Exhibit 10.2
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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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YMJTD0
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From:
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Credit Suisse International
One Cabot Square
London E14 4QJ
England
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Subject:
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Agreement
with respect to Issuer Warrant Transaction Reference No.
50302803
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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 Credit Suisse
International (“ Dealer ”) represented by Credit
Suisse, New York branch (“ Agent ”) as its
agent, and ViroPharma Incorporated (“ Counterparty
”), pursuant to a letter agreement dated March 20, 2007
entitled Issuer Warrant Transaction (Reference
Number: 50302803) (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(k)(i) of the
Confirmation.
1. Agreement . The parties
agree that, in the event that the Dealer determines that an
Additional Termination Event of the type set forth in
Section 8(k)(i) of the Confirmation has occurred, Dealer 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 Average VWAP Price (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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Averaging
Dates:
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For each Notice
Date, the immediately following Exchange Business Day.
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Average VWAP
Price:
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For each Notice
Date, the arithmetic average of the Daily Average Price on each of
the Averaging Dates corresponding to such Notice Date.
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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
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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 Averaging 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 such Averaging Date in
accordance with Section 6.7 of the Equity Definitions as if
“Modified Postponement” were applicable or (ii)
determine that such Averaging Date is a Disrupted Day only in part,
in which case the Calculation Agent shall (A) determine the Daily
Average Price for such Averaging Date based on transactions in the
Shares on such Averaging 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 that is not already an
Averaging Date as an Averaging 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 Averaging
Dates. Section 6.7(c)(iii)(A) of the Equity Definitions is hereby
amended by replacing the word “shall” in the sixth line
thereof with the word “may,” and by deleting clause (2)
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 the final Averaging 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.
2
(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)
