receive the following benefits:


 


1.                                  Severance
Payment.  The Company shall make a cash
payment (the “Severance Payment”) to you in an amount equal to:


 


(a)                                  your annual
base salary (provided, however, that if you terminate your employment for Good
Reason based on a reduction in your annual base salary, then the annual base
salary to be used in calculating the Severance Payment shall be your annual
base salary in effect immediately prior to such reduction in annual base
salary) plus your target bonus under any bonus program applicable to you for
the year in which the Termination Date occurs; 
plus


 


(b)                                 a pro rata
portion of your target bonus for the portion of the year in which the Termination
Date occurs under any bonus program applicable to you; plus


 


(c)                                  all cash incentive
compensation awards earned by you but not paid prior to the Termination Date;
provided that, if a fiscal year has been completed and the incentive award for
such fiscal year has not been determined, the incentive compensation for such
completed fiscal year shall equal the target bonus for such fiscal year.


 


Except with respect to any portion of the Severance
Payment that is delayed as set forth in this paragraph, the Severance Payment
shall be made in cash within ten days after the execution by you of the general
release referred to above and expiration without revocation of any applicable
revocation periods under such general release (or, if the Change of Control
resulting in your becoming entitled to such benefits occurs after such
execution and expiration, within ten days after the Change of Control).  The Severance Payment shall be divided into
two portions, consisting of a portion that does not constitute “nonqualified
deferred compensation” within the meaning of Section 409A of the Code and a
portion, if any, that does constitute nonqualified deferred compensation. If
you are a “specified employee” as defined in Section 409A(a)(2)(B)(i) of
the Code, the commencement of the delivery of any such payments that constitute
nonqualified deferred compensation payable upon a “separation from service”
under Section 409A(a)(2)(A)(i) of the Code will be delayed until the
first business day that is more than six months after your Termination
Date.  The determination of whether, and
the extent to which, any of the 


 


3

















 


payments to be made to you hereunder are
nonqualified deferred compensation shall be made after the application of all
applicable exclusions, including those set forth under Treasury Reg. §
1.409A-1(b)(9). Any payments that are intended to qualify for the exclusion for
separation pay due to involuntary separation from service set forth in
Reg. §1.409A-1(b)(9)(iii) must be paid no later than the last day of
the second taxable year following the taxable year in which the Termination
Date occurs.  To the extent that the
termination of your employment does not constitute a separation of service
under Section 409A(a)(2)(A)(i) of the Code (as the result of further
services that are reasonably anticipated to be provided by you to the Company
at the time your employment is terminated), the payment of any non-qualified
deferred compensation will be further delayed until the first business day that
is more than six months after the date of a subsequent event constituting a
separation of service under Section 409A(a)(2)(A)(i) of the Code.


 


2.                                  Accelerated
Vesting.


 


(a)                   Stock options for the
purchase of the Company’s securities held by you as of the Termination Date and
not then exercisable shall immediately become exercisable in full.  The options to which this accelerated vesting
applies shall remain exercisable until the earlier of (a) the end of the
90-day period immediately following the later of (i) the Termination Date
or (ii) the date of the Change of Control and (b) the date the stock
option(s) would otherwise expire; and


 


(b)                  the Company’s lapsing
repurchase right with respect to shares of restricted stock held by you shall
lapse in full (subject to your making satisfactory arrangements with the
Company providing for the payment to the Company of all required withholding
taxes).


 


Notwithstanding
anything to the contrary in this Agreement, the terms of any option agreement
or restricted stock agreement shall govern the acceleration, if any, of vesting
or lapsing of the Company’s repurchase rights and period of exercisability of
such awards, as applicable, except to the extent that the terms of this Agreement
are more favorable to you.


 


3.                                  Continued
Insurance Coverage.  If COBRA coverage is elected by you, the Company
shall pay the cost of COBRA continuation premiums on your behalf to continue
standard medical, dental and life insurance coverage for you (or the cash
equivalent of same if you are ineligible for continued coverage) until
the earlier of (i) the date 12 months after the Termination Date or (ii) the
date you begin receiving substantially equivalent coverage and benefits through
a subsequent employer.


 


4.                                  No Mitigation.  You shall not be required to
mitigate the amount of the Severance Payment or any other benefit provided
under this Agreement by seeking other employment or otherwise, nor shall the
amount of any payment or benefit provided for in this Agreement be reduced
(except as provided in Article II Section 3(ii)) by any compensation
earned by you as the result of other employment, by retirement benefits, or be
offset against any amount claimed to be owed by you to the Company or otherwise
(except for any required withholding taxes); provided, that if the Company
makes any 


 


4

















 


other severance payments to you under any
other program or agreement, including any payments under the Employment
Agreement, such amounts shall be offset against the payments the Company is
obligated to make pursuant to this Agreement.


 


III.                                 Miscellaneous.


 


1.                                  Employee’s
Obligations.  Upon the
termination of employment, you shall promptly deliver to the Company all
property of the Company and all material documents, statistics, account
records, programs and other similar tangible items which may by in your
possession or under your control and which relate in a material way to the
business or affairs of the Company or its subsidiaries, and no copies of any
such documents or any part thereof shall be retained by you.


 


2.                                  Entire
Agreement.  This Agreement,
the Employment Agreement and the “Employee Non-Disclosure,
Non-Competition & Inventions Agreement” previously executed
by you covers the entire understanding of the parties as to the subject matter
hereof, superseding all prior understandings and agreements related
hereto.  No modification or amendment of
the terms and conditions of this Agreement shall be effective unless in writing
and signed by the parties or their respective duly authorized agents.


 


3.                                  Governing
Law.  This Agreement shall be
governed by the laws of The Commonwealth of Massachusetts, as applied to
contracts entered into and performed entirely in Massachusetts by Massachusetts
residents.


 


4.                                  Successors
and Assigns.  This Agreement
may be assigned by the Company upon a sale, transfer or reorganization of the
Company.  Upon a Change of Control, the
Company shall require the successor to assume the Company’s rights and
obligations under this Agreement.  The
Company’s failure to do so shall constitute a material breach of this
Agreement.  This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
successors, permitted assigns, legal representatives and heirs.


 


Kindly
indicate your acceptance of the foregoing by signing and dating this Agreement
as noted below, and returning one fully executed original to my attention.


 


	
   

  	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Vertex
  Pharmaceuticals Incorporated

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Matthew W. Emmens

  
	
   

  	
   

  	
   

  	
  Matthew
  W. Emmens

  
	
   

  	
   

  	
   

  	
  President,
  Chairman and Chief Executive Officer

  
	
  ACCEPTED
  AND AGREED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Nancy J. Wysenski

  	
   

  	
   

  
	
  Nancy
  J. Wysenski

  	
   

  	
   

  



 


5