CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made as of this 13th day of
November 1997 by and between ViroPharma Incorporated (the "Company") and Xxxxx
X. Xxxxxxxx (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
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this 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 product development,
operations, marketing and strategic alliances (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 20,000 shares of the Company's Common Stock, par value $.002 per
share, such options to have an exercise price of $21.00 per share and to vest
in equal increments over a three 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.
9. INDEMNIFICATION. If Consultant is a party or is threatened to be made a
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party to an action or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that he is or was a consultant to the
Company or any predecessor of the Company or served any other enterprise as a
director, officer or employee at the request on the Company or any predecessor
of the Company, then the Company shall indemnify Consultant to the full extent
of (and subject to the limitation set forth in) of Title 8, Section 145 of the
Delaware General Corporation Law (the Delaware Indemnification Law"), as
though Consultant was an "agent" of the Company for purposes of the Delaware
Indemnification Law. This Section 9 shall survive the termination of this
Agreement for the duration of the statute of limitations that might apply to a
claim asserted by reason of the fact that Consultant was a consultant to the
Company or any predecessor of the Company or served any other enterprise as a
director, officer or employee at the request on the Company or any predecessor
of the Company.
IN WITNESS WHEREOF, the parties have caused this Consulting Agreement to be
executed the day and year first above written.
VIROPHARMA INCORPORATED
By: /s/ Xxxxxx X. Xxxx
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Its: President and Chief Executive Officer
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CONSULTANT
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
