Exhibit 10.2


 


EMPLOYEE NON-DISCLOSURE, NON-COMPETITION & INVENTIONS
AGREEMENT


 


This Agreement made and entered into in
Cambridge, Massachusetts, by Matthew W. Emmens (the “Executive”) with
Vertex Pharmaceuticals Incorporated (the “Company”), effective as of the
Executive’s first day of employment with the Company, on the 5th day of
February, 2009.


 


WHEREAS, the Employee acknowledges the importance to Vertex
Pharmaceuticals Incorporated (the “Company”) and its Affiliates (as
hereafter defined) of protecting the valuable Confidential Information (as
hereafter defined) and goodwill that they have developed or acquired and their
other legitimate interests.


 


NOW, THEREFORE, in consideration of his initial employment with the
Company and in consideration of his being granted access to trade secrets and
other confidential information of the Company and its Affiliates and for other
good and valuable consideration, the receipt and sufficiency of which I hereby
acknowledge, the Executive hereby agrees with the Company as follows:


 


1.             Confidentiality.  The
Executive acknowledges that the Company and its Affiliates continually develop
Confidential Information; that the Executive may develop Confidential
Information for the Company and its Affiliates; and that the Executive has
learned and will continue to learn of Confidential Information while serving as
a member of the board of directors of the Company (the “Board”) and will
learn of Confidential Information hereafter during the course of employment
with the Company.  The Executive shall
comply with the policies and procedures of the Company for protecting
Confidential Information and shall not disclose to any Person (as hereafter
defined) or use, other than as required for the proper performance of his
duties and responsibilities to the Company and its Affiliates, or as required
by applicable law after notice to the Company and a reasonable opportunity for
the Company to seek protection of the Confidential Information prior to
disclosure, any Confidential Information obtained by the Executive incident to
his employment or other association with the Company or any of its
Affiliates.  The Executive understands
and agrees that these restrictions shall continue to apply after his employment
with the Company terminates, regardless of the reason for such
termination.  The confidentiality
obligation under this Section 1 shall not apply to information that is
generally known or readily available to the public at the time of disclosure to
the Executive or that becomes generally known or readily available to the
public thereafter through no wrongful act on the part of the Executive or any
other Person having an obligation of confidentiality to the Company or any of
its Affiliates.


 


2.             Return of Company
Property.  All documents, records,
tapes and other media of every kind and description relating to the business,
present or otherwise, of the Company or any of its Affiliates and any copies,
in whole or in part, thereof (the “Documents”), whether or not prepared
by the Executive, shall be the sole and exclusive property of the Company and
its Affiliates.  The Executive shall
safeguard all Documents and shall surrender to the Company at the time his
employment terminates, or at such earlier time or times as the Board or its
designee may specify, all Documents and all other property of the Company and
its Affiliates then in the Executive’s possession or control.


 


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3.             Assignment of
Rights to Intellectual Property.  The Executive shall promptly and
fully disclose to the Company all Intellectual Property (as defined in Section 8
hereof).  The Executive hereby assigns
and agrees to assign to the Company (or as otherwise directed by the Company)
the Executive’s full right, title and interest in and to all Intellectual
Property.  The Executive agrees to
execute any and all applications for domestic and foreign patents, copyrights
or other proprietary rights and to do such other acts (including without
limitation the execution and delivery of instruments of further assurance or
confirmation) requested by the Company to assign the Intellectual Property to
the Company and to permit the Company to enforce any patents, copyrights or
other proprietary rights to the Intellectual Property.  The Executive will not charge the Company for
time spent in complying with these obligations. 
All copyrightable works that the Executive creates shall be considered “work
made for hire” and shall, upon creation, be owned exclusively by the Company.


 


4.             Restricted
Activities.  The Executive agrees
that the following restrictions on his activities during and after his
employment are necessary to protect the goodwill, Confidential Information and
other legitimate interests of the Company and its Affiliates:


 


(a)           While
the Executive is employed by the Company and for eighteen (18) months after his
employment terminates, regardless of the basis of such termination, the
Executive shall not, directly or indirectly, whether as owner, partner,
investor, consultant, agent, employee, co-venturer or otherwise, (i) compete
with the Company or any of its Immediate Affiliates (as defined in Section 8
hereof) within the United States or in any other country in which the Company
or any of its Immediate Affiliates markets, or is in active planning to market,
any of the Products or otherwise conducts or is in active planning to conduct
business; (ii) undertake any planning for any business competitive with
the Products of the Company or any of its Immediate Affiliates; or (iii) compete,
or undertake any planning to compete with, the Exclusive Licensees (as also
defined in Section 8) with respect to those Products as to which the
Exclusive Licensees are licensed by the Company or any of its Immediate
Affiliates in those geographic areas covered by those licenses. Specifically,
but without limiting the foregoing, the Executive agrees not to engage in any
manner in any activity that is directly or indirectly competitive or
potentially competitive with the Products or with any of the other business activities
of the Company or any of its Immediate Affiliates conducted or under
consideration at any time during the Executive’s employment or his service on
the Board and further agrees not to work or provide services, in any capacity,
whether as an employee, independent contractor or otherwise, whether with or
without compensation, for or to any Person who is engaged in any business that
is competitive with the business of the Company or any of its Immediate
Affiliates or any of the Exclusive Licensees (to respect to the Products
licensed), as conducted or in planning during the Executive’s employment. For
the purposes of this Section 4, the business of the Company and its
Immediate Affiliates and the Exclusive Licensees shall include all Products and
the Executive’s undertaking shall encompass all items, products and services
that may be used in substitution for Products. 
The foregoing, however, shall not prevent the Executive’s passive
ownership of two percent (2%) or less of the equity securities of any publicly
traded company; nor in any way limit him in the performance of his duties as a
member and/or chairman of the Board of Directors of Shire Pharmaceuticals Inc.
(the “Shire Board”) in accordance with Section 3(c) of the
Executive’s employment agreement with Company of even date herewith (the “Employment
Agreement”).


 


(b)           The Executive agrees
that, during his employment with the Company, he will not undertake any outside
activity, whether or not competitive with the business of the


 


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Company or any of its Immediate
Affiliates, that could reasonably give rise to a conflict of interest or
otherwise interfere with any his duties, responsibilities or obligations to the
Company or any of its Immediate Affiliates. 
It is expressly understood and agreed that the Executive’s performance
of his duties as a member and/or chairman of the Shire Board in accordance with
Section 3(c) of the Employment Agreement shall not be a breach of
this Section 4(b).


 


(c)           The Executive agrees
that, during his employment with the Company and during the eighteen (18)
months immediately following termination of his employment, regardless of the
basis of such termination, the Executive will not directly or indirectly (a) solicit
or encourage any customer or prospective customer of the Company or any of its
Immediate Affiliates or any of their Exclusive Licensees to terminate or
diminish its relationship with the Company or any of its Immediate Affiliates; (b) seek
to persuade any such customer or prospective customer of the Company or any of
its Immediate Affiliates or any Exclusive Licensee to conduct with the
Executive or any other Person any business or activity that such customer,
prospective customer or Exclusive Licensee conducts or could conduct with the
Company or any of its Immediate Affiliates or (c) solicit or encourage any
customer or prospective customer of any of the Exclusive Licensees for any of
the Products to terminate or diminish such business with the Exclusive Licensees
or to conduct such business with the Executive or any other Person; provided
that these restrictions shall apply after termination of the Executive’s
employment with the Company (y) only with respect to those Persons who are
or have been Exclusive Licensees or who are or have been a customer or
potential customer of the Company or any of its Immediate Affiliates or the
Exclusive Licensees at any time within the twelve (12) month period immediately
preceding the Date of Termination or whose business has been solicited on
behalf of the Company or any of its Immediate Affiliates or any of the
Exclusive Licensees by any of their employees or agents within said twelve (12)
month period, other than by form letter, blanket mailing or published
advertisement, and (z) only if the Executive has been introduced to, or
otherwise had contact with, such Person as a result of his employment or other
associations with the Company or one of its Immediate Affiliates or one of
their Exclusive Licensees or has had access to Confidential Information that
would assist in the Executive’s solicitation of such Person in competition with
the Company or one of its Immediate Affiliates or one of the Exclusive
Licensees.


 


(d)           The Executive agrees
that during his employment (except in the course of his duties on behalf of the
Company or any of its Immediate Affiliates) and during the eighteen (18) month
period immediately following termination of his employment, regardless of the
basis for such termination, the Executive will not, and will not assist any
other Person to, (a) hire or solicit for hiring any employee of the
Company or any of its Immediate Affiliates or any of the Exclusive Licensees or
seek to persuade any employee of the Company or any of its Immediate Affiliates
or any of the Exclusive Licensees to discontinue employment or (b) solicit
or encourage any independent contractor providing services to the Company or
any of its Immediate Affiliates or any of the Exclusive Licensees to terminate
or diminish its relationship with them. 
For the purposes of the Executive’s obligations hereunder following
termination of his employment with the Company, an “employee” of the Company or
any of its Immediate Affiliates or any of the Exclusive Licensees or an “independent
contractor” providing services to the Company or any of its Immediate
Affiliates or any of the Exclusive Licensees is any Person who was such at any
time during the twelve (12) months preceding the Date of Termination.


 


5.             Notification
Requirement.  During the eighteen
(18) months immediately following the Date of Termination, the Executive shall
give notice to the Company prior to begin


 


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employment or a consulting
position stating the name and address of the Person for whom such employment or
consulting is undertaken and the nature of the Executive’s position with such
Person.  The Executive agrees to also
provide the Company with such other pertinent information as the Company may
reasonably request in order to determine the Executive’s continued compliance
with his surviving obligations under Sections 1, 3 and 4 hereof.


 


6.             Enforcement
of Covenants.  The Executive
acknowledges that he has carefully read and considered all the terms and
conditions of this Agreement, including the restraints imposed on him pursuant
to Sections 1, 3 and 4 hereof.  The
Executive agrees without reservation that each of the restraints contained
herein is necessary for the reasonable and proper protection of the goodwill,
Confidential Information and other legitimate interests of the Company and its
Immediate Affiliates; that each and every one of those restraints is reasonable
in respect to subject matter, length of time and geographic area; and that these restraints,
individually or in the aggregate, will not prevent him from obtaining other
suitable employment during the period in which the Executive is bound by these
restraints.  The Executive further agrees
that he will not assert, or permit to be asserted on his behalf, in any forum,
any position contrary to the foregoing.  
The Executive further acknowledges that, were he to breach any of the
covenants contained in Section 1, 3 or 4 hereof, the damage to the Company
would be irreparable.  The Executive
therefore agrees that the Company, in addition to any other remedies available
to it, shall be entitled to preliminary and permanent injunctive relief against
any breach or threatened breach by the Executive of any of said covenants,
without having to post bond.  The parties
further agree that, in the event that any provision of Section 1, 3 or 4
hereof shall be determined by any court of competent jurisdiction to be
unenforceable by reason of its being extended over too great a time, too large
a geographic area or too great a range of activities, such provision shall be
deemed to be modified to permit its enforcement to the maximum extent permitted
by law.


 


7.             Conflicting
Agreements.  The Executive hereby
represents and warrants that the execution of this Agreement and the
performance of his obligations hereunder will not breach or be in conflict with
any other agreement to which the Executive is a party or is bound and that the
Executive is not now subject to any covenants against competition or similar
covenants or any court order or other legal obligation that would affect the
performance of his obligations hereunder. 
The Executive agrees not to disclose to or use on behalf of the Company
or any of its Affiliates any proprietary information of a prior employer or
other Person without such Person’s consent.


 


8.             Definitions.  Words or phrases which are initially
capitalized or are within quotation marks shall have the meanings provided in
this Section and as provided elsewhere herein.  For purposes of this Agreement, the following
definitions apply:


 


(a)           “Affiliates”
means all persons and entities directly or indirectly controlling, controlled
by or under common control with the Company, where control may be by management
authority, contract or equity interest.


 


(b)           “Confidential
Information” means any and all information of the Company and its
Affiliates that is not generally known by Persons with whom the Company or any
of its Affiliates competes or does business, or with whom the Company or any of
its Affiliates plans to compete or do business and any and all information,
publicly known in whole or in part or not, that, if disclosed by the Company or
any of its Affiliates, would assist in competition against


 


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them.  Confidential Information includes without
limitation such information relating to (i) the development, research,
testing, manufacturing, marketing and financial activities of the Company and
its Affiliates, (ii) the Products, (iii) the costs, sources of
supply, financial performance and strategic plans of the Company and its
Affiliates, (iv) the identity and special needs of the customers of the
Company and its Affiliates and (v) the people and organizations with whom
the Company and its Affiliates have business relationships and the nature and
substance of those relationships. 
Confidential Information also includes any and all information received
by the Company or any of its Affiliates belonging to any customer or other
Person with any understanding, express or implied, that the information would
not be disclosed.


 


(c)           “Date of Termination”
means the date the Executive’s employment with the Company terminates,
regardless of the reason for such termination, and, for the avoidance of doubt,
whether occurring pursuant to the employment agreement between the Company and
the Executive of even date herewith or otherwise.


 


(d)           “Exclusive Licensees”
means those Persons licensed by the Company and/or by one or more of its
Immediate Affiliates to distribute in specific geographic areas one or more of
the Products.


 


(e)           “Immediate
Affiliates” means the Company’s direct and indirect subsidiaries, the
Company’s direct and indirect parents and their direct and indirect
subsidiaries.


 


(f)            “Intellectual
Property” means inventions, discoveries, developments, methods, processes,
compositions, works, concepts and ideas (whether or not patentable or
copyrightable or registrable under any comparable law or constituting trade
secrets) conceived, made, created, developed or reduced to practice by the
Executive (whether alone or with others, whether or not during normal business
hours or on or off Company premises) during the Executive’s service on the
Board or his employment with the Company or any of its Immediate Affiliates or
that relate to the Products or to any prospective activity of the Company or
any of its Immediate Affiliates or to any work performed by the Executive for
the Company or any of its Immediate Affiliates or that make use of Confidential
Information or any of the equipment or facilities of the Company or any of its
Immediate Affiliates.


 


(g)           “Person” means
an individual, a corporation, a limited liability company, an association, a
partnership, an estate, a trust and any other entity or organization, other
than the Company or any of its Affiliates.


 


(h)           “Products” mean
all products planned, researched, developed, tested, manufactured, sold,
licensed, leased or otherwise distributed or put into use by the Company or any
of its Immediate Affiliates, together with all services provided or planned by
the Company or any of its Immediate Affiliates, during the Executive’s
employment or during the period of his service on the Board that preceded the
Commencement Date.


 


9.             Assignment.  Neither the Company nor the Executive may
make any assignment of this Agreement or any interest in it, by operation of
law or otherwise, without the prior written consent of the other; provided,
however, that the Company may assign its rights and obligations under this
Agreement without the Executive’s consent in the event that the Company shall
hereafter affect a reorganization, consolidate with, or merge into any Person
or transfer to any Person all or substantially all of the business, properties
or assets of the Company.  This Agreement
shall inure to the benefit of and be binding upon the Executive and the
Company, and


 


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each of their respective
successors, executors, administrators, heirs, representatives and permitted
assigns. The Executive also agree that each of the Company’s Affiliates shall
have the right to enforce all of his obligations to that Affiliate under this
Agreement.  The Executive hereby
expressly consents to be bound by the provisions of this Agreement for the
benefit of the Company and of any successor or permitted assign to whose employ
the Executive may be transferred, without the necessity that this Agreement be
re-signed at the time of such transfer.


 


10.           Severability.  If any portion or provision of this Agreement
shall to any extent be declared illegal or unenforceable by a court of
competent jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those as
to which it is so declared illegal or unenforceable, shall not be affected
thereby, and each portion and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.


 


11.           Notices.  Any and all notices, requests, demands and
other communications provided for by this Agreement shall be in writing and
shall be effective when delivered in person, consigned to a reputable national
courier service or deposited in the United States mail, postage prepaid, and
addressed to the Executive at his last known address on the books of the
Company or, in the case of the Company, at its principal place of business in
Cambridge, Massachusetts, attention of the Senior Vice President of Human
Resources with a copy to the Office of the General Counsel of the Company, or
to such other address as either party may specify by notice to the other
actually received.


 


12.           Not a Contract for a
Fixed Term.  The Executive
acknowledges and agrees that this Agreement does not in any way obligate the
Company to retain his services for a fixed period or at a fixed level of compensation;
nor does it in any way restrict his right or that of the Company to terminate
his employment at any time, with or without notice or cause.


 


13.           Entire Agreement;
Amendments; Waivers; Survival.  This
Agreement sets forth the entire agreement between me and the Company and
supersedes all prior and contemporaneous communications, agreements and
understandings, written or oral, with respect to the subject matter hereof;
provided, however, that this Agreement shall not terminate or supersede the
employment agreement between the Executive and the Company of even date hereof;
nor shall it supersede any confidentiality of other obligations the Executive
may have in connection with his service on the Board. This Agreement may not be
modified or amended, and no breach shall be deemed to be waived, unless agreed
to in writing by the Executive and an expressly authorized member of the
Board.  If any provision of this
Agreement should, for any reason, be held invalid or unenforceable in any
respect, it shall not affect any other provisions, and shall be construed by
limiting it so as to be enforceable to the maximum extent permissible by law.
Provisions of this Agreement shall survive any termination of the Executive’s
employment to the extent so provided in this Agreement or if necessary or
desirable to accomplish the purpose of other surviving provisions.


 


14.           Headings and
Counterparts.  The headings and
captions in this Agreement are for convenience only and in no way define or
describe the scope or content of any provision of this Agreement.  This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which together
shall constitute one and the same instrument.


 


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15.           Governing Law.  This is a Massachusetts contract and shall be
construed and enforced under and be governed in all respects by the laws of the
Commonwealth of Massachusetts, without regard to the conflict of laws
principles thereof.


 


16.           Executive’s Representations.  In signing this Agreement, the Executive
represents and warrants to the Company that he has read and understood all of
its terms; that he has had a full and reasonable opportunity to consider its
terms and to consult with an attorney and any person of his choosing before
signing, if he wished to do so; that he has not relied on any agreements or
representations, express or implied, concerning the subject matter hereof that
are not set forth expressly in this Agreement; 
and that he has signed this Agreement knowingly and voluntarily.


 


Intending to
be legally bound hereby, the Executive has signed this Agreement under seal to
take effect as of the date first written above.


 


	
  THE EXECUTIVE:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature:

  	
  /s/ Matthew W. Emmens

  	
   

  
	
   

  	
  Matthew W. Emmens

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Accepted and Agreed:

  	
   

  
	
  VERTEX PHARMACEUTICALS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Charles A. Sanders

  	
   

  
	
   

  	
  Charles A. Sanders

  	
   

  
	
   

  	
  Chairman of the Board

  	
   

  
				



 


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