Exhibit 10.64


 


Amendment No. 2


to


Amended and Restated Employment Agreement


 


This
Amendment No. 2 to the Amended and Restated Employment Agreement, dated November 8,
2004, as amended on February 11, 2008 (the “Agreement”), between
Vertex Pharmaceuticals Incorporated, a Massachusetts corporation (together with
its successors and assigns, the “Company”) and Kenneth S. Boger (the “Executive”)
is entered into by the parties on December 29, 2008.  The parties hereby agree that the Agreement
shall be amended as follows:


 


1.                                      Section 1(g) shall be amended by
adding the following to the end thereof:


 


“Notwithstanding the
foregoing, to the extent that any payments under this Agreement that are payable
upon disability constitute nonqualified deferred compensation subject to Section 409A
of the Code, “DISABILTY” or “DISABLED” shall mean, by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or can be expected to last for a continuous period of not less than 12
months, the Executive is either (a) unable to engage in any substantial
gainful activity or (b) receiving income replacement benefits for a period
of not less than three months under any disability plan covering employees of
the Company.  For purposes of the immediately
foregoing sentence, the existence of a disability will be determined in all
respects in accordance with the provisions of Section 409A(a)(2)(C) of
the Code.


 


2.                                      Section 8 shall be amended by inserting
the following language at the end of the current language, as follows:


 


“Any reimbursement in
one calendar year shall not affect the amount that may be reimbursed in any
other calendar year, and a reimbursement (or right thereto) may not
be exchanged or liquidated for another benefit or payment.  Any expense
reimbursements subject to Section 409A of the Code shall be made no later
than the end of the calendar year following the calendar year in which such
business expense is incurred by the Executive.”


 


3.                                      Section 10(a)(vii) shall be amended
in its entirety to read as follows:


 


“(vii)       six months of Severance Pay, payable in
accordance with the regular payroll practices of the Company, commencing on the
first day of the month following the month in which termination under this SECTION
10(a) occurred;”


 


4.                                      Section 10(b) shall
be amended to delete the last paragraph thereof in its entirety.


 


5.                                      The
first phrase of Section 10(c)(iii) shall be amended to read as
follows:


 


“(iii)        Twelve months of Severance Pay, payable
in accordance with the regular payroll practices of the Company, commencing on
the first day of the month following the month during which the Executive’s
employment is terminated under this SECTION 10(c);”


 


6.                                      Section 10(c)(viii) shall
be amended in its entirety as follows:


 


“(viii)      until the earlier of (a) the
expiration of the term of the Severance Pay paid under Section 10(c)(iii) above
or (b) the date the Executive receives equivalent coverage and benefits
under the 


 

















 


plan of a subsequent employer, the Company shall
provide the Executive with medical and dental insurance benefits substantially
similar to those which the Executive was receiving immediately prior to the
termination of his employment, including any employer paid portion of the
premium, subject to the Executive’s election of benefits under the Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”) in accordance with the
applicable plan procedures. During such time that the Executive is receiving
such continued medical and dental benefits from the Company, the Company shall
also provide Executive with life insurance benefits substantially similar to
those which the Executive was receiving immediately prior to the termination of
his employment


 


7.                                      Section 26 shall be amended as follows:


 


(i)            By adding the following to the end
of the first paragraph thereof:


 


“The Company will pay to Executive the Additional
Amount within 10 days after the Executive delivers to the Company a calculation
of the Additional Amount, together with such supporting documentation as the
Company may reasonably require, provided that the Company does not object to
such calculation.”


 


(ii)           By adding the following to the end of
the third paragraph thereof:


 


“Notwithstanding the foregoing, no payments under
this Section 26 from the Company to Executive shall be made after the end
of the calendar year immediately following the calendar year in which the
Executive remits the related taxes to the applicable taxing authority.”


 


8.             Section 27
shall be amended to add the following at the end of the current language:


 


“Any portion of a payment that constitutes nonqualified deferred
compensation under Section 409A of the Code payable as a result of a
termination of employment may only be paid upon a “separation from service”
under Section 409A(a)(2)(A)(i) of the Code. 
For purposes of clarification, the foregoing sentence shall not cause
any forfeiture of benefits on the part of the Executive, but shall only act as
a delay until such time as a “separation from service” occurs.”


 

















 


As so amended, the Employment Agreement shall
remain in full force and effect. 
Executed as of the date set forth above:


 


	
   

  	
   

  	
  VERTEX PHARMACEUTICALS INCORPORATED

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Valerie Andrews

  
	
   

  	
   

  	
   

  	
  V.P. & Deputy General Counsel

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Kenneth S. Boger

  
	
   

  	
   

  	
   

  	
  Kenneth S. Boger