8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of Earliest Event Reported): September 10, 2008

VIROPHARMA INCORPORATED

(Exact Name of Registrant as Specified in its Charter)

DELAWARE	0-021699	23-2789550
(State or Other Jurisdiction of Incorporation or Organization)	(Commission File Number)	(I.R.S. Employer Identification Number)

397 EAGLEVIEW BOULEVARD, EXTON, PENNSYLVANIA 19341

(Address of Principal Executive Offices including Zip Code)

(610) 458-7300

(Registrant’s Telephone Number, Including Area Code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

x Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act(17CFR240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act(17CFR240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act(17CFR240.13e-4(c))

Item 1.01 Entry Into a Material Definitive Agreement.

On September 10, 2008, ViroPharma Incorporated (the “Company”), HAE Acquisition Corp (“Merger Sub”), and Lev Pharmaceuticals, Inc. (“Lev”), executed a waiver letter in connection with that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of July 15, 2008, by and among the Company, Merger Sub and Lev. The waiver letter is filed as Exhibit 2.1 to this Report on Form 8-K and is incorporated herein by reference. Pursuant to the waiver letter, each of the parties acknowledges that upon consummation of the merger contemplated by the Merger Agreement, the stockholders of Lev, upon receipt of shares of common stock of the Company pursuant to the Merger Agreement, will not receive any Buyer Rights (as such term is defined in the Merger Agreement) as a result of the expiration of the Company’s Rights Agreement (as defined below under Item 3.03 of this Report), which expired at the close of business on September 10, 2008, unless the Company adopts another stockholder rights plan. Each of the parties also agree that the expiration of the Rights Agreement and the fact that stockholders of Lev will not receive any Buyer Rights as part of the consideration in the merger is not a breach of, or a failure of a closing condition under, the Merger Agreement.

Item 3.03. Material Modification to Rights of Security Holders.

The Rights Agreement (the “Rights Agreement”) between the Company and StockTrans, Inc., as rights agent, expired on September 10, 2008. The Rights Agreement expired in accordance with its terms and the Company’s Board of Directors has decided not to renew it. The terms of the Rights Agreement and the participating preferred share purchase rights issued under it are described in the Company’s Form 8-A filed with the Securities and Exchange Commission on September 21, 1998 (including the exhibits thereto). As a result of the decision to allow the Rights Agreement to expire in accordance with its terms, the participating preferred share purchase rights under the Rights Agreement have terminated and are no longer effective.

Item 9.01 Financial Statements and Exhibits.

The following exhibit is attached to this Form 8-K:

(d)	Exhibit No.	Description
	2.1	Waiver Letter, dated September 10, 2008.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	VIROPHARMA INCORPORATED
Date: September 10, 2008	By:	/s/ J. Peter Wolf
		J. Peter Wolf
		Vice President, General Counsel and Secretary

EX-2.1

Exhibit 2.1

ViroPharma Incorporated

397 Eagleview Boulevard

Exton, PA 19341

September 10, 2008

Lev Pharmaceuticals, Inc.

675 Third Avenue, Suite 2200

New York, NY 10017

Attn: Judson Cooper

Re: Agreement and Plan of Merger dated as of July 15, 2008, by and among
ViroPharma Incorporated, HAE Acquisition Corp. and Lev Pharmaceuticals, Inc. (the “Merger Agreement”)

Dear Mr. Cooper:

As you are aware, absent prior affirmative action by ViroPharma Incorporated (“ViroPharma”), under the terms of the Buyer Rights Agreement, upon and following the close of business on September 10, 2008 (the “Rights Expiration Date”), the Buyer Rights previously distributed in respect of the shares of common stock, par value $0.002 per share, of ViroPharma (the “ViroPharma Common Stock”) will expire and no longer be exercisable (the “Rights Expiration”), and no Buyer Rights will be issued in respect of shares of ViroPharma Common Stock that are issued after such date. The Rights Expiration Date will not be extended by ViroPharma and, upon and following the Rights Expiration Date, notwithstanding Section 3.4(d) of the Merger Agreement and the definition of the term “Buyer Common Stock” set forth in Section 11.1(a) of the Merger Agreement, the shares of Buyer Common Stock issued in the Merger shall not include or be accompanied by the issuance of a Buyer Right unless ViroPharma adopts another rights plan. All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Merger Agreement.

Lev Pharmaceuticals, Inc.

September 10, 2008

Page 2

Please evidence your acceptance of and agreement to the foregoing (which, for the avoidance of doubt, shall not constitute a breach under the Merger Agreement or the failure of a closing condition thereunder) by signing and returning the enclosed copy of this letter.

		Sincerely,
		VIROPHARMA INCORPORATED
		By:	/s/ J. Peter Wolf
		Name:	J. Peter Wolf
		Title:	VP, General Counsel
		HAE ACQUISITION CORP.
		By:	/s/ J. Peter Wolf
		Name:	J. Peter Wolf
		Title:	Secretary
Accepted and agreed to as of the date first set forth above:
LEV PHARMACEUTICALS, INC.
By:	/s/ Judson Cooper
Name:	Judson Cooper
Title:	Chairman