Exhibit 10.29
VIROPHARMA INCORPORATED
STOCK OPTION PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
ViroPharma Incorporated (the "Company") hereby grants to Xxxxxx Xxxx
(the "Optionee") an option to purchase a total of 20,000 shares of Common Stock
of the Company, at the price and on the terms set forth herein, and in all
respects subject to the terms, definitions and provisions of the ViroPharma
Incorporated Stock Option Plan (the "Plan") applicable to non-qualified stock
options, which terms and provisions are hereby incorporated by reference herein.
Unless the context herein otherwise requires, the terms defined in the Plan
shall have the same meanings when used herein.
1. NATURE OF THE OPTION. This Option is intended to be a
nonstatutory stock option and is not intended to be an Incentive Stock Option
within the meaning of section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), or to otherwise qualify for any special tax benefits to
the Optionee.
2. DATE OF GRANT; TERM OF OPTION. This Option is granted this 4th
day of August, 1998, and it may not be exercised later than August 3, 2008,
subject to earlier termination, as provided in the Plan.
3. OPTION EXERCISE PRICE. The Option exercise price is $19.50 per
Share.
4. EXERCISE OF OPTION. This Option shall be exercisable during its
term only in accordance with the terms and provisions of the Plan and this
Option Agreement as follows:
(A) RIGHT TO EXERCISE. This Option shall vest and be exercisable
as follows:
VESTING DATE NUMBER SHARES VESTING
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August 3, 1999 6,666 Shares
August 3, 2000 6,667 Shares
August 3, 2001 6,667 Shares
(B) METHOD OF EXERCISE. This Option shall be exercisable during
its term by written notice which shall state the election to exercise this
Option, the number of full Shares in respect to which this Option is being
exercised and which shall contain or be accompanied by such other
representations and agreements as to the Optionee's investment intent with
respect to such Shares as may be reasonably required by the Company as
contemplated by the Plan. Such written notice shall be signed by the Optionee
and shall be delivered in person or by certified mail to the Secretary of the
Company or such other person as may be designated by the Company. The written
notice shall be accompanied by payment of the purchase price. Payment of the
purchase price shall be by check or
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such other consideration and other method of payment as may be authorized by the
Board or the Committee pursuant to the Plan. The certificate or certificates for
the Shares as to which the Option shall be exercised shall be registered in the
name of the Optionee and, if required by applicable law, shall be legended as
required under the Plan.
(C) RESTRICTIONS ON EXERCISE. This Option may not be exercised if
the issuance of the Shares upon such exercise or the method of payment of
consideration for such Shares would constitute a violation of any applicable
federal or state securities laws or other laws or regulations.
5. INVESTMENT REPRESENTATIONS. Unless the Shares have been
registered under the Securities Act of 1933, in connection with the acquisition
of this Option, the Optionee represents and warrants as follows:
(A) The Optionee is acquiring this Option, and upon exercise of
this Option, he will be acquiring the Shares for investment for his own account,
not as a nominee or agent, and not with a view to, or for resale in connection
with, any distribution thereof.
(B) The Optionee has a preexisting business or personal
relationship with the Company or one of its directors, officers or controlling
persons and by reason of his business or financial experience, has, and could be
reasonably assumed to have, the capacity to protect his interests in connection
with the acquisition of this Option and the Shares.
6. TERMINATION OF STATUS AS AN ELIGIBLE PERSON. Subject to the
provisions of Section 7 hereof: (a) if the Optionee is other than a consultant
or advisor to the Company and ceases to serve the Company or its Subsidiaries
for any reason other than death or Disability and thereby terminates his status
as an Eligible Person, the Optionee (or in the event the Optionee dies
following termination of employment, then the Optionee's executor or
administrator) shall have the right to exercise this Option at any time within
the three (3) month period after the date of such termination to the extent that
the Optionee was entitled to exercise the Option at the date of such
termination; and (b) if the Optionee is as a consultant or advisor to the
Company, such termination shall not accelerate the expiration date of the
Option; provided, however, that if the Optionee dies following such termination,
then the Option must be exercised within the 12-month period following the date
of death.
If the Optionee ceases to serve the Company due to death or
Disability, this Option may be exercised at any time within the 12-month period
after the date of death or termination of service due to Disability, in the case
of death, by the Optionee's estate or by a person who acquired the right to
exercise this Option by bequest or inheritance, or, in the case of Disability,
by the Optionee or his legal guardian or representative, but in any case only to
the extent the Optionee was entitled to exercise this Option at the date of such
termination.
To the extent that the Optionee was not entitled to exercise the
Option at the date of termination, or to the extent the Option is not exercised
within the time specified herein, this Option shall terminate. Notwithstanding
the foregoing, this Option shall not be exercisable after the expiration of the
term set forth in Section 2 hereof.
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7. FORFEITURE OF OPTION.
(A) Termination for Cause. Notwithstanding any other provision of
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this Option, if the Optionee's employment or service is terminated by the
Company and the Board or the Committee makes a determination that the Optionee
(i) has engaged in any type of disloyalty to the Company, including without
limitation, fraud, embezzlement, theft, or dishonesty in the course of his
employment, or has breached any fiduciary duty owed to the Company, or (ii) has
been convicted of a felony or (iii) has disclosed trade secrets or confidential
information of the Company or (iv) has breached any agreement with the Company
in respect of confidentiality, non-disclosure, non-competition or otherwise, all
unexercised Options shall terminate on the earlier of the date of termination
for "cause" or the date of such determination. In the event of such a
determination, in addition to immediate termination of all unexercised Options,
the Optionee shall forfeit all Option shares for which the Company has not yet
delivered share certificates to the Optionee and the Company shall refund to the
Optionee the Option price paid to it, if any, in the same form as it was paid
(or in cash at the Company's discretion). Notwithstanding anything herein to
the contrary, the Company may withhold delivery of share certificates pending
the resolution of any inquiry that could lead to a determination resulting in
forfeiture.
(B) Non-Competition. Notwithstanding any other provision of this
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Option, if, during the 3-month period following a termination of service, which
period shall be extended to 12 months in the event of a termination due to
Disability, (i) an Optionee who is other than a consultant or advisor to the
Company commences any employment or engagement with or by a competitor of the
Company (including, but not limited to, full or part-time employment or
independent consulting work), as determined in the sole discretion of the Board
or the Committee, provided that the employment of Optionee by SmithKline Xxxxxxx
plc shall not be deemed to be employment of Optionee with or by a competitor of
the Company for purposes of this Agreement, or (ii) an Optionee who is a
consultant or advisor, has entered into an agreement with the Company which
contains non-competition covenants and violates the terms of his or her non-
competition covenant, as determined in the sole discretion of the Board or the
Committee, then in either case all of such Optionee's unexercised Options shall
terminate immediately upon the commencement of such competitive activity.
8. NON-TRANSFERABILITY OF OPTION. This Option may not be sold,
pledged, assigned, hypothecated, gifted, transferred or disposed of in any
manner either voluntarily or involuntarily by operation of law, other than by
will or by the laws of descent or distribution, and may be exercised during the
lifetime of the Optionee only by such Optionee (or by such Optionee's
representative pursuant to Section 6). Subject to the foregoing and the terms of
the Plan, the terms of this Option shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
9. CONTINUATION OF EMPLOYMENT OR ENGAGEMENT. Neither the Plan nor
this Option shall confer upon any Optionee any right to continue in the service
of the Company or any of its Subsidiaries or limit, in any respect, the right of
the Company to discharge the Optionee at any time, with or without cause and
with or without notice.
10. WITHHOLDING. The Company reserves the right to withhold, in
accordance with any applicable laws, from any consideration payable to Optionee
any taxes required to be withheld by federal, state or local law as a result of
the grant or exercise of this Option or the sale or other
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disposition of the Shares issued upon exercise of this Option. If the amount of
any consideration payable to the Optionee is insufficient to pay such taxes or
if no consideration is payable to the Optionee, upon the request of the Company,
the Optionee (or such other person entitled to exercise the Option pursuant to
Section 6 hereof) shall pay to the Company an amount sufficient for the Company
to satisfy any federal, state or local tax withholding requirements it may
incur, as a result of the grant or exercise of this Option or the sale or other
disposition of the Shares issued upon the exercise of this Option.
11. THE PLAN. This Option is subject to, and the Company and the
Optionee agree to be bound by, all of the terms and conditions of the Plan as
such Plan may be amended from time to time in accordance with the terms thereof.
Pursuant to the Plan, the Board or the Committee is authorized to adopt rules
and regulations not inconsistent with the Plan as it shall deem appropriate and
proper. A copy of the Plan in its present form is available for inspection
during business hours by the Optionee or the persons entitled to exercise this
Option at the Company's principal office.
12. ENTIRE AGREEMENT. This Agreement, together with the Plan and the
other exhibits attached thereto or hereto, represents the entire agreement
between the parties.
13. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the Commonwealth of Pennsylvania.
14. AMENDMENT. Subject to the provisions of the Plan, this Agreement
may only be amended by a writing signed by each of the parties hereto.
IN WITNESS WHEREOF, the Company has caused its duly authorized
officers to execute and attest this instrument as of this 4th day of August,
1998.
VIROPHARMA INCORPORATED
By:________________________
Xxxxxx X. Xxxx
President and Chief Executive Officer
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ACKNOWLEDGMENT
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The Optionee acknowledges receipt of a copy of the Plan, a copy of
which is attached hereto, and represents that he or she has read and is familiar
with the terms and provisions thereof and hereby accepts this Option subject to
all of the terms and provisions of the Option Agreement and the ViroPharma
Incorporated Stock Option Plan (the "Plan"). The Optionee hereby agrees to
accept as binding, conclusive and final all decisions or interpretations of the
Board or the Committee upon any questions arising under the Plan.
Date: ____________________ _________________________
Signature of Optionee
_________________________
Name of Optionee
_________________________
Address
_________________________
City, State, Zip Code
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