Exhibit
10.1
VERTEX
PHARMACEUTICALS INCORPORATED
EMPLOYEE
STOCK PURCHASE PLAN
(as
amended and restated
May 31,
2007)
ARTICLE
1
PURPOSE
AND DEFINITIONS
SECTION 1.1.
PURPOSE. The purpose of the Vertex Pharmaceuticals
Incorporated Employee Stock Purchase Plan is to provide employees
with an opportunity to purchase Common Stock in the Company through
payroll deductions, thereby encouraging employees to share in the
economic growth and success of the Company through stock
ownership.
SECTION 1.2.
DEFINITIONS. Whenever used in the Plan, unless the context
clearly indicates otherwise, the following terms shall have the
following meanings:
(a)
“BENEFICIARY” with
respect to a Participant, means the beneficiary designated by the
Participant under the group term life insurance plan maintained by
the Company or such other beneficiary as may be designated by a
Participant for purposes of this Plan.
(b)
“BOARD OF
DIRECTORS” means the Board of Directors of the
Company.
(c)
“CODE” means the
Internal Revenue Code of 1986, as the same may be amended from time
to time, and references thereto shall include the valid Treasury
regulations issued thereunder.
(d)
“COMMITTEE” means
the Management Development and Compensation Committee of the Board
of Directors or such other committee of the Board of Directors
designated by the Board of Directors to administer the
Company’s equity compensation plans.
(e)
“COMMON STOCK”
means shares of the $.01 par value common stock of the Company and
any other stock or securities resulting from the adjustment thereof
or substitution therefor as described in
Section 3.4.
(f)
“COMPANY” means
Vertex Pharmaceuticals Incorporated or any successor by merger,
purchase, or otherwise.
(g)
“COMPENSATION”
means the cash compensation received by an Employee for services,
including pre-tax employee compensation made to the Company’s
401(k) savings plan, but not including overtime or
bonuses.
(h)
“EFFECTIVE DATE”
means July 1, 1992.
(i)
“ELECTION” means an
election by a Participant to terminate an Offering Period on the
first Purchase Date of such Offering Period, which election shall
be made within such Offering Period and prior to such First
Purchase Date and shall be in writing on a form furnished by the
Company for such purpose and shall be made by having such
Participant complete, sign and file such form with the Company in
the manner prescribed by the Company.
(j)
“EMPLOYEE” means
any person who receives a regular stated compensation from the
Company or a Subsidiary other than a pension, severance pay,
retainer, or fee under contract.
(k)
“FAIR MARKET VALUE”
of a Share of Common Stock on a particular date shall be the
average of the highest and lowest quoted selling prices on such
date (the “valuation date”) on the securities market
where the Common Stock of the Company is traded, or if there were
no sales on the valuation date, on the next preceding date within a
reasonable period (as determined in the sole discretion of the
Committee) on which there were sales. In the event that there were
no sales in such a market within a reasonable period, the fair
market value shall be as determined in good faith by the Committee
in its sole discretion. The Fair Market Value as determined in this
paragraph shall be rounded down to the next lower whole cent if the
foregoing calculation results in fractional cents.
(l)
“OFFERING” means
the offering of shares of Common Stock to Participants pursuant to
this Plan.
(m)
“OFFERING DATE”
means each May 15 and November 15. If any such date shall
fall other than on a business day, then the Offering Date shall be
the next succeeding business day.
(n)
“OFFERING PERIOD”
means either (i) the period from an Offering Date through the
second Purchase Date following such Offering Date or (ii) if a
Participant validly exercises an Election, the period from an
Offering Date through the first Purchase Date following such
Offering Date.
(o)
“PARTICIPANT” means
an Employee who has elected to participate in the Plan.
(p)
“PURCHASE DATE”
means each May 14 and November 14.
(q)
“PLAN” means the
Vertex Pharmaceuticals Incorporated Employee Stock Purchase Plan,
an “employee stock purchase plan” within the meaning of
Section 423(b) of the Code, together with any and all
amendments thereto.
(r)
“STOCK PURCHASE
ACCOUNT,” with respect to a Participant, means the account
established on the books and records of the Company or a Subsidiary
for such Participant representing the payroll deductions credited
to such account in accordance with the provisions of the
Plan.
(s)
“SUBSIDIARY” means
any corporation, fifty percent (50%) or more of the total combined
voting power of all classes of stock of which is beneficially
owned, directly or indirectly, by the Company.
ARTICLE
II
PARTICIPATION
SECTION 2.1.
PARTICIPATION REQUIREMENTS.
(a)
COMMENCEMENT OF
PARTICIPATION. Subject to Section 2.2 and
Section 3.2(b), each person who becomes an Employee after the
Effective Date may become a Participant in the Plan on any Offering
Date following the date on which such person becomes an
Employee.
(b)
ELIGIBILITY OF FORMER
PARTICIPANTS. If a person terminates employment with the
Company after becoming a Participant and subsequently resumes
employment with the Company, such person will again become eligible
to participate on the Offering Date next following such resumption
of employment with the Company.
SECTION 2.2.
EXCLUSIONS. Notwithstanding any provision of the Plan to the
contrary, in no event shall the following persons be eligible to
participate in the Plan:
(a)
Any Employee whose customary
employment is twenty (20) hours or less per week;
(b)
Any Employee whose customary
employment is for not more than five (5) months in any
calendar year; or
(c)
Any Employee who, as of the
beginning of an Offering Period, owns (or under
Section 423(b)(3) of the Code would be deemed to own) stock
possessing five percent (5%) or more of the total combined voting
power or value of all classes of stock of the Company or a
Subsidiary.
2
ARTICLE
III
OFFERING
OF COMMON STOCK
SECTION 3.1.
RESERVATION OF COMMON STOCK. The Board of Directors shall
reserve 1,748,660 shares of Common Stock for issuance under
the Plan after March 17, 2004, subject to adjustment in
accordance with Section 3.4, provided that no more than
248,660 of such shares shall be issued prior to May 15,
2004.
SECTION 3.2.
OFFERING OF COMMON STOCK.
(a)
GENERAL. Subject to
Section 3.2(b), each Participant in the Plan on an Offering
Date shall be entitled to purchase shares of Common Stock on each
Purchase Date within the Offering Period that begins with such
Offering Date with the amounts deducted from such
Participant’s Compensation during such Offering Period
pursuant to Article IV, provided, however, that a Participant
shall not participate in more than one Offering Period
simultaneously. The purchase price for such shares of Common Stock
shall be determined under Section 3.3.
(b)
LIMITATIONS.
Notwithstanding Section 3.2(a), no employee may accrue rights
to purchase shares of Common Stock attributable to an Offering
Period in excess of $25,000 of fair market value of such shares
(measured as of the relevant Offering Date) for each calendar year
during which such rights are outstanding. For any year, this limit
shall be further reduced by the fair market value of stock
(measured as of the relevant Offering Date for such stock)
purchasable under any prior outstanding rights relating to such
calendar year under this Plan and all other Code section 423
employee stock purchase plans of the Company or any Subsidiary.
This paragraph is intended to be consistent with the limitation of
Code section 423(b)(8) and shall be interpreted
accordingly.
SECTION 3.3.
DETERMINATION OF PURCHASE PRICE FOR OFFERED COMMON STOCK. The
purchase price per share of the shares of Common Stock to be
acquired by a Participant on a Purchase Date pursuant to an
Offering shall be equal to eighty-five percent (85%) of the lesser
of:
(a)
the Fair Market Value of a
share of Common Stock on the Offering Date for such Offering
Period; or
(b)
the Fair Market Value of a
share of Common Stock on such Purchase Date;
provided, however, in no
event shall the purchase price be less than the par value of a
share of Common Stock.
SECTION 3.4.
EFFECT OF CERTAIN TRANSACTIONS. The number of shares of
Common Stock reserved for the Plan pursuant to Section 3.1,
the maximum number of shares of Common Stock offered pursuant to
Section 3.2(b), and the determination under Section 3.3
of the purchase price per share of the shares of Common Stock
offered to Parti
