EXHIBIT 10.27
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made as of this 31st day of
July, 1997 by and between ViroPharma Incorporated (the "Company") and Xxxxx
Xxxxxxx, Xx. (the "Consultant").
W I T N E S E T H:
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WHEREAS, the Company desires to engage Consultant to provide services to
the Company in accordance with the terms and conditions set forth herein; and
WHEREAS, Consultant desires to provide services to the Company upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of these premises and the mutual promises
made herein and the mutual benefits to be derived herefrom, Consultant and the
Company, intending to be legally bound, hereby agree as follows:
1. Engagement. Upon the terms and subject to the conditions set forth in this
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Agreement, the Company hereby agrees to engage Consultant, as an independent
contractor, to make himself reasonably available to provide the Company with
advice and consultation in the areas of financing, business development and
strategic planning (the "Services") to and on behalf of the Company and
Consultant hereby agrees to render such Services to and on behalf of the
Company; provided that in no event shall Consultant be obligated to devote more
than ten (10) hours in any calendar quarter to the Services.
2. Compensation. In full consideration of the provision of the Services and
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the obligations undertaken pursuant to this Agreement, the Company agrees to pay
Consultant $1,250 each calendar quarter and to grant Consultant options to
purchase 13,334 shares of the Company's Common Stock, par value $.002 per share,
such options to have an exercise price of $15.125 per share and to vest in equal
increments over a two year period, all as more fully set forth in the Non-
Qualified Stock Option Agreement attached hereto as Exhibit A.
3. TERM. This Agreement shall commence on the date hereof and shall continue
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for a three (3) year period, unless sooner terminated by the Company upon thirty
(30) days advance written notice to Consultant.
4. CONFIDENTIAL INFORMATION.
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(a) Without the prior written consent of the Company, Consultant shall not
disclose or use any Confidential Information (as defined below) of the Company
for Consultant's direct or indirect benefit or the direct or indirect benefit of
any third party, and Consultant shall maintain, both during and after
Consultant's engagement, the confidentiality of all Confidential Information of
the Company. In general, "Confidential Information" all information and other
materials of the Company that have not been made available by the Company to the
general public, except as specifically excluded in Section 4(b) below. Failure
to xxxx any of the Confidential Information as confidential or proprietary shall
not affect its status as Confidential Information under the terms of this
Agreement.
(b) The restrictions set forth in this Section 4 shall not apply to
Confidential Information that: (i) at the time of disclosure by the Company to
Consultant is in, or after disclosure by the Company to Consultant becomes part
of, the public domain, through no improper act on the part of Consultant; (ii)
was in Consultant's possession at the time of disclosure by the Company; (iii)
is independently developed by Consultant; or (iv) Consultant receives from a
third party.
5. REPRESENTATIONS. Consultant hereby represents that Consultant is not
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subject to any other agreement that Consultant will violate by signing this
Agreement.
6. RELATIONSHIP BETWEEN PARTIES. Consultant will be retained by the Company
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strictly for the purposes and to the extent set forth in this Agreement and his
relationship to the Company shall be that of an independent contractor.
Consultant shall not be considered under the provisions of this Agreement or
otherwise as an employee of the Company. Consultant shall be responsible for
the timely payment of his or her own self-employment and income taxes and the
Company shall not deduct or withhold from any monies payable to Consultant
hereunder any amount on account of any tax or employee benefit. Nothing
contained in this Agreement shall create or imply the creation of a partnership
between the Company and Consultant and neither party shall have any authority
(actual or apparent) to bind the other.
7. GOVERNING LAW. This Agreement shall be construed and enforced in
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accordance with the laws of the Commonwealth of Pennsylvania, without regard to
the conflict of law principles of Pennsylvania or any other jurisdiction.
8. MISCELLANEOUS. This Agreement and the Exhibit attached hereto (which is
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incorporated herein by reference) contains the entire agreement and
understanding of the parties relating to the subject matter hereof and merges
and supersedes all prior discussions, agreements and understandings of every
nature between them. This Agreement may not be changed or modified, except by
an agreement in writing signed by both of the parties hereto. This Agreement
may be executed in any number of counterparts, and each such counterpart shall
be deemed to be an original instrument, but all such counterparts together shall
constitute but one agreement.
IN WITNESS WHEREOF, the parties have caused this Consulting Agreement
to be executed the day and year first above written.
VIROPHARMA INCORPORATED
By:
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Its:
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CONSULTANT
/s/ Xxxxx Xxxxxxx, Xx.
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Xxxxx Xxxxxxx, Xx.
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