Exhibit 10.2
SALES FORCE TRANSFER AGREEMENT
THIS SALES FORCE TRANSFER AGREEMENT (this "Transfer Agreement")
is made on this 1/st/ day of August, 2002 by and among VIROPHARMA INCORPORATED,
a Delaware corporation ("ViroPharma"), VCO INCORPORATED, a Delaware corporation
and wholly-owned subsidiary of ViroPharma ("VCO"), and AVENTIS PHARMACEUTICALS,
INC., a Delaware corporation ("Aventis"). For convenience, each of ViroPharma,
VCO and Aventis may be referred to in this Transfer Agreement as a "Party" and
collectively as "Parties."
Background
ViroPharma and Aventis are parties to that certain Copromotion
and Codevelopment Agreement, effective as of September 9, 2001, as amended (the
"Copromotion Agreement"). ViroPharma and Aventis are also parties to that
certain Stock Purchase Agreement, dated as of September 9, 2001 (the "Stock
Purchase Agreement"). Pursuant to that certain Sublicense and Subcontract
Agreement between ViroPharma and VCO, dated December 31, 2001 (the "VCO
Subcontract Agreement"), ViroPharma subcontracted and sublicensed to VCO certain
of ViroPharma's obligations and rights under the Copromotion Agreement.
IN CONSIDERATION of developments that have occurred since the
Effective Date of the Copromotion Agreement and of the mutual covenants and
releases contained in this Transfer Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties, intending to be legally bound, hereby agree as follows:
1. Certain Capitalized Terms. Capitalized terms used in this
Transfer Agreement shall have the respective meanings ascribed to such terms in
the Copromotion Agreement and in this Transfer Agreement.
2. Transfer of ViroPharma Sales Force to Aventis.
(a) Offers of Employment. No later than August 2, 2002,
ViroPharma shall request the consent of each of the ViroPharma and VCO employees
identified on Schedule 2(a)((alpha)) attached to this Transfer Agreement
(collectively, the "Employees") to provide a true and complete copy of the
Personnel File (as defined below) of such Employee to Aventis, which consent
shall be due to ViroPharma by August 7, 2002. No later than August 9, 2002,
provided ViroPharma has received such consent of an Employee, ViroPharma shall
provide Aventis with a copy of such Employee's Personnel File. No later than
five (5) business days after receiving Personnel Files from ViroPharma, Aventis
will offer employment without an advance hiring interview to each Employee.
(i) For whom Aventis has received a true and complete
copy of such Employee's Personnel File, and
(ii) Whose Personnel File or other documents provided
to Aventis pursuant to this Section 2 do not document disciplinary action taken
by ViroPharma or VCO against such Employee for gross misconduct, dishonesty,
fraud, deceit, or unlawful discrimination by such Employee, and
(iii) Who has received a Bachelor's Degree or
equivalent,
such employment to become effective as of September 1, 2002 (the "Effective
Hiring Date"), provided however, that the date that Aventis shall offer
employment to an Excepted Employee as defined below shall be five (5) business
days after such Excepted Employee returns to work with ViroPharma from a leave
of absence as Aventis is notified by ViroPharma, and the effective date of such
Excepted Employee's hiring by Aventis shall be on the first Monday no more than
three (3) weeks after the date on which such Excepted Employee accepts Aventis'
offer of employment. "Excepted Employee" shall mean any Employee who is on
short-term disability leave or any other leave of absence on the Effective
Hiring Date. Aventis' employment offer letter shall reference Aventis' standard
pre-employment conditions, as listed in Schedule 2(a)((beta)), which any
employment candidate must satisfy as a condition of employment with Aventis.
Notwithstanding anything to the contrary in this Section 2, Aventis shall make
such employment offers in compliance with all applicable laws, rules and
regulations. Additionally, Aventis shall use commercially reasonable efforts to
ensure that no more than five percent (5%) of Employees shall receive offers of
employment that would require them to relocate if they were to accept such
offer.
As used in this Section 2, the term "Personnel File" shall mean an employee's
personnel file, and if applicable, a manager's working file, excluding, in each
case, any medical or health information regarding such employee, but including
an electronic file containing the information set forth in Schedule 2(a)(x).
(b) Transferred VCO Employees. Each Employee who accepts
employment with Aventis pursuant to the employment offer letter shall be
referred to in this Transfer Agreement as a "Transferred VCO Employee." Aventis
shall hire each Transferred VCO Employee with the same level of responsibility
and base salary as such Transferred VCO Employee had at ViroPharma or VCO on the
date of this Transfer Agreement. Aventis shall not take any action so as to
require any compliance under the Worker Adjustment and Retraining Notification
Act or similar state or local laws until the date immediately succeeding the
Effective Hiring Date. With respect to each Transferred VCO Employee, Aventis
will recognize the service of any Transferred VCO Employee with ViroPharma and
VCO, as applicable, prior to the Effective Hiring Date, for purposes of
eligibility for, participation in and early commencement of (i) benefits, and
(ii) vesting of retirement plans, including, without limitation, eligibility for
an amount of severance, provided that the crediting of service does not result
in the duplication of benefits.
(c) Aventis Obligations Regarding Employees and Transferred
VCO Employees. Aventis shall not assume any responsibility for any commitment,
obligation, duty or liability of ViroPharma or VCO to any Transferred VCO
Employee and to any Employee who is not a Transferred VCO Employee that arises
as a result of such Transferred VCO Employee's or Employees' employment with
ViroPharma or VCO, as applicable, or the cessation of such employment including,
without limitation, accrued, but unused vacation, sick leave or other paid time
off, accrued but unpaid taxes, all other accrued but unpaid amounts payable
pursuant to
-2-
Employee's employment by ViroPharma until the Effective Hiring Date, severance
obligations, or breach by ViroPharma of applicable laws or regulations if any
(collectively, the "Retained Employee Obligations"). Neither VCO nor ViroPharma
shall assume any responsibility for any commitment, duty or liability of Aventis
that arises as a result of Aventis' making of offers of employment or refraining
from making offers of employment (unless, in the latter case, pursuant to
Section 2(a) of this Transfer Agreement) to the Employees or any Transferred VCO
Employee's employment with Aventis (collectively, the "Aventis Transferred VCO
Employee Obligations") except as provided in Section 5 (a) below.
(d) ViroPharma and VCO Obligations Regarding Employees and
Transferred VCO Employees. ViroPharma and VCO, as applicable, shall, until the
Effective Hiring Date:
(i) Maintain personnel in the positions currently held
by Xxxx Xxxxx, Xxxxxx Xxxxxxxxxx, Xxxxx Xxxx, Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxx,
and Xxxxxxxx XxXxxx responsible for the management of the sales force and the
sales force support services, including Sample management;
(ii) Communicate no information to the Employees
concerning the potential transfer of the Employees to Aventis that has not been
previously approved by Aventis;
(iii) Plan with Aventis communications to be made by
ViroPharma or VCO to its sales force and sales management and by Aventis to its
sales force concerning the potential transfer of the Employees to Aventis;
(iv) Hold regular meetings to communicate with the
Employees regarding the potential transfer of the Employees to Aventis;
(v) Transmit to the Employees documents received from
Aventis regarding the potential transfer of the Employees to Aventis;
(vi) provide to Aventis, together with the Personnel
File of each Employee that has agreed to the transfer of a copy of its Personnel
File to Aventis, a verification of the hiring date by ViroPharma or VCO of such
Employee; and
(vii) use commercially reasonable efforts to assist
Aventis in good faith in Aventis' efforts to employ the Employees as described
herein.
3. Consideration. In consideration for ViroPharma's and VCO's
consent to and assistance in Aventis' offering employment to the Employees
pursuant to Xxxxxxx 0, Xxxxxxx shall pay VCO fifteen million, four hundred ten
thousand U.S. dollars ($15,410,000) due immediately on the date of this Transfer
Agreement.
4. Representations and Warranties.
(a) By ViroPharma and VCO. ViroPharma and VCO, as
applicable, hereby represent and warrant to Aventis as follows:
-3-
(i) Existence; Good Standing. Each of ViroPharma and
VCO is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and has full corporate power and authority and
legal right to execute, deliver and perform this Transfer Agreement.
(ii) Due Authorization; Noncontravention. Each of
ViroPharma's and VCO's execution, delivery and performance of this Transfer
Agreement has been duly authorized by all corporate action required to be taken
on the part of ViroPharma and VCO, as applicable, and will not violate, conflict
with or result in a default (with or without notice or lapse of time or both)
under (A) ViroPharma's or VCO's charter or bylaws, as applicable, (B) any law,
rule or regulation applicable to ViroPharma or VCO or any of their respective
properties, as applicable, (C) any provision of any order, injunction, judgment
or decree of any court or governmental instrumentality entered against or
binding upon ViroPharma or VCO or any of their respective properties, as
applicable, or (D) any material mortgage, indenture, contract or agreement or
instrument to which ViroPharma or VCO, as applicable, is a party or by which
ViroPharma or VCO or any of their respective properties, as applicable, is
legally bound.
(iii) Enforceability. This Transfer Agreement is a
legal, valid and binding obligation of ViroPharma and VCO, as applicable,
enforceable against ViroPharma and VCO, as applicable, in accordance with its
terms.
(iv) Complete Personnel Files. The Personnel File to be
provided to Aventis by ViroPharma for each Employee who has consented to the
supply of a copy of such file to Aventis will be a true and complete copy of
such Personnel File, and ViroPharma will provide Aventis with all documentation
concerning any disciplinary action taken by ViroPharma or VCO against such
Employee for gross misconduct, dishonesty, fraud, deceit, or unlawful
discrimination by such Employee.
(v) Employment Claims. ViroPharma will notify Aventis
in writing of any ongoing harassment or discrimination claims against ViroPharma
brought by any Employee or brought against an Employee by ViroPharma, or by
another Employee, but in such latter case, only to the extent actually known to
the members of the management team of ViroPharma, as listed in ViroPharma's 10K
for the year ended December 31, 2001, who are employed by ViroPharma on the date
of this Transfer Agreement, or of VCO.
(vi) Neither of the members of the management team of
ViroPharma, as listed in ViroPharma's 10K for the year ended December 31, 2001,
who are employed by ViroPharma on the date of this Transfer Agreement, nor any
duly elected of VCO have any actual knowledge of any reason why an Employee's
employment at ViroPharma should be discontinued absent this Transfer Agreement,
or why Aventis should not offer an Employee employment with Aventis.
(vii) All Employees, within the last twelve (12)
calendar months took and passed a drug screen and were determined to, have an
acceptable driving record as documented by DMV (Department of Motor Vehicle)
records.
-4-
(viii) None of the Employees has, to the best of
ViroPharma's or VCO's knowledge, had Debarment or Exclusion Proceedings
instituted against them at any time.
(b) By Aventis. Aventis hereby represents and warrants to
Aventis as follows:
(i) Existence and Good Standing. Aventis is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has full corporate power and authority and legal
right to execute, deliver and perform this Transfer Agreement.
(ii) Due Authorization; Noncontravention. Aventis'
execution, delivery and performance of this Transfer Agreement has been duly
authorized by all corporate action required to be taken on the part of Aventis
and will not violate, conflict with or result in a default (with or without
notice or lapse of time or both) under (A) Aventis' charter or bylaws, (B) any
law, rule or regulation applicable to Aventis or any of its properties, (C) any
provision of any order, injunction, judgment or decree of any court or
governmental instrumentality entered against or binding upon Aventis or any of
its properties, or (D) any material mortgage, indenture, contract or agreement
or instrument to which Aventis is a party or by which Aventis or any of its
properties is legally bound.
(iii) Enforceability. This Transfer Agreement is a
legal, valid and binding obligation of Aventis, enforceable against Aventis in
accordance with its terms.
(c) Survival of Representations and Warranties. The
respective rights of the Parties to assert any claim for indemnification under
Section 5(b) and Section 5(c) of this Transfer Agreement for breach of any of
the representations and warranties of the other Party contained in this Section
4 shall survive the execution and delivery of this Transfer Agreement for a
period beginning on the date of this Transfer Agreement and ending on the
thirtieth (30th) day after the expiration of the statute of limitations
applicable to the subject matter addressed under the relevant representation and
warranty (the "Survival Period"), and thereafter shall terminate and expire,
except with respect to liabilities for any item as to which, on or before the
close of business on the last day of the Survival Period, a Party shall have
asserted a claim in writing against the other Party, in which case, the
liability for such claim shall continue until it shall have been finally settled
or adjudicated.
5. Indemnification.
(a) Indemnification for Certain Severance Payments by
ViroPharma and/or VCO. ViroPharma and/or VCO, as applicable, shall indemnify
Aventis for any severance paid pursuant to Aventis' Transition Assistance Plan
attached hereto as Schedule 5(a) for up to five (5) Area Business Managers
listed on Schedule 2(a)((alpha)) and employed by Aventis as a result of this
Transfer Agreement, if Aventis terminates the employment of such Area Business
Manager by March 31, 2003, due to performance problems. ViroPharma and/or VCO
shall pay severance to Xxxxx Xxxxxxxx, according to ViroPharma's severance
policies if Xxxxx Xxxxxxxx, declines to accept Aventis' offer of employment in
Cleveland, OH.
-5-
(b) Indemnification by ViroPharma and VCO. ViroPharma and/or
VCO, as applicable, shall indemnify and hold harmless Aventis and any of
Aventis' Affiliates and each of their respective shareholders, directors,
officers, agents and employees (collectively, "Aventis Indemnified Persons")
from and against any and all losses, costs, claims, liabilities, demands, fines,
judgments, penalties, damages and expenses, including reasonable attorneys' fees
and expenses (collectively, the "Losses") that the Aventis Indemnified Person
may be required to pay one or more persons or entities other than any Aventis
Affiliate arising out of or resulting from: (i) any breach of any of the
representations or warranties made by ViroPharma and VCO, respectively, in
Section 4(a) of this Transfer Agreement; (ii) any breach by ViroPharma or VCO,
respectively, of any of the covenants or agreements made by ViroPharma and VCO
in this Transfer Agreement; and (iii) any of the Retained Employee Obligations.
(c) Indemnification by Aventis. Aventis shall indemnify and hold
harmless ViroPharma and VCO and any of ViroPharma's and VCO's respective
Affiliates and each of their respective shareholders, directors, officers,
agents and employees (collectively, "ViroPharma Indemnified Persons") from and
against any and all Losses that the ViroPharma Indemnified Person may be
required to pay one or more persons or entities other than any ViroPharma
Affiliate arising out of or resulting from: (i) any breach of any of the
representations or warranties made by Aventis, respectively, in Section 4(b) of
this Transfer Agreement; and (ii) any breach by Aventis of any of the covenants
or agreements made by Aventis in this Transfer Agreement; (iii) any of the
Aventis Transferred VCO Employee Obligations.
(d) Procedures.
(i) After receipt by any Aventis Indemnified Party or any
ViroPharma Indemnified Party, as applicable (the "Indemnified Party") of any
claim in respect of which such Indemnified Party will seek indemnification from
the Party required to provide such indemnification under this Section 5 (the
"Indemnifiying Party"), the Indemnified Party must, as a condition to the
Indemnified Party's right to indemnification under this Section 5, provide
prompt written notice thereof to the Indemnifying Party (the "Claim Notice");
provided that any delay in providing such Claim Notice shall not relieve the
Indemnifiying Party from any liability that it may have to the Indemnified Party
under this Section 5 except to the extent that the Indemnified Party is
materially prejudiced by such delay. The Claim Notice shall (A) specify in
reasonable detail and in good faith the nature of the claim, (B) specify the
amount or in good faith the estimate of the Losses being asserted and (C) state
the basis under this Transfer Agreement for seeking such indemnification. In no
event (whether or not the Indemnified Party is controlling the defense,
compromise or settlement of such claim) will the Indemnified Party admit any
responsibility or liability with respect to any such claim and the Indemnifying
Party shall have no liability to the Indemnified Party with respect to such
claim if the Indemnified Party makes any such admission.
(ii) Subject to Section 5(d)(iii) and Section 5(d)(iv) of
this Transfer Agreement, the Indemnifying Party may undertake the defense,
compromise and settlement of such claim by representatives of its own choosing
reasonably acceptable to the Indemnified Party. The assumption of the defense,
compromise and settlement of any such claim by the Indemnifying Party shall not
be an acknowledgment of the obligation of the Indemnifying Party to indemnify
such Indemnified Party with respect to such claim. If the Indemnified Party
-6-
desires to participate in, but not control, any such defense, compromise and
settlement, it may do so at its sole cost and expense. The Indemnified Party
shall have the right to undertake the defense, and, subject to Section 5(d)(iii)
and Section 5(d)(iv) of this Transfer Agreement, compromise and settlement of
such claim with counsel of its own choosing, and the costs and expenses of the
Indemnified Party in connection therewith shall be included as a part of the
indemnification obligations of the Indemnifying Party under this Section 5,
unless the Indemnifying Party, within thirty (30) days (or in the case of
litigation, fifteen (15) days) after written notice of such claim has been given
to the Indemnifying Party by the Indemnified Party, both: (i)expressly
acknowledges in writing to the Indemnified Party that that, as between the
Indemnified Party and the Indemnifying Party, the Indemnifying Party shall be
solely obligated to satisfy or discharge the obligations set forth in the Claim
Notice, and (ii) takes all reasonable and appropriate steps to affirmatively
undertake the defense of such claim.
(iii) Notwithstanding the provisions of Section 5(d)(ii)
of this Transfer Agreement to the extent that (A) any claim or the litigation or
resolution thereof (x) seeks an equitable remedy, or (y) is asserted against
both the Indemnifying Party and the Indemnified Party and the Indemnified Party
reasonably concludes that there are defenses available to Indemnified Party
which are different or additional to those of the Indemnifying Party, or (B)
upon petition by the Indemnified Party, an appropriate court rules that the
Indemnifiying Party failed or is failing to defend such claim diligently, then
the Indemnified Party shall have the right to control the defense, and subject
to Section 5(d)(iv) of this Transfer Agreement, the compromise and settlement of
such claim and the costs and expenses of the Indemnifying Party in connection
therewith shall be included as part of the indemnification obligations of the
Indemnifying Party under this Section 5. If the Indemnified Party elects to
exercise such right, then the Indemnifying Party shall have the right to
participate in, but not control, the defense, compromise and settlement of such
claim at the Indemnifying Party's sole cost and expense.
(iv) Neither the Indemnified Party nor the Indemnifying
Party shall settle or compromise any such claim, regardless of whether it is
controlling the defense, settlement or compromise thereof without the prior
written consent of the other (which consent shall not be unreasonably withheld,
delayed or conditioned).
(v) At the expense of the Indemnifying Party, the
Indemnifying Party and the Indemnified Party shall cooperate with and render to
each other such assistance as may reasonably be requested in order to insure the
proper and adequate defense of any such claim or proceeding which assistance
shall include making appropriate personnel reasonably available for any
investigation, discovery, hearing or trial.
6. Miscellaneous.
(a) Expenses. Each of the Parties shall each pay their own
respective fees, expenses and disbursements, including the fees and expenses of
their respective counsel, accountants and other experts, in connection with the
subject matter of this Transfer Agreement and all other costs and expenses
incurred in performing and complying with all obligations to be performed under
this Transfer Agreement.
-7-
(b) Specific Performance. Without limiting the rights and
remedies available to the respective Parties, whether under this Transfer
Agreement, at law, in equity or otherwise, all of which shall be cumulative,
each Party acknowledges that damages at law will be an insufficient remedy in
view of the irrevocable harm which will be suffered if such Party violates such
Party's covenants and obligations under this Transfer Agreement, and such Party
agrees that the other Parties may apply in any court of competent jurisdiction
for, and shall be entitled as a matter of right to, injunctive relief
specifically to enforce any of such obligations upon the breach or threatened
breach of any such provision.
(c) Publicity.
(i) The Parties will consult with each other and provide
the other with the opportunity to review the portions of any completed proposed
press release or other written public statement, other than the press release
agreed to among the Parties and issued on August 1, 2002, concerning any terms
or conditions of this Transfer Agreement or the transactions contemplated
hereunder before issuing such press release or making such public statement
unless such consultation is not timely feasible in light of the requirements of
applicable law or any applicable stock exchange or NASDAQ regulations, and no
Party shall issue any such press release or make any such public statement
regarding any of the terms of conditions of this Transfer Agreement or the
transactions contemplated by this Transfer Agreement without the consent of the
other Party, except as may be required by applicable law or any applicable stock
exchange or NASDAQ regulations.
(ii) Aventis acknowledges that ViroPharma will file this
Transfer Agreement with the Securities and Exchange Commission (the "SEC") and
agrees that such filing shall not be a breach of this Transfer Agreement.
(d) Voluntary Act; No Reliance. Each of the Parties is entering
into this Transfer Agreement voluntarily, without duress or undue influence.
Each of the Parties acknowledges that (i) such Party has been represented in the
negotiations for, and in the preparation of this Transfer Agreement by counsel
or other professionals of their own respective choice, (ii) such Party has read
this Transfer Agreement and has had this Transfer Agreement fully explained to
it by such counsel or professionals, (iii) that such Party is fully aware of the
contents of this Transfer Agreement and of this Transfer Agreement's legal
effect; and (iv) such Party is not relying upon and has not relied upon any
representations, warranties and statements made by any of the other Parties in
connection with such Party's execution, delivery and performance of this
Transfer Agreement other than the representations, warranties and statements
expressly made by such other Party in Section 4(a) and Section 4(b) of this
Transfer Agreement.
(e) Amendment, Severability, Parties in Interest. This Transfer
Agreement may be amended, modified or supplemented only by a written instrument
duly executed by each of the Parties. If any provision of this Transfer
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or
-8-
unenforceability shall not affect any other provision hereof, and this Transfer
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. This Transfer Agreement shall be
binding upon and inure to the benefit of and be enforceable by the successors
and assigns of the Parties.
(f) Waivers. Any term or provision of this Transfer Agreement
may be waived at any time by the Party entitled to the benefit thereof by a
written instrument expressly stated to be a waiver and duly executed by such
Party. The failure of any Party at any time or times to require performance of
any provision of this Transfer Agreement shall in no manner affect the right of
such Party at a later time to enforce the same or any other provision of this
Transfer Agreement. The waiver of any condition or of the breach of any
provision of this Transfer Agreement in one or more instances shall not operate
or be construed as a waiver of any other condition or subsequent breach.
(g) Notices. All notices that are required or permitted under
this Settlement Agreement shall be in writing and shall be deemed sufficiently
given if: (i) sent by registered or certified mail, return receipt requested,
proper postage prepaid, (ii) by reputable overnight delivery service, proper
charges prepaid, or (iii) by facsimile (with a copy sent by any of the methods
of delivery described in clauses (i) or (ii) above within twenty-four (24) hours
after sending by facsimile). Any notices shall be deemed received (A) the third
business day after the date when sent by registered or certified mail, return
receipt requested, (B) the business day after the date when sent by reputable
overnight delivery service, and (C) the day sent when sent by facsimile
(provided, that the Party sending the notice by facsimile sends such notice
pursuant to any of the methods of delivery described in clauses (i) or (ii)
above with twenty-four (24) hours after sending by facsimile), in each case, to
the address set forth below, unless such address is changed by notice given in
accordance with this Section 6(g):
If to ViroPharma or VCO, ViroPharma Incorporated
to: 000 Xxxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Facsimile No.: 000-000-0000
Attention: Vice President and General Counsel
If to Aventis, to: Aventis Pharmaceuticals Inc.
000 Xxxxxxxx Xxxxxxxxx
X.X. Xxx 0000
Xxxxxxxxxxx, XX 00000-0000, X.X.X.
Facsimile: 000-000-0000
Attention: Vice President, Legal Corporate
Development
(h) Entire Agreement. This Transfer Agreement (including the
Schedules to this Transfer Agreement), sets forth the entire agreement and
understanding of the Parties hereto with respect to the matters set forth in
this Transfer Agreement and supersedes all prior agreements or understandings,
oral and written, among the Parties or otherwise with respect to such matters.
-9-
(i) Governing Law. This Transfer Agreement shall be governed by
and construed in accordance with the law of the Commonwealth of Pennsylvania,
without regard to the conflict of law principles of Pennsylvania or any other
jurisdictions.
(j) Counterparts. This Transfer Agreement may be executed in two
or more counterparts, each of which shall be binding as of the date first
written above, and all of which shall constitute one and the same instrument.
Each such copy shall be deemed an original, and it shall not be necessary in
making proof of this Transfer Agreement to produce or account for more than one
such counterpart. This Transfer Agreement shall not be effective unless and
until it has been signed by each of the Parties hereto.
[Signature Page Follows]
-10-
IN WITNESS WHEREOF, the Parties have caused their respective duly
authorized representatives to execute this Transfer Agreement on the date first
written above.
VIROPHARMA INCORPORATED
By: /s/ Xxxxxx xx Xxxxx
----------------------------------------
Xxxxxx xx Xxxxx
President, CEO & Chairman of the Board
VCO INCORPORATED
By: /s/ Xxxxxx xx Xxxxx
----------------------------------------
Xxxxxx xx Xxxxx
President & CEO
AVENTIS PHARMACEUTICALS, INC.
By: /s/ Xxxxx Belle
----------------------------------------
Xxxxx Belle
President and Chief Executive Officer
-11-
Exhibit 10.2
Schedule 2(a)((alpha))
Employees
Status Last Name First Name Position
------ --------- ---------- --------
PROFESSIONAL SALES REPRESENTATIVES:
-----------------------------------
1Active Xxxxxxxx Xxxxxxx Professional Sales Representative
2Active Xxxxxxxx Xxxxxxx Professional Sales Representative
3Active Xxxxxx Xxxxxxx Professional Sales Representative
4Active Xxxxxxxxx Xxxxxxxx Professional Sales Representative
5Active XxXxxxx Xxxxxx Professional Sales Representative
6Active Xxxxx Xxxxxxxxxx Professional Sales Representative
7Active D'Xxxxxxxx Xxxxxxx Professional Sales Representative
8Active Xxxxxx Xxxxxxxxxxx Professional Sales Representative
9Active Xxxxx Xxxx Professional Sales Representative
10Active XxXxxxx Xxxxx Professional Sales Representative
11Active Khan Sana Professional Sales Representative
12Active Xxxxxxx Xxxxxxxx Professional Sales Representative
13Active XxxXxXxxxx Xxxxxxxxx Professional Sales Representative
14Active Xxxxxx Xxxxxxxxxxx Professional Sales Representative
15Active Xxxxxxx Xxxxx Professional Sales Representative
16Active Xxx Xxxxxxxx Professional Sales Representative
17Active Xxxxxxxxx Xxxxx Professional Sales Representative
18Active Xxxxxx Xxxxxxx Professional Sales Representative
19Active Xxxxx Xxxxx Professional Sales Representative
20Active XxXxxxx Xxxxxxx Professional Sales Representative
21Active Xxxxx Xxxx Professional Sales Representative
22Active Mabilia Xxxxx Professional Sales Representative
23Active Xxxxxx Xxxx Professional Sales Representative
24Active Xxx Xxxx Professional Sales Representative
25Active Xxxxx Xxxxxx Professional Sales Representative
26Active Xxxxx Xxxxx Professional Sales Representative
27Active Chopper Xxxxx Professional Sales Representative
28Active Xxxxxxxx Xxx Professional Sales Representative
29Active Xxxxxxxxxx Xxxxx Professional Sales Representative
30Active Xxxxxxx Xxxx Professional Sales Representative
31Active Xxxx Xxxx Professional Sales Representative
32Active Xxxxxxx Xxxxx Professional Sales Representative
33Active Xxxxxxx Xxxxxxxx Professional Sales Representative
34STD (1) Xxxxxx Xxxxxxx Professional Sales Representative
35Active Xxxxxx Xxxx Professional Sales Representative
36Active Xxxxxx Xxxxxx Professional Sales Representative
37Active Xxxxxxxxxx Xxx Professional Sales Representative
38Active Xxxxx Xxxxx Professional Sales Representative
39Active Xxxxxxx Xxxx Professional Sales Representative
40Active Xxxxxx Xxxxxxx Professional Sales Representative
41Active Xxxxxx Xxxxxxxxxxx Professional Sales Representative
42Active Xxxxxx Xxxxxxx Professional Sales Representative
43Active Xxxxx Xxxxxxx Professional Sales Representative
44Active Xxxxxxx Xxxxxxxx Professional Sales Representative
45Active Xxxxxx Xxxxx Professional Sales Representative
46Active Xxxxxxxx Xxxxxxx Professional Sales Representative
47Active Xxxxx Xxxxx Professional Sales Representative
48Active Xxxxxxxxxxx Xxxxxxx Professional Sales Representative
49Active Xxxxxx-Xxx Zoe Professional Sales Representative
50Active Xxxxxxxx Xxxxxxx Professional Sales Representative
51Active Xxxxxx Xxxx Professional Sales Representative
52Active Xxxxxx Xxxxxxx Professional Sales Representative
53Active Caulk M Professional Sales Representative
54Active Xxxxxx Xxxxxx Professional Sales Representative
55Active Xxxxxx Xxxxxxx Professional Sales Representative
56Active Xxxxxx Xxxxxxx Professional Sales Representative
57Active Xxxxxx Xxxxx Professional Sales Representative
58Active Xxxxx Xxxxx Professional Sales Representative
59Active Xxxxxx Xxxxxxx Professional Sales Representative
60Active Xxxxxxxx Xxxxxxx Professional Sales Representative
61Active Xxx Xxxxx Professional Sales Representative
62Active Xxxxxx Xxxxx Professional Sales Representative
63Active Xxxx Xxxx Professional Sales Representative
64Active Xxxxxx Xxxxxxx Professional Sales Representative
65Active Xxxxxxx Xxxxx Professional Sales Representative
66Active Xxxxxxxxx Xxxx Professional Sales Representative
67Active Xxxxx Xxxxx Professional Sales Representative
68Active XxXxxxxxx Trinity Professional Sales Representative
69Active Xxxx Xxxxxxx Professional Sales Representative
70Active Xxxxx Xxxxxx Professional Sales Representative
71Active Xxxxxxx Xxxxx Professional Sales Representative
72Active Xxxxxxx Xxxxx Professional Sales Representative
73Active Xxxxx Xxx Professional Sales Representative
74Active Xxxxxx Xxxxxxxx Professional Sales Representative
75Active Xxxxxxxxx Xxxxx Professional Sales Representative
76Active Xxxxxxxxx Xxxxx Professional Sales Representative
77Active Xxxxxx Xxxxxxx Professional Sales Representative
78Active Xxxxxxxxxxxx Xxxxxxx Professional Sales Representative
79Active Xxxxx Xxxxxxx Professional Sales Representative
80Active Xxx Xxxx Professional Sales Representative
81Active Xxxxxxx Xxxxx Professional Sales Representative
82Active Xxxxxxx Xxxxx Professional Sales Representative
83Active Xxxxxx Xxxxxxx Professional Sales Representative
84Active Xxxxxxx Xxxxxxx Professional Sales Representative
85Active Xxxxx Xxxxxx Professional Sales Representative
86Active Xxxxxx Xxxxx Professional Sales Representative
87Active Xxxxxx Xxxxx Professional Sales Representative
88Active Xxxxxxxxx Xxxx Professional Sales Representative
89Active Xxxxxx Xxxxxx Professional Sales Representative
90Active Xxxx Xxxxxx Professional Sales Representative
91Active Xxxxx Xxxxxxx Professional Sales Representative
92Active Xxxxxxxx Xxxxx Professional Sales Representative
93Active Xxxxxxx Xxxxxx Professional Sales Representative
94Active Xxxxx Xxxxx Professional Sales Representative
95Active Xxxxxxx Xxxxxxxx Professional Sales Representative
96Active Xxxxxx Xxxx Professional Sales Representative
97Active Xxxxxxxx Xxxxx Professional Sales Representative
98Active Xxxxx Xxxxxx Professional Sales Representative
99Active Xxxxxx Xxxx Professional Sales Representative
100Active Xxxxx Xxxxxxx Professional Sales Representative
101Active Xxxx Xxxxx Professional Sales Representative
102Active Xxxxxx Xxxxxx Professional Sales Representative
103Active Xxxxxxxxxx Xxxxxxxxx Professional Sales Representative
104Active Xxxxx Xxxxxxx Professional Sales Representative
105Active Xxxxxxx Xxxxxx Professional Sales Representative
106Active Xxxxx Xxxxx Professional Sales Representative
107Active Xxxxx Xxxx Professional Sales Representative
108Active Xxxxx Xxxxxxx Professional Sales Representative
109Active Xxxxxxxx Xxxxxxx Professional Sales Representative
110Active Xxxx Xxxxx Professional Sales Representative
111Active Armie Xxxx Professional Sales Representative
112Active Xxxx Xxxxxxxxxxx Professional Sales Representative
113Active Xxxxxx Xxxxx Professional Sales Representative
114Active Xxxxxxxx Xxxx Professional Sales Representative
115Active Xxxxxx Xxxxxx Professional Sales Representative
116Active Methuselah Xxx Professional Sales Representative
117Active Xxxxxxx Xxxxxxx Professional Sales Representative
118Active Xxxxxxx Xxxx Professional Sales Representative
119Active Xxxxxx Xxxxx Professional Sales Representative
120Active Xxxxxx Xxxxxxx Professional Sales Representative
121Active Xxxxxxx Xxxxxx Professional Sales Representative
122Active Xxxxxxx Xxxxxx Professional Sales Representative
123Active Xxxxxxx Xxxx Professional Sales Representative
124Active Small Xxxxx Professional Sales Representative
125Active Xxxxx Xxxxxx Professional Sales Representative
126Active Xxxx Xxxxx Professional Sales Representative
127Active Xxxxx Xxxxx Professional Sales Representative
128Active Xxxxxx Xxxxxx Professional Sales Representative
129Active Xxxxxxx Xxxxxx Professional Sales Representative
130Active Xxxxx Xxxxxxxxx Professional Sales Representative
131Active Xxxxxx Xxxxx Professional Sales Representative
132Active Xxxxxx Xxxxxx Professional Sales Representative
133Active Xxxxx Xxxx Professional Sales Representative
134Active Xxxxx Xxxxxxxx Professional Sales Representative
135Active Xxxxxx Xxxxxxxx Professional Sales Representative
136Active Xxxxxx Xxxxxxx Professional Sales Representative
137Active XxXxxxxx Xxxx Professional Sales Representative
138STD (2) Xxxxxxxx Xxxxxxxx Professional Sales Representative
139Active Xxxxxx Xxxx Professional Sales Representative
140Active Xxxxx Xxxxxxx Professional Sales Representative
141Active Xxxxxxxxx Xxxxxx Professional Sales Representative
142Active Xxxxxx Xxxxx Professional Sales Representative
143Active Xxxx Xxxxx Professional Sales Representative
144Active Xxxxx Xxxxx Professional Sales Representative
145Active Xxxxxxx Xxxxx Professional Sales Representative
146Active Xxxxxxxxx Xxxx Professional Sales Representative
147Active Xxxxx Xxxxxxxxx Professional Sales Representative
148Active Xxxx-Xxxxxxx Xxxxx Professional Sales Representative
149Active Xxxxxx Xxxxx Professional Sales Representative
150Active Xxxxxx Xxxxxxx Professional Sales Representative
151Active Xxxxx Xxxx Professional Sales Representative
152Active Xxxxx Xxxxxxxx Professional Sales Representative
153Active Xxxxx Xxxxxxxx Professional Sales Representative
154Active Xxxxxx Xxxxxxxx Professional Sales Representative
155Active Xxxxxxxx Xxxx Professional Sales Representative
156Active Black Brittany Professional Sales Representative
157Active Xxxxxxxxx Xxxxxxx Professional Sales Representative
158Active Xxxxxxx Xxxx Professional Sales Representative
159Active Pribble J. Professional Sales Representative
160Active Xxxxxxxxxxx Xxxxxxx Professional Sales Representative
161Active Current Xxxxx Professional Sales Representative
162Active Xxxxxx Xxxx Professional Sales Representative
163Active Xxxxxxx Xxxxxx Professional Sales Representative
164Active Xxxxxxxx Xxxxxxxx Professional Sales Representative
165Active Xxxxxxx Xxxx Professional Sales Representative
166Active Xxxxxxx Xxxxx Professional Sales Representative
167Active Xxxxx Xxxxxxx Professional Sales Representative
168Active Xxxxxx Xxxxx Professional Sales Representative
169Active Xxxxx Xxxxxxx Professional Sales Representative
170Active XxXxxxxx Xxx Professional Sales Representative
171Active Xxxxxxx Xxxxxxxx Professional Sales Representative
172Active Field Xxx Professional Sales Representative
173Active Xxxx Xxx Professional Sales Representative
174Active Xxxxxxx Xxxxx Professional Sales Representative
175Active Xxxxxxx Xxxxxxx Professional Sales Representative
176Active Xxxxx Xxx Professional Sales Representative
177Active Xxxxxx Xxxxxx Professional Sales Representative
178Active Xxxxxxxx X.X Professional Sales Representative
179Active Xxxxxxxxx Xxxx Professional Sales Representative
180Active Puma Xxxxx Professional Sales Representative
181Active Xxxxxxx Xxxxxxx Professional Sales Representative
182Active Xxxxxx Xxxxxxxxx Professional Sales Representative
183Active Xxxxxxx Xxxx Professional Sales Representative
184Active Xxxx Xxxx Professional Sales Representative
185Active Xxxxxxxxx Xxxxxxx Professional Sales Representative
186Active Xxxxx Xxxxx Professional Sales Representative
AREA BUSINESS MANAGERS:
-----------------------
187Active Xxxxxxx Xxxxxxx Area Business Manager
188Active Xxxxxx Xxxxx Area Business Manager
189Active Xxxxx Xxxx Area Business Manager
190Active Xxxxx Xxxxx Area Business Manager
191Active XxXxxxxxx Xxxxx Area Business Manager
192Active Xxxxxx Xxxxx Area Business Manager
193Active Xxxxxx Xxxxx Area Business Manager
194Active Xxxxxx Xxxx Area Business Manager
195Active Xxxxxxxx Xxxxxx Area Business Manager
196Active Xxxxxxxx Xxxxx Area Business Manager
MEDICAL SCIENCE LIASONS:
------------------------
197Active Xxxxxxxxx Xxx Medical Science Liason
198Active Xxxxxx-Xxxx Luke Medical Science Liason
199Active O'Xxxxxxx Xxxxxx Medical Science Liason
200Active Xxxxx Xxxx Medical Science Liason
201Active Xxxxxx Xxxxx Medical Science Liason
202Active Xxxxxxx Xxxx Medical Science Liason
203Active Lamp Xxx Medical Science Liason
204Active (3) Xxxxxxxx Xxxxx Medical Science Liason
(1) Out on Short-term Disability as of June 26
(2) Out on Short-term Disability as of July 25
Schedule 2(a)((beta))
Aventis Pre-Employment Conditions
1. Completion of I-9 form.
2. Completion of W-4 form.
3. Acknowledgement of Aventis Business Conduct Policy.
4. Disclosure of conflicts of interest.
5. Signing of Confidentiality Agreement.
6. Completion of payroll authorization form.
7. Completion of personal photograph permission slip.
8. Completion of prior employment certificate form.
9. Receipt and acknowledgement of specific Aventis policies.
10. Completion of certificate of employability.
11. Completion of standard employment application form.
Schedule 2(a)((chi))
1. Name.
2. Social Security Number.
3. Home Address (Shipping address if different).
4. Home phone.
5. Date of birth.
6. Country of citizenship.
7. Gender.
8. Marital status. Emergency Contact - Name, gender, relationship, home
phone, office phone, cell phone.
9. Ethnic origin - African American, Asian or Pacific Islander, Caucasian,
Hispanic, Native American / Alaskan.
10. Veteran status - Special disabled veteran, Vietnam-era veteran, Other
veteran, non-veteran.
11. Date of hire at ViroPharma or VCO (or other appropriate date on file to
use for credited service calculation).
12. Base salary.
13. Existing job title.
14. Existing grade.
Schedule 5 (a)
Aventis' Transition Assistance Plan
Effective for Aventis Pharmaceuticals, Inc. associates as of March 1, 2002 until
superceded
ELIGIBILITY:
Regular full time and part time associates of Aventis Pharmaceuticals Inc.
(Aventis) whose home country is the United States (excluding Puerto Rico).
Temporary or other non-regular associates (e.g., peak time, flow, prime time,
floating cadre, interns) do not participate in the Transition Assistance
Program.
Eligible associates are regular full-time and part-time active associates who
will be terminated for performance reasons, as determined by Aventis, because:
. Aventis has decided to terminate their employment for performance
reasons because of their performance against the expectations set
forth in a Written Warning and a Final Written Warning (as outlined in
the Aventis Performance Improvement Policy); or
. at some point while under a Written Warning or a Final Written Warning
for performance reasons, as determined by Aventis, under the formal
performance improvement process (as outlined in the Aventis
Performance Improvement Policy) they have informed their manager or
Human Resources, in writing, that they wish to participate in this
Transition Assistance Program.
Only associates whose termination is for performance reasons, as determined by
Aventis, are eligible for the Transition Assistance Program. Associates whose
employment ends for reasons that make them eligible for benefits under the
Separation Plan of Aventis are not eligible for the Transition Assistance
Program. Associates whose employment ends for any other reason (for example,
because of voluntary resignation, retirement, death, expiration of a leave of
absence, inability to perform for medical reasons, misconduct, insubordination,
dishonesty, breach of trust, deliberate acts contrary to the interests of
Aventis, excessive lateness or absenteeism, disclosure of confidential or
propriety information, violation of Aventis policies, or any other reason that
Aventis determines is not a performance reason for purposes of the Transition
Assistance Program), are not eligible for the Transition Assistance Program.
Note: In order to receive payments or other benefits under the Transition
Assistance Program described below, eligible associates must sign an Aventis
provided Separation Agreement and Release, and not revoke that Separation
Agreement and Release.
TRANSITION ASSISTANCE:
Transition Assistance Pay will be equal to one and one-half weeks of base pay
for each year of service. Minimum payment is two months of base pay; maximum is
nine months of base pay.
Minimum amount of Transition Assistance Pay for any eligible participant is:
Grade level 60 and above: 6 months
Grade level 50 - 55: 4.5 months
Grade level 45: 3 months
Grade level 40 and below: 2 months
Transition Assistance Pay will be paid as a lump sum as soon as practicable
after your signed Separation Agreement and Release is received by Aventis (but
no earlier than 8 days after the date you sign the Separation Agreement and
Release.) Payment of the lump sum will not be made until all outstanding
balances (e.g. American Express/AT&T) are paid, and all Aventis property has
been returned to Aventis.
HEALTH CARE AND DENTAL COVERAGE:
Access to health care and dental coverage will be available at active associate
rates for a period of time coincident with the Transition Assistance period.
COBRA coverage (generally 18 months less Transition Assistance period) will be
available at the end of this time.
TRANSITION ARRANGEMENTS:
. Professional outplacement services will be made available.
