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EXHIBIT 4.3
FORM OF
FIRST AMENDMENT TO RIGHTS AGREEMENT
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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:
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(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 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.
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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:_____________________________ By:______________________________
Name: Name:
Title: Title:
Attest: THE FIRST NATIONAL BANK OF BOSTON
By:_____________________________ By:______________________________
Name: Name:
Title: Title: