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EXHIBIT 4.3
FIRST AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of February 21, 1997, to the Rights Agreement, dated
as of July 1, 1991 (the "Rights Agreement"), between Vertex Pharmaceuticals
Incorporated, a Massachusetts corporation (the "Company"), and The First
National Bank of Boston, as Rights Agent (the "Rights Agent").
The Company and the Rights Agent have heretofore executed and entered into
the Rights Agreement. Pursuant to Section 27 of the Rights Agreement, the
Company and the Rights Agent may from time to time supplement or amend the
Rights Agreement in accordance with the provisions of Section 27 thereof. All
acts and things necessary to make this Amendment a valid agreement, enforceable
according to its terms, have been done and performed, and the execution and
delivery of this Amendment by the Company and the Rights Agent have been in all
respects duly authorized by the Company and the Rights Agent.
In consideration of the foregoing and the mutual agreements set forth
herein, the parties hereto agree as follows:
1. Section 1(a) of the Rights Agreement is hereby amended in its entirety
to read as follows:
(a) "Acquiring Person" shall mean any Person (as hereinafter defined) who
or which, together with all Affiliates and Associates (as such terms are
hereinafter defined) of such Person, shall be the Beneficial Owner (as
hereinafter defined) of 15% or more of the Common Shares of the Company then
outstanding, but shall not include the Company, any Subsidiary (as hereinafter
defined) of the Company, any employee benefit plan of the Company or any
Subsidiary of the Company, any entity holding Common Shares for or pursuant to
the terms of any such plan, or any Person who, alone or together, with all
Affiliates and Associates of such Person, is, as of the date of this Agreement,
the Beneficial Owner of 15% or more of the Common Shares of the Company then
outstanding. Notwithstanding the foregoing, no Person shall become an "Acquiring
Person" as a result of an acquisition of Common Shares by the Company which, by
reducing the number of shares outstanding, increases the proportionate number of
shares beneficially owned by such Person to 15% or more of the Common Shares of
the Company then outstanding; provided, however, that if a Person shall become
the Beneficial Owner of 15% or more of the Common Shares of the Company then
outstanding by reason of share purchases by the Company and shall, after such
share purchases by the Company, become the Beneficial Owner of any additional
Common Shares of the Company, then such Person shall be deemed to be an
"Acquiring Person".
2. Section 3(a) of the Rights Agreement is hereby amended in its entirety
to read as follows:
(a) Until the earlier of (i) the tenth day after the Shares Acquisition
Date or (ii) the tenth business day (or such later date as may be determined by
action of the Board of Directors prior to such time as any Person becomes an
Acquiring Person) after the date of the commencement by any Person (other than
the Company, any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company or any entity holding Common Shares
for or
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pursuant to the terms of any such plan) of, or of the first public announcement
of the intention of any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any Subsidiary of the
Company or any entity holding Common Shares for or pursuant to the terms of any
such plan) to commence, a tender or exchange offer the consummation of which
would result in any Person becoming the Beneficial Owner of Common Shares
aggregating 15% or more of the then outstanding Common Shares (including any
such date which is after the date of this Agreement and prior to the issuance of
the Rights; the earlier of such dates being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for Common Shares
registered in the names of the holders thereof (which certificates shall also be
deemed to be Right Certificates) and not by separate Right Certificates, and (y)
the right to receive Right Certificates will be transferable only in connection
with the transfer of Common Shares. As soon as practicable after the
Distribution Date, the Company will prepare and execute, the Rights Agent will
countersign, and the Company will send or cause to be sent (and the Rights Agent
will, if requested, send) by first-class, insured, postage-prepaid mail, to each
record holder of Common Shares as of the close of business on the Distribution
Date, at the address of such holder shown on the records of the Company, a Right
Certificate, in substantially the form of Exhibit B hereto (a "Right
Certificate"), evidencing one Right for each Common Share so held. As of the
Distribution Date, the Rights will be evidenced solely by such Right
Certificates.
3. Section 7(b) of the Rights Agreement is hereby modified and amended by
deleting the amount $60 and substituting $270 therefore. There shall be no
adjustment to the Purchase Price as set forth in Section 7(b), as modified and
amended hereby, pursuant to Section 11(a)(i) with respect to any event described
in Section 11(a)(i) which occurred prior to the date of this Amendment.
4. If any term, provision, covenant or restriction of this Amendment is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment, and the Rights Agreement, shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
5. This Amendment shall be deemed to be a contract made under the laws of
the Commonwealth of Massachusetts and for all purposes shall be governed by and
construed in accordance with the laws of such Commonwealth applicable to
contracts to be made and performed entirely within such Commonwealth.
6. This Amendment may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
7. In all respects not inconsistent with the terms and provisions of this
Amendment to the Rights Agreement, the Rights Agreement is hereby ratified,
adopted, approved and confirmed. In executing and delivering this Amendment, the
Rights Agent shall be entitled to all the privileges and immunities afforded to
the Rights Agent under the terms and conditions of the Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested, all as of the date and year first above written.
Attest: VERTEX PHARMACEUTICALS
INCORPORATED
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxx
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Title: Corporate Attorney Title: Senior Vice President
Attest: THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
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Name: Name:
Title: Account Manager Title: Administration Manager