Exhibit 4.5


 


RESALE
REGISTRATION RIGHTS AGREEMENT


 


Resale Registration Rights
Agreement (this “Agreement”), dated August 2, 2006, between Vertex
Pharmaceuticals Incorporated, a Massachusetts corporation (together with any
successor entity, the “Issuer”), and Highbridge International LLC (the “Investor”).


 


Pursuant to the Exchange
Agreement, dated August 2, 2006, between the Issuer and the Investor (the “Exchange
Agreement”), the Issuer has agreed to issue 136,489 restricted shares (the “Shares”)
of common stock, par value $0.01 per share, of the Issuer (the “Common Stock”)
to Investor in exchange for $2,000,000 principal amount of 53⁄4% Convertible
Senior Subordinated Notes due 2011. In connection with the exchange, the Issuer
has agreed to provide the registration rights set forth in this Agreement.


 


The parties hereby agree as
follows:


 


1.                                      DEFINITIONS. As used in this Agreement, the following
capitalized terms shall have the following meanings:


 


AGREEMENT:  As defined in the preamble hereto.


 


BUSINESS DAY:  A day other than a Saturday or Sunday or any
federal holiday in the United States.


 


COMMISSION:  Securities and Exchange Commission.


 


COMMON STOCK:  As defined in the preamble hereto.


 


EFFECTIVENESS PERIOD:  As defined in Section 2(ii) hereof.


 


EXCHANGE ACT:  Securities Exchange Act of 1934, as amended.


 


ISSUER:  As defined in the preamble hereto.


 


PERSON:  An individual, partnership, corporation,
unincorporated organization, trust, joint venture or a government or agency or
political subdivision thereof.


 


PROSPECTUS:  The prospectus included in a Shelf
Registration Statement, as amended or supplemented by any prospectus supplement
and by all other amendments thereto, including post-effective amendments, and
all material incorporated by reference into such Prospectus.


 


SECURITIES ACT:  Securities Act of 1933, as amended.


 


SHELF REGISTRATION
STATEMENT:  As defined in Section 2(i)
hereof.


 


SUSPENSION PERIOD:  As defined in Section 4(b)(i) hereof.


 


TRANSFER RESTRICTED
SECURITIES: Each Share until the earlier of:


 


(i)                                     the date on which such Share has been
effectively registered under the Securities


 

















 


Act
and disposed of in accordance with the Shelf Registration Statement;


 


(ii)                                  the earlier of (i) the date on which such
Share is transferred in compliance with Rule 144 under the Securities Act or
may be sold or transferred pursuant to Rule 144(k) under the Securities Act (or
any other similar provision then in force) or (ii) November 30, 2007; or


 


(iii)                               the date on which such Share ceases to be
outstanding (whether as a result of redemption, repurchase and cancellation,
conversion or otherwise).


 


2.                                      SHELF REGISTRATION.


 


The
Issuer shall:


 


(i)                                     not later than August 16, 2006, cause to be
filed an automatic shelf registration statement, as defined in Rule 405 under
the Securities Act, or an automatically effective, post-effective amendment to
a currently effective registration statement (the “Shelf Registration Statement”),
which Shelf Registration Statement shall, among other things, provide for
resales of all Transfer Restricted Securities held by the Investor (it being
understood that the Shelf Registration Statement may include other securities
of the Issuer with respect to registration rights have been granted in
connection with other exchanges);


 


(ii)                                  use its best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 3(b) hereof to the extent necessary to
ensure that (A) it is available for resales by the Investor of Transfer Restricted
Securities entitled to the benefit of this Agreement and (B) conforms with the
requirements of this Agreement and the Securities Act and the rules and
regulations of the Commission promulgated thereunder as announced from time to
time for a period (the “Effectiveness Period”) of:


 


(1)                                  up to November 30, 2007; or


 


(2)                                  such shorter period that will terminate when
(X) the Investor is able to sell all Transfer Restricted Securities immediately
without restriction pursuant to Rule 144(k) under the Securities Act or any
successor rule thereto, (Y) when all Transfer Restricted Securities have ceased
to be outstanding (whether as a result of repurchase and cancellation or
otherwise) or (Z) all Transfer Restricted Securities registered under the Shelf
Registration Statement have been sold.


 


3.                                      REGISTRATION PROCEDURES.


 


(a)                                  In connection with the Shelf Registration
Statement, the Issuer shall comply with all the provisions of Section 3(b)
hereof and shall use its commercially reasonable efforts to effect such registration
to permit the sale of the Transfer Restricted Securities being


 


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sold in accordance with the
intended method or methods of distribution thereof, and pursuant thereto, shall
as expeditiously as possible prepare and file with the Commission a Shelf
Registration Statement relating to the registration on any appropriate form
under the Securities Act.


 


(b)                                 In connection with the Shelf Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities, the Issuer shall:


 


(i)                                     Subject to any notice by the Issuer in
accordance with this Section 3(b) of the existence of any fact or event of the
kind described in Section 4(b)(iii)(D), use its commercially reasonable efforts
to keep the Shelf Registration Statement continuously effective during the
Effectiveness Period. Upon the occurrence of any event that would cause the
Shelf Registration Statement or the Prospectus contained therein (A) to contain
a material misstatement or omission or (B) not be effective and usable for
resale of Transfer Restricted Securities during the Effectiveness Period, the
Issuer shall file promptly an appropriate amendment to the Shelf Registration
Statement or a report filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, in the case of clause (A), correcting
any such misstatement or omission, and, in the case of either clause (A) or
(B), use its commercially reasonable efforts to cause any such amendment to be
declared effective and the Shelf Registration Statement and the related
Prospectus to become usable for their intended purposes as soon as practicable
thereafter. Notwithstanding the foregoing, the Issuer may suspend the effectiveness
of the Shelf Registration Statement by written notice to the Investor for a
period not to exceed an aggregate of 45 days in any 90-day period (each such
period, a “Suspension Period”) if:


 


(x)                                   an event occurs and is continuing as a result
of which the Shelf Registration Statement would, in the Issuer’s reasonable
judgment, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and


 


(y)                                 the Issuer reasonably determines that the
disclosure of such event at such time would have a material adverse effect on
the business of the Issuer (and its subsidiaries, if any, taken as a whole);


 


PROVIDED that in the event the disclosure relates to
a previously undisclosed proposed or pending material business transaction, the
disclosure of which would impede the Issuer’s ability to consummate such
transaction, the Issuer may extend a Suspension Period from 45 days to 60 days;
PROVIDED, HOWEVER, that Suspension Periods shall not exceed an aggregate of 90
days in any 360-day period.


 


(ii)                                  Prepare and file with the Commission such
amendments and post-effective amendments to the Shelf Registration Statement as
may be necessary to keep the Shelf Registration Statement effective during the
Effectiveness Period; cause the Prospectus to be supplemented by any required
Prospectus supplement,


 


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and as so supplemented to be filed pursuant to Rule
424 under the Securities Act, and to comply fully with the applicable
provisions of Rules 424, 430A and 430B under the Securities Act in a timely
manner; and comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by the Shelf Registration Statement
during the applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in the Shelf Registration
Statement or Prospectus supplement.


 


(iii)                               Advise the Investor promptly:


 


(A)                              with respect to the Shelf Registration
Statement or any post-effective amendment thereto, when the same has become
effective, and when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed,


 


(B)
of any request by the Commission for amendments to the Shelf Registration
Statement or amendments or supplements to the Prospectus or for additional
information relating thereto,


 


(C)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Shelf Registration Statement under the Securities Act or
of the suspension by any state securities commission of the qualification of
the Transfer Restricted Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding purposes, or


 


(D)
of the existence of any fact or the happening of any event, during the
Effectiveness Period, that makes any statement of a material fact made in the
Shelf Registration Statement or the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Shelf Registration
Statement or the Prospectus in order to make the statements therein not
misleading.


 


If at any time the Commission
shall issue any stop order suspending the effectiveness of the Shelf
Registration Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities or
Blue Sky laws, the Issuer shall use its commercially reasonable efforts to
obtain the withdrawal or lifting of such order at the earliest possible time.


 


(iv)                              Furnish to the Investor a copy of the Shelf Registration
Statement and copies of any Prospectus included therein or any amendments or
supplements to the Shelf Registration Statement or Prospectus (other than
documents incorporated by reference after the initial filing of the Shelf
Registration Statement).


 


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(v)                                 Make available at reasonable times for
inspection by the Investor and any attorney or accountant retained by the
Investor, all financial and other records, pertinent corporate documents and
properties of the Issuer as shall be reasonably necessary to enable them to
exercise any applicable due diligence responsibilities, and cause the Issuer’s
officers, directors, managers and employees to supply all information
reasonably requested by any such representative or representatives of the
Investor, attorney or accountant in connection with the Shelf Registration
Statement after the filing thereof and before its effectiveness; PROVIDED,
HOWEVER, that any information designated by the Issuer as confidential at the
time of delivery of such information shall be kept confidential by the
recipient thereof.


 


(vi)                              If requested by the Investor, promptly
incorporate in the Shelf Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information as the
Investor may reasonably request to have included therein, including, without
limitation: (1) information relating to the “Plan of Distribution” of the
Transfer Restricted Securities, and (2) any other terms of the offering of the
Transfer Restricted Securities to be sold in such offering; and make all
required filings of such Prospectus supplement or post-effective amendment as
soon as reasonably practicable after the Issuer is notified of the matters to
be incorporated in such Prospectus supplement or post-effective amendment. Notwithstanding
the foregoing, following the effective date of the Shelf Registration
Statement, the Issuer shall not be required to file more than one such
supplement or post-effective amendment to reflect changes in the amount of
Transfer Restricted Securities held by the Investor at the request of such
Investor in any 30-day period.


 


(vii)                           Furnish to the Investor without charge, at
least one copy of the Shelf Registration Statement, as first filed with the
Commission, and of each amendment thereto (and any documents incorporated by
reference therein or exhibits thereto (or exhibits incorporated in such
exhibits by reference) as the Investor may request).


 


(viii)                        Deliver to the Investor, without charge, as
many copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as the Investor reasonably may request; subject
to any notice by the Issuer in accordance with this Section 3(b) of the existence
of any fact or event of the kind described in Section 3(b)(iii)(D), the Issuer
hereby consents to the use of the Prospectus and any amendment or supplement
thereto by the Investor, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment or
supplement thereto.


 


(ix)                                Cooperate with the Investor to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive legends
(unless required by applicable securities laws); and enable such Transfer
Restricted Securities to be in such denominations and


 


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registered in such names as the Investor may request
at least two Business Days before any sale of Transfer Restricted Securities
made by the Investor.


 


(x)                                   Use its commercially reasonable efforts to
cause the Transfer Restricted Securities covered by the Shelf Registration
Statement to be registered with or approved by such other U.S. governmental
agencies or authorities as may be necessary to enable the seller or sellers
thereof or the underwriter(s), if any, to consummate the disposition of such
Transfer Restricted Securities.


 


(xi)                                Subject to Section 3(b)(i) hereof, if any
fact or event contemplated by Section 3(b)(iii)(D) hereof shall exist or have
occurred, use its reasonable commercially reasonable efforts to prepare a
supplement or post-effective amendment to the Shelf Registration Statement or
related Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the purchasers
of Transfer Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.


 


(xii)                             Provide CUSIP numbers for all Transfer
Restricted Securities not later than the effective date of the Shelf
Registration Statement.


 


(xiii)                          Otherwise use its commercially reasonable
efforts to comply with all applicable rules and regulations of the Commission
and all reporting requirements under the rules and regulations of the Exchange
Act.


 


(c)                                  The Investor agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from the Issuer of the
existence of any fact of the kind described in Section 3(b)(iii)(D) hereof, the
Investor will discontinue disposition of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, and hold the content of such
notice from the Issuer in confidence, until:


 


(i)                                     the Investor has received copies of the
supplemented or amended Prospectus contemplated by Section 3(b)(viii) hereof;
or


 


(ii)                                  the Investor is advised in writing by the
Issuer that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the Prospectus.


 


If so directed by the
Issuer, the Investor will deliver to the Issuer all copies, other than
permanent file copies then in the Investor’s possession, of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of such notice of suspension.


 


(d)                                 (1)                                  The Investor shall furnish to the Issuer in
writing such information regarding the Investor and the proposed distribution
by the Investor of its Transfer Restricted Securities as the Issuer may
reasonably request for use in connection with the Shelf Registration Statement
or Prospectus or preliminary Prospectus included therein. The Investor shall
promptly furnish to the Issuer in writing such other information as the Issuer
may from time to time


 


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reasonably request in
writing. The Investor agrees to furnish promptly to the Issuer all information
required to be disclosed in order to make information previously furnished to
the Issuer by the Investor not materially misleading. The Issuer shall take
action so that the Investor is permitted to deliver the Prospectus forming a
part thereof as of such time to purchasers of the Investor’s Transfer
Restricted Securities in accordance with applicable law.


 


4.                                      REGISTRATION EXPENSES.


 


(a)                                  All expenses incident to the Issuer’s
performance of or compliance with this Agreement shall be borne by the Issuer
regardless of whether a Shelf Registration Statement becomes effective,
including, without limitation:


 


(i)                                     all registration and filing fees and
expenses;


 


(ii)                                  all fees and expenses of compliance with
federal securities and state Blue Sky or securities laws;


 


(iii)                               all expenses of printing (including printing
of Prospectuses, messenger and delivery services and telephone;


 


(iv)                              all fees and disbursements of counsel to the
Issuer;


 


(v)                                 all application and filing fees in connection
with listing (or authorizing for quotation) the Common Stock on a national
securities exchange or automated quotation system pursuant to the requirements
hereof; and


 


(vi)                              all fees and disbursements of independent
certified public accountants of the Issuer (including the expenses of any
special audit and comfort letters required by or incident to such performance).


 


The
Issuer shall bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal,
accounting or other duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the Issuer.


 


5.                                      INDEMNIFICATION AND
CONTRIBUTION.


 


(a)                                  The Issuer agrees to indemnify and hold
harmless the Investor and each Person, if any, who controls the Investor within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all loss, liability, claim, damage and expense whatsoever,
as incurred, arising out of any untrue statement or alleged untrue statement of
a material fact contained in any Shelf Registration Statement (or any amendment
or supplement thereto), including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or arising out of any untrue statement or alleged untrue statement
of a material fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were


 


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made, not misleading; PROVIDED,
HOWEVER, that this indemnity agreement shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Issuer by the Investor
expressly for use in a Shelf Registration Statement (or any amendment thereto)
or any Prospectus (or any amendment or supplement thereto).


 


(b)                                 The Investor agrees to indemnify and hold
harmless the Issuer, and each Person, if any, who controls the Issuer, within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, against any and all loss, liability, claim, damage and expense described
in the indemnity contained in Section 5(a) hereof, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in any Shelf Registration Statement (or any amendment or
supplement thereto) or any Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information with respect to the
Investor furnished to the Issuer by the Investor expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto); PROVIDED, HOWEVER, that the Investor shall
not be liable for any claims hereunder in excess of the amount of net proceeds
received by the Investor from the sale of Transfer Restricted Securities
pursuant to such Shelf Registration Statement.


 


(c)                                  Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure so to notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of such action; PROVIDED, HOWEVER, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party)
also be counsel to the indemnified party. In no event shall the indemnifying
party or parties be liable for the fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances.


 


For purposes of this Section
5, each Person, if any, who controls the Investor within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Investor, and each director of the Issuer, and
each Person, if any, who controls the Issuer within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Issuer.


 


6.                                      MISCELLANEOUS.


 


(a)                                  NO INCONSISTENT AGREEMENTS. The Issuer will
not, on or after the date of this Agreement, enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Investor in this Agreement or otherwise conflicts with the provisions hereof.


 


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(b)                                 AMENDMENTS AND WAIVERS. This Agreement may
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given, unless the Issuer has
obtained the written consent of the Investor.


 


(c)                                  NOTICES. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:


 


(i)                                     if to the Investor:


 


Highbridge Capital
Management, LLC


9 West 57th Street 

New York, NY  10019


Facsimile: (212) 287-4915


 


(ii)                                  if to the Issuer:


 


Vertex
Pharmaceuticals Incorporated 130 Waverly Street

Cambridge, Massachusetts 02139

Attention: Investor Relations


 


With
a copy to:


 


Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.


One
Financial Center Boston, Massachusetts 02111

Attention: Michael Fantozzi, Esq.


 


All such notices and communications shall be deemed
to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and on the next Business Day, if timely delivered to an air
courier guaranteeing overnight delivery.


 


(d)                                 SUCCESSORS AND ASSIGNS. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties, PROVIDED, HOWEVER, that this Agreement shall not inure to the
benefit of or be binding upon a successor or assign of the Investor unless and
to the extent such successor or assign acquired Transfer Restricted Securities
from the Investor. If any transferee of the Investor shall acquire Transfer
Restricted Securities, in any manner, whether by operation of law or otherwise,
such Transfer Restricted Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Transfer Restricted
Securities such person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement.


 


(e)                                  COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed


 


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shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.


 


(f)                                    HEADINGS. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.


 


(g)                                 GOVERNING LAW. This Agreement shall be
governed by, and construed in accordance with, the law of the Commonwealth of
Massachusetts, without regard to conflict of laws principles thereof.


 


(h)                                 SEVERABILITY. If any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.


 


(i)                                     ENTIRE AGREEMENT. This Agreement is intended
by the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by the
Issuer with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 


[SIGNATURES
PAGE FOLLOWS]


 


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[Counterpart signature page of Resale Registration Rights Agreement
made as of the 2nd day of August, 2006, by and among Vertex Pharmaceuticals
Incorporated and the undersigned.]


 


IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first written above.


 


	
   

  	
  VERTEX
  PHARMACEUTICALS

  
	
   

  	
  INCORPORATED

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard C. Garrison

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:
  

  	
  Richard C. Garrison

  
	
   

  	
  Title:
  

  	
  Senior
  Vice President and Catalyst

  
	
   

  	
   

  
	
   

  	
  HIGHBRIDGE
  INTERNATIONAL LLC

  
	
   

  	
   

  
	
   

  	
  BY:
  HIGHBRIDGE CAPITAL MANAGEMENT, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  A. J. Starr

  	
   

  
	
   

  	
   

  
	
   

  	
  Authorized Signatory

  
					



 


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