Exhibit 10.4
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To:
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ViroPharma Incorporated
730 Stockton Drive
Exton, PA 19341
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A/C
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4375-691755
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From:
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Wells Fargo
Bank, National Association
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Subject:
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Agreement
with respect to Issuer Warrant Transaction Reference No.
OTC032307202-204C
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Date:
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March 19, 2009
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This letter agreement (this “
Agreement ”) relates to the Transaction (the “
Transaction ”) entered into between Wells Fargo Bank,
National Association (“ Dealer ”) and ViroPharma
Incorporated (“ Counterparty ”), pursuant to a
letter agreement dated March 20, 2007 entitled Issuer Warrant
Transaction (Transaction Reference Number: OTC032307202-204C)
(the “ Confirmation ”). Capitalized terms used
herein but not otherwise defined shall have the meanings assigned
to them in the Confirmation.
The purpose of this Agreement is to
set forth certain understandings with respect to the Additional
Termination Event set forth in Section 8(j)(i) of the
Confirmation.
1. Agreement . The parties
agree that, in the event that the Hedging Party determines that an
Additional Termination Event of the type set forth in
Section 8(j)(i) of the Confirmation has occurred, the Hedging
Party shall so notify the parties hereto (a “ Termination
Notice ”, which notice shall include the number of
affected Warrants), and the provisions of this Section 1 shall
apply in lieu of Sections 6(a), 6(b), 6(c) and 6(d) of the
Agreement (as defined in the Confirmation). The Calculation Agent
shall determine Loss using the Daily Average Price (as defined
below) on the Valuation Date (as defined below) corresponding to
the date of the Termination Notice (the “ Notice Date
”) as the current Share price input, and Counterparty shall
pay the amount of such Loss on the corresponding Payment Date (as
defined below). Promptly following the determination of such Loss,
the Calculation Agent shall deliver to the parties a notice
substantially in the form of Schedule A hereto.
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Valuation
Date:
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For each Notice
Date, the immediately following Exchange Business Day.
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Daily Average
Price:
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For any
Exchange Business Day, as determined by the Calculation Agent based
on the New York Volume Weighted Average Price per Share for the
regular trading session (including any extensions thereof) of the
Exchange on such Exchange Business Day (without regard to pre-open
or after hours trading outside of such regular trading session), as
published by Bloomberg at 4:15 P.M., New York City time (or 15
minutes following the end of any extension of the regular trading
session), on such Exchange Business Day, on Bloomberg page
“VPHM.Q<Equity>AQR” (or any successor thereto)
(or if such published volume weighted average price is unavailable
or is manifestly incorrect, the market value of one Share on such
Exchange Business Day, as determined by the Calculation Agent using
a volume weighted method).
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Exchange:
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The NASDAQ
Global Select Market
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Consequences of
Disrupted Days:
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Notwithstanding
anything to the contrary in this Agreement or the Equity
Definitions, if any Valuation Date is a Disrupted Day, the
Calculation Agent may, if appropriate in light of market
conditions, regulatory considerations or otherwise, take any or all
of the following actions: (i) postpone the Valuation Date in
accordance with Section 6.6 of the Equity Definitions or (ii)
determine that such Valuation Date is a Disrupted Day only in part,
in which case the Calculation Agent shall (A) determine the Daily
Average Price based on transactions in the Shares on such Valuation
Date effected before the relevant Market Disruption Event occurred
and/or after the relevant Market Disruption Event ended, as
applicable, and (B) designate the immediately following Exchange
Business Day as the Valuation Date (with the provisions of this
paragraph applying successively to each such Exchange Business Day
so designated) and determine the Loss using an appropriately
weighted average of the Daily Average Prices on the original
Valuation Date and such designated Valuation Date or Dates. Section
6.6(a) of the Equity Definitions is hereby amended by replacing the
word “shall” in the fifth line thereof with the word
“may,” and by deleting clause (ii) thereof. Any
Scheduled Trading Day on which the Exchange is scheduled to close
prior to its normal close of trading shall be deemed a Disrupted
Day in full.
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Market
Disruption Event:
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Section 6.3(a)
of the Equity Definitions is hereby amended by deleting the words
“during the one hour period that ends at the relevant
Valuation Time, Latest Exercise Time, Knock-in Valuation Time or
Knock-out Valuation Time, as the case may be,” in clause (ii)
thereof.
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Payment
Date:
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The date one
Settlement Cycle following each Valuation Date.
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3. Representations and
Warranties.
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(a)
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Each party
represents to the other party that:
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(i) It is duly organized and validly
existing under the laws of the jurisdiction of its organization or
incorporation and, if relevant under such laws, in good
standing.
(ii) It has the power to execute
this Agreement and any other documentation relating to this
Agreement to which it is a party, to deliver this Agreement and any
other documentation relating to this Agreement that it is required
by this Agreement to deliver and to perform its obligations under
this Agreement and has taken all necessary action to authorize such
execution, delivery and performance.
(iii) Such execution, delivery and
performance do not violate or conflict with any law applicable to
it, any provision of its constitutional documents, any order or
judgment of any court or other agency of government applicable to
it or any of its assets or any contractual restriction binding on
or affecting it or any of its assets.
(iv) All governmental and other
consents that are required to have been obtained by it with respect
to this Agreement have been obtained and are in full force and
effect and all conditions of any such consents have been complied
with.
(v) Its obligations under this
Agreement constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms (subject to
applicable bankruptcy, reorganization, insolvency, moratorium or
similar laws affecting creditors’ rights generally
and
2
subject, as to enforceability, to
equitable principles of general application (regardless of whether
enforcement is sought in a proceeding in equity or at
law)).
(vi) It is an “eligible
contract participant” as defined in Section 1a(12) of
the U.S. Commodity Exchange Act, as amended.
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(b)
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Counterparty
represents and warrants to and for the benefit of, and agrees with,
Dealer and Goldman Sachs International (“ GS ”)
as follows:
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(i) On the date hereof,
(A) none of Counterparty and its officers and directors is
aware of any material nonpublic information regarding Counterparty
or the Shares and (B) all reports a
