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Exhibit
10.1
Execution
Copy
CONSENT, WAIVER AND
AMENDMENT
TO
CONVERTIBLE NOTES
REGISTRATION RIGHTS AGREEMENT
THIS CONSENT, WAIVER AND
AMENDMENT (this “ Amendment ”) is made on
this 6th day of May, 2005 by and among ViroPharma Incorporated, a
Delaware corporation (the “ Company ”),
and the investors who have delivered an executed counterpart
signature page to this Amendment (collectively, the “
Investors ,” and each individually, an “
Investor ”). Capitalized terms used and not
otherwise defined in this Amendment shall have the respective
meanings ascribed to such terms in the Convertible Notes
Registration Rights Agreement, dated October 18, 2004, among the
Company and the other signatories thereto (the “
Registration Rights Agreement ”).
Background
The Investors are the
registered holders of a portion of the Company’s 6%
Convertible Senior Secured Notes due 2009 (the “
Convertible Notes ”) in the aggregate principal
amount of $62,500,000 outstanding (the “ Outstanding
Convertible Notes ”). Pursuant to the Registration
Rights Agreement, the Company is required to register under the
Securities Act of 1933, as amended (the “ Securities
Act ”), certain Registrable Securities. These
Registrable Securities include: (1) the Outstanding Convertible
Notes; (2) up to $12,500,000 in aggregate principal amount of
additional Convertible Notes (the “ Additional
Convertible Notes ”) issuable upon the exercise of an
option granted pursuant to Section 1(a)(ii) of the Securities
Purchase Agreement (the “ Option ”); and
(3) the shares of the Company’s common stock, par value
$0.002 (the “ Common Stock ”), issuable
upon conversion of any of the Outstanding Convertible Notes and
Additional Convertible Notes.
The Company and the Investors
desire to amend the Registration Rights Agreement to extend the
deadline by which the Company is required to file and cause to be
effective with the Commission a Registration Statement with respect
to the Additional Convertible Notes, if any, issued upon any
exercise of the Option and the shares of Common Stock issuable upon
the conversion of any of such Additional Convertible
Notes.
Pursuant to Section 10 of the
Registration Rights Agreement, any provision of the Registration
Rights Agreement may be amended and the observance of any provision
of the Registration Rights Agreement may be waived only with the
written consent of the Company and the Investors who at the time
thereof hold at least sixty-six and two-thirds percent (66
2/3 %) of the Conversion Shares, determined as if
all of the Convertible Notes held by Investors then outstanding
have been converted into Conversion Shares without regard to any
limitations on conversion of the Convertible Notes (collectively,
the “ Requisite Investors ”).
IN CONSIDERATION of the
foregoing and of the mutual covenants set forth in this Amendment,
the Company and the undersigned Investors, intending to be legally
bound, hereby irrevocably agree as follows in accordance with
Section 10 of the Registration Rights Agreement:
1. Option Registration
Statement . Notwithstanding anything to the contrary contained
in the Registration Rights Agreement, the Company shall not be
required to file any Registration Statement covering the Additional
Convertible Notes, if any, issued upon the exercise of the Option
and the shares of Common Stock issuable upon the conversion of any
of the Additional Convertible Notes (the “ Option
Registration Statement ”) until the Option
Registration Statement Filing Deadline (as defined in Section 2 of
this Amendment).
2. Filing Deadline .
Notwithstanding anything to the contrary contained in the
Registration Rights Agreement, the filing deadline for the Option
Registration Statement and for purposes of determining the
respective rights and obligations of the Company and the Investors
under the Registration Rights Agreement with respect to the filing
of the Option Registration Statement, the Additional Convertible
Notes, if any, and the shares of Common Stock issuable upon the
conversion of any of the Additional Convertible Notes shall be the
date which is five (5) Business Days after the date on which the
Additional Convertible Notes are initially issued by the Company if
the Company’s financial statements would not be
“stale” for purposes of complying with the applicable
rules of Regulation S-X under the Securities Act for such
registration (
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