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
