Exhibit 4.1
STOCK AND WARRANT PURCHASE AGREEMENT
This Stock and Warrant Purchase Agreement (the “Agreement”) is made this 6
th
day of
August, 2007 between BioCryst Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and
each of the Investors identified on the signature pages hereto (the “Investors”).
The Company has authorized the sale and issuance of up to 8,333,333 shares (the “Shares”) of
common stock of the Company, $0.01 par value per share (the “Common Stock”), and warrants to
purchase up to 3,166,667 shares of the Common Stock, in the form attached hereto as Exhibit B (the
“Warrants”), to the Investors in a private placement (the “Offering”).
IN CONSIDERATION of the mutual covenants contained in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company
and the Investors hereby agree as follows:
1. Authorization and Sale of the Shares and Warrants; Registration.
Subject to the terms and
conditions of this Agreement, the Company has authorized the sale of the Shares and the Warrants.
The Shares, the Warrants and the Warrant Shares have not been registered with the Securities and
Exchange Commission (the “Commission” or the “SEC”) any state or foreign securities authorities.
The Shares, the Warrants and the Warrant Shares shall bear legends in the respective forms set
forth in Section 5.8 and Exhibit B.
2. Agreement to Sell and Purchase the Shares and Warrants; Subscription Date; Additional
Agreements.
2.1
Subject to the terms and conditions of this Agreement, at the Closing the Company and each
Investor agrees to purchase severally and not jointly from the Company and the Company agrees to
issue and sell to such Investor severally and not jointly that number of Shares shown below such
Investor’s name on the signature pages hereto, for a purchase price of Seven Dollars and Eighty
Cents ($7.80) per share; and (b) number of Warrants to purchase shares of Common Stock (the
“Warrant Shares”) shown below such Investor’s name on the signature pages hereto, for a purchase
price of $0.125 per Warrant Share. Unless otherwise requested by the Investor or specified in
Exhibit A-1, certificates representing the Shares and Warrants purchased by the Investor will be
registered in the Investor’s name and address as set forth on the signature pages hereto.
2.2
The Investors acknowledge that: (a) the Company will be placing the Shares and Warrants
directly without an underwriter or placement agent and (b) the offering of the Shares and Warrants
is not a firm commitment underwriting.
2.3
At the Closing, the Company shall provide the Investors with an Opinion of Company’s legal
counsel, reasonably satisfactory to the Investors in the form of Schedule I attached hereto.
3. Delivery of the Shares and Warrants at Closing.
3.1
The completion of the purchase and sale of the Shares and the Warrants (the “Closing”)
shall occur at the offices of Holme Roberts & Owen LLP, 1700 Lincoln Street, Suite 4100,
Denver, Colorado 80203, at 10:00 o’clock A.M. E.S.T. on August 9, 2007 (the “Closing Date”), or
such later date as the conditions to closing are met or waived, or such other date and time as the
Company and the Investors mutually agree. At the Closing, unless the Investors and the Company
otherwise agree (i) each Investor shall pay the Purchase Price to the Issuer, by wire transfer of
immediately available funds to the account designated on Exhibit C hereto; (ii) the Issuer shall
issue to each Investor their respective Shares and Warrants, and deliver to each Investor their
respective certificates for their Shares and their Warrants duly registered in the name of the
applicable Investor(s); and (iii) all other agreements and other documents referred to in this
Agreement which are required for the Closing shall be executed and delivered (if that is not done
prior to the Closing). Each such certificate and Warrant shall be registered in the name of the
Investors or, if so indicated on the Stock Certificate Questionnaire attached hereto as Exhibit
A-1, in the name of a nominee designated by the Investors.
3.2
The Company’s obligation to issue the Shares and the Warrants to the Investors shall be
subject to the following conditions, any one or more of which may be waived by the Company: (a)
receipt by the Company of the purchase price for the Shares and Warrants being purchased hereunder
as set forth on Exhibit A hereto (the “Purchase Price”); and (b) the accuracy of the
representations and warranties made by the Investors and the fulfillment of those undertakings of
the Investors to be fulfilled prior to the Closing.
3.3
Each Investor’s obligation to purchase the Shares and the Warrants shall be subject to the
following conditions, any one or more of which may be waived by the Investor: (a) trading in the
Common Stock shall not have been suspended by the Commission or the Nasdaq Global Market (except
for any suspension of trading of limited duration agreed to by the Company, which suspension shall
be terminated prior to the Closing Date); (b) receipt of a satisfactory legal opinion from the
Company’s legal counsel pursuant to Section 2.3 of this Agreement; (c) the accuracy of the
representations and warranties made by the Company in Section 4 below as of the Closing and the
fulfillment of those undertakings of the Company to be fulfilled prior to the Closing, no event or
series of events shall have occurred that would reasonably be likely to have or result in a
Material Adverse Effect (as defined below); and the receipt of a customary certificate from the
Secretary of the Company certifying the foregoing; (d) the Company’s delivery to its transfer agent
of irrevocable instructions to issue, subject to the fulfillment of conditions set forth in Section
3.2(a), to each Investor or in such nominee name(s) as designated by each Investor in the Stock
Certificate Questionnaire attached hereto as Exhibit A-1 such number of Shares set forth on such
Investor’s signature page hereto, or if requested by the Investor, one or more certificates
representing such Shares registered in such name(s) or nominee name(s) requested by such Investor;
(e) the Amendment of the Rights Agreement between the Company and American Stock Transfer & Trust
Company dated June 17, 2002 to amend the definition in “Acquiring Person” of Beneficial Owner to
increase the limit from 15% to 25.0% for any Investor who becomes a Beneficial Owner of greater
than 15% as a result of the Offering; (f) the filing with the Nasdaq Global Market a true and
complete Notification Form: Listing of Additional Shares covering the Shares and the Warrant
Shares; (g) all governmental, regulatory or third party consents and approvals, if any, necessary
for the sale of the Shares and the Warrants have been duly obtained; (h) the approval of the Nasdaq
Global Market to list the
Shares and the Warrant Shares; and (i) the aggregate Purchase Price to be paid by the
Investors for the Shares and Warrants shall be greater than or equal to $63,000,000.
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3.4
In the event that the Closing shall not have occurred on or before 5:00 p.m. on the tenth
(10
th
) Business Day after the date hereof due to the condition set forth in Section
3.3(h) above, this Agreement shall terminate (a “Specified Termination”) unless otherwise agreed by
the Company and Investors representing at least a majority of the aggregate number of Shares and
Warrants to be purchased hereunder (the “Required Investors”). Upon a Specified Termination, this
Agreement shall terminate without liability of any party hereto to any other party; provided,
however, that upon a Specified Termination the Company shall pay for or reimburse the Investors for
the reasonable expenses of one legal counsel in connection with the Offering, not to exceed
$50,000. Nothing contained in this Section 3.4 shall be deemed to release any party from any
liability for any breach by such party of the terms and provisions of this Agreement or to impair
the right of any party to compel specific performance by any other party of its obligations under
this Agreement.
4. Representations, Warranties and Covenants of the Company.
Except as otherwise described in
the Company’s filings with the Commission since December 31, 2006 (the “Commission Documents”), in
the Company’s press releases since December 31, 2006 (the “Press Releases”), or as disclosed in the
disclosure schedules attached hereto as Schedule II (the “Disclosure Schedules”), (the Commission
Documents, the Press Releases, and the Disclosure Schedules are collectively referred to herein as
the “Company Information”), which qualify the following representations and warranties in their
entirety, the Company hereby represents and warrants to, and covenants with, the Investors, as
follows:
4.1 Organization, Good Standing and Qualification.
The Company 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 lawful authority to conduct its business as described in its Company
Information. The Company is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the nature of the business conducted or as proposed to be
conducted in its Company Information, by it or the properties owned, leased or operated by it,
makes such qualification or licensing necessary and where the failure to be so qualified or
licensed would be reasonably likely to have a material adverse effect upon the business, assets,
properties, condition, financial or otherwise, or in the results of operations or business affairs
of the Company (“Material Adverse Effect”).
4.2 Capitalization and Voting Rights.
The authorized, issued and outstanding capital stock of
the Company is as set forth in the Disclosure Schedules as of the date thereof; all issued and
outstanding shares of capital stock of the Company are validly issued, fully paid and
nonassessable. Except as set forth in the Company Information and except for shares reserved for
issuance pursuant to employee and consultant benefit and option plans within the limits specified
therein, there are no outstanding options, warrants, agreements, commitments, convertible
securities, preemptive rights or other rights to subscribe for or to purchase any shares of capital
stock of the Company nor are there any agreements, promises or commitments to issue any of the
foregoing. Except as set forth in the Commission Documents, in this Agreement and as otherwise
required by law, there are no restrictions upon the voting or transfer of the Shares pursuant to
the Company’s Third Restated Certificate of Incorporation, as
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amended (the “Certificate of Incorporation”), Bylaws, as amended (the “Bylaws”), or other
governing documents or any agreement or other instruments to which the Company is a party or by
which the Company is bound. The Company has not issued any capital stock since its most recently
filed periodic report under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
other than pursuant to the exercise of employee stock options under the Company’s stock option
plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock
purchase plans and pursuant to the conversion or exercise of Company securities outstanding as of
the date of the most recently filed periodic report under the Exchange Act. The issuance and sale
of the Shares and the Warrants will not obligate the Company to issue shares of Common Stock or
other securities to any person other than the Investors and will not result in a right of any
holder of Company securities to adjust the exercise, conversion, exchange or reset price under any
of such securities. There are no stockholders agreements, voting agreements or other similar
agreements with respect to the Company’s capital stock to which the Company is a party or, to the
knowledge of the Company, between or among any of the Company’s stockholders.
4.3 Authorization; Enforceability.
The Company has all corporate right, power and authority to
enter into this Agreement and to consummate the transactions contemplated hereby. All corporate
action on the part of the Company, its directors and stockholders necessary for the authorization,
execution, delivery and performance of this Agreement by the Company, the authorization, sale,
issuance and delivery of the Shares, the Warrants and the Warrant Shares and the performance of the
Company’s obligations hereunder has been taken. This Agreement has been duly executed and
delivered by the Company and constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to laws of general
application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies, and to limitations of public
policy. The Shares and the Warrants have been duly and validly authorized and, upon the issuance
and delivery thereof and payment therefor as contemplated by this Agreement, will be free and clear
of liens other than liens caused by the Investors, duly and validly authorized and issued, fully
paid and nonassessable. The issuance and sale of the Shares and the Warrants contemplated hereby
will not give rise to any preemptive rights or rights of first refusal on behalf of any person.
The Warrant Shares have been duly and validly authorized and reserved for issuance and, upon the
issuance and delivery thereof and payment therefor as contemplated by the terms of the Warrants,
will be free and clear of liens other than liens caused by the Investors, duly and validly
authorized and issued, fully paid and nonassessable.
4.4 No Conflict; Governmental Consents.
(a)
The execution, delivery and performance by the Company of this Agreement, the consummation
of the transactions contemplated hereby and the offer and sale of the Shares and the Warrants will
not conflict with or result in a breach or violation of (i) any material law, statute, rule,
regulation, order, writ, injunction, judgment or decree of any court or governmental authority to
or by which the Company is bound, or (ii) any provision of the Certificate of Incorporation or
Bylaws of the Company, or (iii) any of the terms or provisions of, or constitute (with due notice
or lapse of time or both) a default under, any lease, loan agreement, mortgage, security agreement,
trust indenture or other agreement or instrument to which the
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Company is a party or by which it is bound or to which any of its properties or assets is
subject, where such conflict, breach or default for purposes of clause (i) and (iii) is reasonably
likely to result in a Material Adverse Effect, nor result in the creation or imposition of any lien
upon any of the material properties or assets of the Company.
(b)
No consent, waiver, approval, authorization or other order of any governmental authority
is required to be obtained by the Company in connection with the authorization, execution and
delivery of this Agreement or with the authorization, issuance and sale of the Shares and the
Warrants, except such filings as may be required to be made, and which shall have been made at or
prior to the required time, with the SEC, the NASD and The NASDAQ Stock Market LLC (“Nasdaq”), and
with any state or foreign blue sky or securities regulatory authority.
4.5 Licenses.
The Company has all licenses, permits and other governmental authorizations
currently required for the conduct of its business or ownership of properties and is in all
material respects complying therewith, except for any licenses, permits or other governmental
authorizations, the lack of which would not to the actual knowledge of the Company’s executive
officers, without special investigation (“Company’s Knowledge” or “Knowledge of the Company”) be
reasonably likely to result in a Material Adverse Effect.
4.6 Intellectual Property
. To the Company’s Knowledge, the Company owns or has licensed
legally enforceable rights to use all patents, patent applications, inventions, trademarks,
trademark applications, trade names, service marks, copyrights, copyright applications, licenses,
know-how and other similar rights and proprietary knowledge (collectively, “Intangibles”) necessary
for the conduct of its business as currently conducted. Except as otherwise disclosed in the
Company Information, the Company does not have Knowledge that, and has not received actual notice
that, in a manner that is likely to result in a Material Adverse Effect: (i) there are any rights
of third parties to any such Intangibles; (ii) there is any infringement by third parties of any
such Intangibles; (iii) there are any pending or threatened actions, suits, proceedings or claims
by others challenging the Company’s rights in or to any such Intangibles; (iv) there are any
pending or threatened action, suit or proceeding by others challenging the validity or scope of any
such Intangibles; (v) there are any pending or threatened actions, suits, proceedings or claims by
others that the Company infringes or otherwise violates any patent, trademark, copyright, trade
secret or other proprietary rights of others; (vi) there is any U.S. patent or published U.S.
patent application which contains claims that dominate or may dominate any Intangibles described in
the Company Information as being owned by or licensed to the Company or that interferes with the
issued or pending claims of any such Intangibles; and (vii) there is any prior art of which the
Company is aware that likely will render any U.S. patent held by the Company invalid or any U.S.
patent application held by the Company unpatentable which has not been disclosed to the U.S. Patent
and Trademark Office.
4.7 Clinical, Pre-clinical Studies and Tests
. The clinical, pre-clinical and other studies
and tests conducted by or on behalf of or sponsored by the Company or in which the Company has
participated that are described in the Company Information or the results of which are referred to
in the Company Information were and, if still pending, are being conducted in all material respects
in accordance with all applicable laws, regulations and in all material respects in accordance with
standard medical and scientific research procedures. The
5
descriptions in the Company Information of the results of such studies and tests are accurate
in all material respects and do not contain any material misstatements nor omit to make statements
necessary to make the statements made not misleading, and the Company does not have Knowledge of
other studies or tests of the Company’s clinical product candidates, the results of which are
inconsistent in a material and adverse manner with the results described or referred to in the
Company Information. Except to the extent disclosed in the Company Information, the Company has
not received any notices or other correspondence from the FDA or any other governmental agency
requiring the termination, suspension or modification of any clinical or pre-clinical studies or
tests that are described in the Company Information or the results of which are referred to in the
Company Information.
4.8 FDA Permits
. The Company holds and is operating in material compliance with such
applications, exceptions, permits, licenses, franchises, authorizations and clearances of the U.S.
Food and Drug Administration (the “FDA”) and/or any committee thereof required, for the conduct of
its business as currently conducted, including, but not limited to any Investigational New Drug
applications (“INDs”) and any comparable regulatory applications (collectively, the “FDA Permits”)
it being understood that the Company has filed no New Drug Applications (“NDAs”), and all such FDA
Permits are in full force and effect in all material respects, subject in each case to such
exceptions and qualifications as are set forth in the Company Information. The Company has
fulfilled and performed all of its material obligations with respect to the FDA Permits, and, no
event has occurred which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other impairment of the rights of the holder of any FDA
Permit, subject in each case to such exceptions and qualifications as are set forth in the Company
Information.
4.9 Litigation.
The Company knows of no pending or threatened legal or governmental
proceedings against the Company which, if determined adversely to the Company would be reasonably
likely, individually or in the aggregate, to have a Material Adverse Effect; and, to the
knowledge of the Company, such proceedings are not threatened or contemplated by governmental
authorities or threatened by others. The Company is not aware of any threatened or pending
litigation between the Company and any of its executive officers which, if adversely determined,
would be reasonably likely to have a Material Adverse Effect and has no reason to believe that such
officers will not remain in the employment of the Company.
4.10 Accuracy of Reports.
All reports required to be filed by the Company within the three
years prior to the date of this Agreement under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), have been duly and timely filed with the SEC, complied at the time of filing
in all material respects with the requirements of their respective forms and, were complete and
correct in all material respects as of the dates at which the information was furnished, and
contained (as of such dates) no untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements contained therein, in light of the circumstances
under which they were made, not misleading.
4.11 Material Contracts
. There is no document, contract or other agreement required to be
described in the Commission Documents (“Material Contracts”) which is not described or filed as
required by the Exchange Act or incorporated therein by reference. Each description of any
Material Contract in the Commission Documents accurately reflects in all
6
material respects the terms of the underlying contract, document or other agreement. Each
such Material Contract is in full force and effect and is valid and enforceable by and against the
Company in accordance with its terms. Neither the Company nor, to the Company’s Knowledge, any
other party is in default in the observance or performance of any material term or obligation to be
performed by it under any such Material Contract, and no event has occurred which with notice or
lapse of time or both would constitute such a default, in any such case which default or event,
individually or in the aggregate, would be reasonably likely to have a Material Adverse Effect. No
default exists, and no event has occurred which with notice or lapse of time or both would
constitute a default, in the due performance and observance of any material term, covenant or
condition, by the Company of any other agreement or instrument to which the Company is a party or
by which Company or its properties or business may be bound which default or event, individually or
in the aggregate, would be reasonably likely to have a Material Adverse Effect.
4.12 Investment Company.
The Company is not an “investment company” within the meaning of
such term under the Investment Company Act of 1940, as amended, and the rules and regulations of
the SEC thereunder.
4.13 Listing.
The Company shall file within one (1) Business Day a Notification Form: Listing
of Additional Shares with Nasdaq and hereby represents and warrants to the Investors that it will
take any other necessary action in accordance with the rules of Nasdaq to enable the Shares and
when issued, the Warrant Shares, subject to compliance with applicable securities laws, to trade on
the Nasdaq Global Market.
4.14 No Material Adverse Change.
Except as disclosed in the Company Information, since the
filing of the Company’s most recent Quarterly Report on Form 10-Q, (i) there has not been any
Material Adverse Effect, and (ii) there has been no event or condition of any character that would
likely result in a Material Adverse Effect.
4.15 Financial Statements.
The financial statements included in the Company’s most recent
Annual Report on Form 10-K, for the fiscal year ended December 31, 2006, and all other reports
filed by the Company pursuant to the Exchange Act since the filing of such Annual Report on Form
10-K and prior to the date hereof (collectively, the “SEC Filings”) present fairly and accurately
in all material respects the financial position of the Company as of the dates shown and its
results of operations and cash flows for the periods shown, and such financial statements have been
prepared in conformity with generally accepted accounting principles applied on a consistent basis.
Except as set forth in the financial statements of the Company included in the SEC Filings filed
prior to the date hereof, to the best of the Company’s knowledge, the Company has no liabilities,
contingent or otherwise, except those which individually or in the aggregate are not material to
the financial condition or operating results of the Company.
4.16 Independent Accountants
. Ernst & Young LLP, whose reports are filed with the Commission
are and, during the periods covered by their reports, was an independent registered public
accounting firm as required by the Securities Act of 1933, as amended (the “Securities Act”) and
the rules and regulations of the Commission thereunder and the Public Company Accounting Oversight
Board.
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4.17 Application of Takeover Protections
. The Company and the Board of Directors have taken
all necessary action, if any, in order to render inapplicable any control share acquisition,
business combination, poison pill (including any distribution under a rights agreement) or other
similar anti-takeover provision under the Company’s certificate of incorporation, bylaws (or
similar charter documents) or the laws of its state of incorporation that is applicable to the
Investors as a result of the Investors and the Company fulfilling their obligations under this
Agreement, including without limitation as a result of the Company’s issuance of the Shares and
Warrants and the Investors’ ownership of the Shares and Warrants Investor’s exercise of rights
under Section 7, or Investor’s exercise of the Warrants.
4.18 Compliance with Laws.
The Company is in compliance with all applicable Nasdaq continued
listing requirements. There are no proceedings pending or, to the Company’s knowledge, threatened
against the Company relating to the continued listing of the Company’s Common Stock on Nasdaq and
the Company has not received any notice of, nor to the knowledge of the Company is there any basis
for, the delisting of the Common Stock from Nasdaq.
4.19 Sarbanes-Oxley Act.
The Company is in substantial compliance with the applicable
provisions of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), and the rules and
regulations promulgated thereunder, that are applicable to it.
4.20 Disclosure.
To the best of the Company’s knowledge, neither this Agreement nor any other
documents, certificates or instruments furnished to the Investors by or on behalf of the Company in
connection with the transactions contemplated by this Agreement, taken as a whole together with the
Company Information, contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements made herein or therein, in the light of the
circumstances under which they were made herein or therein, not misleading.
4.21 ERISA
. The Company has fulfilled in all material respects its obligations, if any, under
the minimum funding standards of Section 302 of the U.S. Employee Retirement Income Security Act of
1974 (“ERISA”) and the regulations and published interpretations hereunder with respect to each
“plan” as defined in Section 3(3) of ERISA and such regulations and published interpretations in
which its employees are eligible to participate and each such plan is in compliance in all material
respects with the presently applicable provisions of ERISA and such regulations and published
interpretations. No “Reportable Event” (as defined in 12 ERISA) has occurred with respect to any
“Pension Plan” (as defined in ERISA) for which the Company could have any liability.
4.22 Brokers or Finders
. No broker, investment banker, financial advisor or other individual,
corporation, general or limited partnership, limited liability company, firm, joint venture,
association, enterprise, joint securities company, trust, unincorporated organization or other
entity is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or
commission in connection with the transactions contemplated by this Agreement based upon
arrangements made by or authorized by the Company.
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4.23 No Registration Rights
. No holder of any security of the Company has any right, which
has not been waived, to have any security owned by such holder included in the Registration
Statements (as defined in Section 7.1(a)) or to demand registration of any security owned by such
holder for the period from the date of this Agreement through the ninetieth day following the
effective date of the Registration Statements.
4.24 Employees
. The Company is not currently involved in any labor dispute nor, to the
knowledge of the Company, is any such dispute threatened, which dispute would be reasonably likely
to have a Material Adverse Effect. The Company is not aware of any existing or imminent labor
disturbance by the employees of any of its principal suppliers or contractors which would be
reasonably likely to have a Material Adverse Effect.
4.25 Market Stabilization
. The Company has not taken, nor will it take prior to Closing,
directly or indirectly, any action designed to or which might reasonably be expected to cause or
result in, or which has constituted the stabilization or manipulation of the price of the Common
Stock or any other security of the Company to facilitate the sale of the Shares. Company will
comply with Regulation M to the extent applicable in connection with Investor’s resales of the
Shares or the Warrant Shares pursuant to the registration statements contemplated by Section 7 or
Rule 144.
4.26 Taxes
. The Company has filed all material Federal, state, local and foreign tax returns
which are required to be filed through the date hereof, which returns are true and correct in all
material respects or has received timely extensions thereof, and has paid all taxes shown on such
returns and all assessments received by it to the extent that the same are material and have become
due, other than taxes being contested in good faith and by appropriate proceedings and for which
adequate reserves have been established on the books and records of the Company in accordance with
the accounting principles generally accepted in the United States. There are no tax audits or
investigations pending, which if adversely determined would be reasonably likely to have a Material
Adverse Effect; nor, to the Company’s knowledge, are there any material proposed additional tax
assessments against the Company.
4.27 Books and Record Keeping
. The books, records and accounts of the Company accurately and
fairly reflect, in all material respects, in reasonable detail, the transactions in, and
dispositions of, the assets of, and the results of operations of, the Company. The Company
maintains a system of internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any differences.
4.28 Disclosure Controls
. The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15 under the Exchange Act), which: (i) are designed
to ensure that material information relating to the Company is made known to the Company’s
principal executive officer and its principal financial officer by others
9
within the Company; (ii) provide for the periodic evaluation of the effectiveness of such
disclosure controls and procedures at the end of the periods in which the periodic reports are
required to be prepared; and (iii) are effective in all material respects to perform the functions
for which they were established.
4.29 Off Balance Sheet Arrangements
. There are no material off-balance sheet arrangements (as
defined in Item 303 of Regulation S-K) that have had or are reasonably likely to have a material
current or future effect on the Company’s financial condition, revenues or expenses, changes in
financial condition, results of operations, liquidity, capital expenditures or capital resources.
4.30 Insurance
. The Company is insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as the Company reasonably believes are customary
for companies of approximately equal size to the Company which are engaged in the businesses in
which they are engaged or propose to engage after giving effect to the transactions described
herein; all policies of insurance and fidelity or surety bonds insuring the Company or the
Company’s business, assets, employees, officers and directors are in full force and effect; the
Company is in compliance with the material terms of such policies and instruments in all material
respects; and the Company has not received notice that it will not be able to renew its existing
insurance coverage as and when such coverage expires. The Company has not been denied any material
insurance coverage which it has sought or for which it has applied.
4.31 Use of Proceeds
. The Company intends to use the net proceeds from the sale of the Shares
and Warrants for general corporate purposes, which may include, but are not limited to, research
and development activities, preclinical studies and clinical trials, manufacturing of compounds,
capital expenditures and general working capital.
4.32 Solicitation; Other Issuances of Securities
. Neither the Company or any affiliates, nor
any Person acting on its or their behalf, (i) has engaged in general solicitation or general
advertising (within the meaning of Regulation D under the Securities Act) in connection with the
offer or sale of the Shares and Warrants, (ii) has, directly or indirectly, made any offer or sale
of any security or solicited any offer to buy any security, under any circumstances that would
require registration of the Shares and Warrants under the Securities Act or (iii) has issued any
shares of Common Stock or shares of any series of preferred stock or other securities or
instruments convertible into, exchangeable for or otherwise entitling the holder thereof to acquire
shares of Common Stock which would be integrated with the sale of the Shares and Warrants to any
Investor for purposes of the Securities Act or of any applicable stockholder approval provisions,
including, without limitation, under the rules and regulations of the Nasdaq Global Market, nor
will the Company or any of its affiliates take any action or steps that would negate the exemption
from registration under Section 5 of any of the Shares and Warrants under the Securities Act.
Assuming the accuracy of the representations and warranties of Investors, the offer and sale of the
Shares and Warrants by the Company to the Investors pursuant to this Agreement will be exempt from
the registration requirements of the Securities Act.
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4.33 Commission Filing
. The Company shall file not later than one (1) business day from the
date hereof with the Commission a Current Report on Form 8-K under the
Exchange Act describing the transactions contemplated hereby. The Company shall reflect in
such Current Report on Form 8-K when so filed with the SEC such comments relating to such Investor
as such Investor may reasonably propose. In the event such Form 8-K is not filed by the Company,
the Investors shall each have the right to make a public disclosure, in the form of a press
release, of the transactions contemplated hereby only upon the review and approval of such public
disclosure by the Company, which such approval shall not be unreasonably withheld. The Company
shall file all documents relating to the transactions contemplated hereby required to be filed as
exhibits to such Form 8-K.
4.34 Registration Statement
. The Company meets, and will use reasonable efforts to meet upon
filing and effectiveness, the requirements for use of Form S-3 under the Securities Act for resale
of the Shares, the Warrants and the Warrant Shares.
4.35 Related Party Transactions
. Except for those transactions that are not required to be
disclosed by the Company pursuant to the rules and regulations of the Exchange Act, no transaction
has occurred between or among the Company and any of its officers or directors, shareholders or any
affiliate of any such officer or director or shareholder that is not described in the Commission
Documents.
4.36 Nasdaq Rules
. The issuance and sale of the Shares and Warrants hereunder does not
contravene the rules and regulations of the Nasdaq Global Market.
4.37 Acknowledgment Regarding Investors’ Purchase of Shares and Warrants
. The Company
acknowledges and agrees that each of the Investors is acting solely in the capacity of an arm’s
length purchaser with respect to this Agreement and the transactions contemplated hereby. The
Company further acknowledges that no Investor is acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to this Agreement and the transactions
contemplated hereby. The Company further represents to each Investor that the Company’s decision
to enter into this Agreement has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its representatives.
5. Representations, Warranties and Covenants of the Investors.
5.1
Each Investor individually represents and warrants to, and covenants with, the Company
that: (i) such Investor is knowledgeable, sophisticated and experienced in making, and is qualified
to make decisions with respect to, investments in shares presenting an investment decision like
that involved in the purchase of the Shares and Warrants, including investments in Shares and
Warrants issued by the Company and investments in comparable companies, and has requested,
received, reviewed and considered all information it deemed relevant in making an informed decision
to purchase the Shares and Warrants; (ii) such Investor would be able to bear the economic risks of
and an entire loss of its investment in the Shares and Warrants; (iii) such Investor is acquiring
the number of Shares and Warrants set forth on Exhibit A hereto in the ordinary course of its
business and for its own account for investment only and with no present intention of distributing
any of such Shares and Warrants or any arrangement or understanding with any other persons
regarding the distribution of such Shares and Warrants (this representation and warranty not
limiting such Investor’s right to sell the Shares and
11
Warrants pursuant to the Registration Statements or otherwise in compliance with applicable
federal and state securities laws); (iv) such Investor will not, directly or indirectly, offer,
sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of) any of the Shares or Warrants except in compliance with the Securities
Act, applicable state securities laws and the respective rules and regulations promulgated
thereunder; and (v) such Investor, after giving effect to the transactions contemplated hereby,
will not, either individually or with a group (as defined in Section 13(d)(3) of the Exchange Act),
be the beneficial owner of 19.9% or more of the Company’s outstanding Common Stock. For purposes
of this Section 5.1, beneficial ownership shall be determined pursuant to Rule 13d-3 under the
Exchange Act.
5.2
Each Investor individually acknowledges, represents and agrees that no action has been or
will be taken in any jurisdiction outside the United States by the Company that would permit an
offering of the Shares or Warrants, or possession or distribution of offering materials in
connection with the issuance of the Shares or Warrants, in any jurisdiction outside the United
States where action for that purpose is required. Each Investor outside the United States will
comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases,
offers, sells or delivers Shares or Warrants or has in its possession or distributes any offering
material, in all cases at its own expense. No one other than the Company is authorized to make any
representation or use any information in connection with the issue, placement, purchase and sale of
the Shares and Warrants.
5.3
Each Investor hereby covenants with the Company not to make any sale of the Shares or
Warrants without effectively causing the prospectus delivery requirement under the Securities Act
to be satisfied. Each Investor acknowledges that there may occasionally be times when the Company,
based on the advice of its counsel, determines that it must suspend the use of a Prospectus forming
a part of any Registration Statement until such time as an amendment to such Registration Statement
has been filed by the Company and declared effective by the Commission or until the Company has
amended or supplemented such Prospectus.
5.4
Each Investor further represents and warrants to, and covenants with, the Company that (i)
such Investor has full right, power, authority and capacity to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid
and binding obligation of such Investor enforceable against such Investor in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights
generally and except as enforceability may be subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at law), and except as
may be limited by laws governing specific performance, injunctive relief and other equitable
remedies, and except as the indemnification and contribution provisions may be limited by
applicable law.
5.5
Each Investor agrees that it will not, prior to the effectiveness of the Initial
Registration Statement (as defined in Section 7.1(a)), sell, offer to sell, solicit offers to buy,
dispose of, loan, pledge or grant any right with respect to (collectively, a “Disposition”), the
Shares, Warrants or Warrant Shares purchased in the Offering, nor will such Investor engage in
12
any hedging or other transaction which is designed to or could reasonably be expected to lead
to or result in a Disposition of the Shares, Warrants or Warrant Shares purchased in the Offering
by such Investor or any other person or entity, except as permitted by the Securities Act and the
Exchange Act. Such prohibited hedging or other transactions would include, without limitation,
effecting any short sale or having in effect any short position (whether or not such sale or
position is against the box and regardless of when such position was entered into) or any purchase,
sale or grant of any right (including, without limitation, any put or call option) with respect to
the Shares, Warrants or Warrant Shares purchased in the Offering, except as permitted by the
Securities Act and the Exchange Act.
5.6
Each Investor understands that nothing in this Agreement or any other materials presented
to such Investor in connection with the purchase and sale of the Shares or Warrants constitutes
legal, tax or investment advice. Each Investor has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its
purchase of Shares and Warrants.
5.7
Each Investor represents and warrants that at the time such Investor was offered
the Shares and Warrants, it was, and at the date hereof it is, and on each date on which it
exercises any Warrants, it will be either: (i) an “accredited investor” as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified
institutional buyer” as defined in Rule 144A(a) under the Securities Act.
5.8
Each Investor understands and agrees that all certificates evidencing the Shares to
be issued to such Investor may bear a legend in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY
STATE AND ACCORDINGLY, MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER THE ACT
UNLESS SOLD PURSUANT TO RULE 144 OF THE ACT OR UNLESS SUCH SALE,
PLEDGE, HYPOTHECATION OR TRANSFER IS OTHERWISE EXEMPT FROM THE
REGISTRATION REQUIREMENTS UNDER THE ACT AND IS IN ACCORDANCE WITH
ANY APPLICABLE STATE SECURITIES LAWS. THE ISSUER OF THESE
SECURITIES MAY REQUEST A WRITTEN OPINION OF COUNSEL, REASONABLY
SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT REGISTRATION IS NOT
REQUIRED IN CONNECTION WITH SUCH SALE OR OTHER TRANSFER.
13
5.9 Waiver of Conflict.
Each Investor acknowledges that Latham & Watkins LLP (“LW”) has in
the past performed and is or may now or in the future represent one or more of the Investors or
their affiliates in matters unrelated to the Offering, including representation of
such Investors or their affiliates in matters of a similar nature to the Offering. The
applicable rules of professional conduct require that LW inform the parties hereunder of this
representation and obtain their consent. LW has served as counsel to Baker Bros. Investments
(“BBI”) and has negotiated the terms of the Offering solely on behalf of BBI. It is the belief of
LW that these terms and conditions represent an arm’s length transaction between the Company and
the Investors. Each of the Investors has had the opportunity to be represented by independent
legal counsel regarding the terms of the Offering. The Company and each Investor hereby (i)
acknowledge that they have had an opportunity to ask for and have obtained information relevant to
such representation, including disclosure of the reasonably foreseeable adverse consequences of
such representation; (ii) acknowledge that with respect to the Offering, LW has represented solely
BBI, and not any other Investor or any stockholder, director or employee of any Investor; and (iii)
gives its informed consent to LW’s representation of BBI in the Offering.
6. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation
made by any party to this Agreement, all covenants, agreements, representations and warranties made
by the Company and each of the Investors herein shall survive the execution of this Agreement, the
delivery to the Investor of the Shares and Warrants being purchased and the payment therefor.
7. Registration of the Securities; Compliance with the Securities Act.
7.1 Registration Procedures and Expenses
.
The Company shall:
(a)
subject to receipt of necessary information from the Investors, prepare and file with the
SEC, as soon as practicable, but in no event later than forty-five (45) days after the Closing Date
(the “Initial Filing Date”), a registration statement on Form S-3 (or in the event that the Company
is unable to use Form S-3, then on Form S-1) (the “Initial Registration Statement”) to enable the
resale of the Shares, the Warrants and the Warrant Shares (collectively the “Registered
Securities”) by the Investors from time to time through the Nasdaq Global Market, or other
applicable exchange or in privately-negotiated transactions;
provided, however
, that in the event
that publicly-available written guidance, rules of general applicability of the SEC staff, written
comments, requirements or request of the SEC staff to the Company in connection with the review of
any registration statement (the “SEC Guidance”) does not permit the Initial Registration Statement
to include all Registrable Securities of each Investor (
provided
that, the Company shall use
commercially reasonable efforts to advocate with the SEC for the registration of all or the maximum
number of the Registrable Securities permitted by SEC Guidance), then the Company will use
commercially reasonable efforts to file such additional Registration Statements (the “Subsequent
Registration Statements”, together with the Initial Registration Statements, the “Registration
Statements”) within ten (10) days after the earliest practicable date on which the Company is
permitted by SEC Guidance to file such additional Registration Statements related to the
Registrable Securities (the “Subsequent Filing Dates,” together with the Initial Filing Date, the
“Filing Dates”). If any SEC Guidance sets forth a limitation on the number of Registrable
Securities to be registered on a particular Registration Statement, the number of Registrable
Securities to be registered on such Registration Statement will first be reduced by the Registrable
Securities represented by Warrants and Warrant Shares on a pro rata basis based on the total number
of unregistered Warrants and Warrant Shares held by such Investors on a fully diluted basis, and
second by the Registrable Securities represented
by Shares on a pro rata basis based on the total number of unregistered Shares held by such
Investors;
14
(b)
subject to receipt of necessary information from the Investors, including but not limited
to such Investor information as may be required from time to time by SEC Guidance (the “Investor
Information”), to (1) cause the Initial Registration Statement to become effective as soon as
practicable after the Initial Registration Statement is filed by the Company, but in any event no
later than 4:00 p.m. Eastern Time on the ninetieth (90) day after the Closing Date (or, in the
event of a full review by the Commission, the one hundred twentieth (120) day after the Closing
Date); (2) any Subsequent Registration Statements, as amended, which may be required to be filed
hereunder pursuant to Section 7.1(a) to become effective under the Securities Act as soon as
practicable but in any event no later than 4:00 p.m. Eastern Time on the sixtieth (60) day after
such Subsequent Filing Date, or if such Subsequent Registration Statement is reviewed by the SEC,
on the ninetieth (90) day after such Subsequent Filing Date (each, its “Required Effective Date”);
(c)
cause any prospectus used in connection with any Registration Statement (a “Prospectus”)
to be filed with the SEC pursuant to Rule 424(b) under the Securities Act as soon as practicable
but in any event no later than 5:30 p.m. Eastern Time the next business day following the date such
Registration Statement is declared effective by the Commission;
(d)
prepare and file with the SEC such amendments and supplements to the Registration
Statements and the Prospectus used in connection therewith as may be necessary to keep such
Registration Statement current and effective and as may be reasonably requested by an Investor in
order to incorporate information concerning such Investor or such Investor’s intended method of
distribution for a period not exceeding, with respect to each Investor’s Registered Securities, the
earlier of (i) the second anniversary of the Closing Date, (ii) the date on which such Investor may
sell all Shares and Warrant Shares (collectively, the “Traded Shares”) then held by such Investor
without restriction by the volume limitations of Rule 144(e) of the Securities Act or (iii) such
time as all Traded Shares purchased by such Investor pursuant to this Offering have been sold
pursuant to a registration statement;
(e)
furnish to each Investor with respect to the Registered Securities registered under any
Registration Statement such number of copies of such Registration Statement, Prospectuses and
Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other
documents as such Investor may reasonably request, in order to facilitate the public sale or other
disposition of all or any of the Registered Securities by such Investor, provided, however, that
the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to such
Investor shall be subject to the receipt by the Company of reasonable assurances from such Investor
that such Investor will comply with the applicable provisions of the Securities Act and of such
other securities or blue sky laws as may be applicable in connection with any use of such
Prospectuses or Preliminary Prospectuses;
(f)
file documents required of the Company for normal blue sky clearance in states specified
in writing by the Investors,
provided, however
, that the Company
shall not be required to qualify to do business or consent to service of process in any
jurisdiction in which it is not now so qualified or has not so consented;
15
(g)
furnish to each Investor, two (2) business days after the date that any Registration
Statement becomes effective, (x) a letter, dated such date, of outside counsel representing the
Company (and reasonably acceptable to such Investor) addressed to such Investor, confirming the
effectiveness of such Registration Statement and, to the knowledge of such counsel, the absence of
any stop order, and (y) in the case of firmly underwritten offering, an opinion addressed to such
Investor, dated such date, of such outside counsel, in such reasonable and customary form and
substance as is required to be given to the underwriters;
(h)
provide to each Investor and its representatives, if requested, the opportunity to conduct
a reasonable inquiry of the Company’s financial and other records during normal business hours and
make available its officers, directors and employees for questions regarding information which such
Investor may reasonably request in order to fulfill any due diligence obligation on its part,
provided
, that in the case of this clause (h), the Company shall not be required to
provide, and shall not provide, any Investor with material, non-public information unless such
Investor agrees to receive such information and enters into a written confidentiality agreement
with the Company;
(i)
not less than three (3) trading days prior to the filing of a Registration Statement and
not less than two (2) trading days prior to the filing of any related Prospectus or any amendment
or supplement thereto or in the case of comments made by the staff of the SEC and the Company’s
responses thereto, within a reasonable period of time following the receipt thereof by the Company,
furnish to each Investor copies of all such documents proposed to be filed or copies of such
correspondence from and to the SEC relating to such Registration Statement, as the case may be,
which documents (other than those incorporated or deemed to be incorporated by reference) will be
subject to the review of such Investor. The Company shall reflect in each such document when so
filed with the SEC such comments relating to such Investor as such Investor may reasonably propose;
provided, however
, that such comments from such Investor must be received by the Company no later
than one (1) trading day prior to the filing of such document with the SEC. Notwithstanding any
other provision of this Agreement, the Company will have no obligation to deliver or make available
to any Investor any Registration Statement or Prospectus containing any material, nonpublic
information unless such Investor specifically consents in advance to receive such material,
nonpublic information in writing and such Investor has executed an agreement to keep such material,
nonpublic information confidential and refrain from trading in any Company security for so long as
such information remains material, nonpublic information;
(j)
bear all expenses in connection with the procedures in paragraph (a) through (i) of this
Section 7.1 and the registration of the Registered Securities pursuant to the Registration
Statements;
(k)
advise the Investors, promptly after it shall receive notice or obtain knowledge of the
issuance of any stop order by the SEC delaying or suspending the effectiveness of any Registration
Statement or of the initiation of any proceeding for that purpose; and it will
promptly use its commercially reasonable efforts to prevent the issuance of any stop order or
to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
16
(l)
with a view to making available to the Investors the benefits of Rule 144 (or its
successor rule) and any other rule or regulation of the SEC that may at any time permit the
Investors to sell Traded Shares to the public without registration, the Company covenants and
agrees to: (i) make and keep public information available, as those terms are understood and
defined in Rule 144, until the earlier of (A) such date as all of the Investors’ Traded Shares may
be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of
the Investors’ Traded Shares shall have been resold; (ii) file with the SEC in a timely manner all
reports and other documents required of the Company under the Securities Act and under the Exchange
Act; and (iii) furnish to any Investor upon request, as long as such Investor owns any Traded
Shares, (A) a written statement by the Company that it has complied with the reporting requirements
of the Securities Act and the Exchange Act, (B) a copy of the Company’s most recent Annual Report
on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably
requested in order to avail such Investor of any rule or regulation of the SEC that permits the
selling of any such Traded Shares without registration.
It shall be a condition precedent to the obligations of the Company to take any action
pursuant to this Section 7.1 that such Investor shall furnish to the Company such information
required by the SEC (including without limitation Investor Information) as shall be required to
effect and keep effective the registration of the Registered Securities.
The Company will not offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter
into any transaction which is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic disposition due to cash settlement
or otherwise) by the Company or any affiliate of the Company or any person acting on behalf of the
Company or any affiliate of the Company) directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the SEC in respect of, or establish
or increase a put equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Exchange Act, any other shares of Common Stock or any securities
convertible into, or exercisable, or exchangeable for, shares of Common Stock (collectively, a
“Disposition”); or publicly announce an intention to effect any such transaction, until sixty (60)
days after the Closing Date,
provided
,
however
, that the Company may issue and sell Common Stock
pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of
the Company in effect at the Closing Date, may file an updated Form S-8 registration statement and
the Company may issue Common Stock issuable upon the conversion of securities or the exercise of
warrants outstanding at the Closing Date.
The Company understands that each Investor disclaims being an underwriter, but any Investor
being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has
hereunder,
provided, however
, that if the Company receives notification from the SEC that any
Investor is deemed an underwriter, then such Investor shall provide such further information or
take such further action as may be required to allow any Registration Statement to become effective
for the Registered Securities held by such Investor.
17
7.2 Transfer of Registered Securities After Registration; Suspension
.
(a)
Each Investor agrees that it will not effect any Disposition of the Registered Securities
or its right to purchase the Registered Securities that would constitute a sale within the meaning
of the Securities Act or pursuant to any applicable state securities or Blue Sky laws of any state,
except (i) as contemplated in any Registration Statement covering the Registered Securities that
has been declared effective, (ii) pursuant to the requirements of Rule 144 (in which case such
Investor will provide the Company with reasonable evidence of such Investor’s compliance therewith)
or (iii) pursuant to a written opinion of legal counsel reasonably satisfactory to the Company and
addressed to the Company to the effect that registration under Section 5 of the Securities Act is
not required in connection with the proposed transfer; whereupon the holder of such securities
shall be entitled to transfer such securities.
(b)
Except in the event that paragraph (c) below applies, the Company shall: (i) if deemed
necessary by the Company, prepare and file from time to time with the SEC a post-effective
amendment to the Registration Statements or a supplement to the related Prospectus or a supplement
or amendment to any document incorporated therein by reference or file any other required document
so that such Registration Statement will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the statements therein
not misleading, and so that, as thereafter delivered to purchasers of the Registered Securities
being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading; (ii) upon
request by any Investor, provide such Investor copies of any documents filed pursuant to Section
7.2(b)(i); and (iii) inform each Investor that the Company has complied with its obligations in
Section 7.2(b)(i) (or that, if the Company has filed a post-effective amendment to a Registration
Statement which has not yet been declared effective, the Company will notify the Investors to that
effect, will use its commercially reasonable efforts to secure the effectiveness of such
post-effective amendment as promptly as possible and will promptly notify the Investors pursuant to
Section 7.2(b)(i) hereof when the amendment has become effective).
(c)
Subject to paragraph (d) below, in the event of: (i) any request by the SEC or any other
federal or state governmental authority during the period of effectiveness of any Registration
Statement for amendments or supplements to a Registration Statement or related Prospectus or for
additional information; (ii) the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose; (iii) the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption from qualification of
any of the Registered Securities for sale in any jurisdiction or the initiation of any proceeding
for such purpose; or (iv) any event or circumstance which necessitates the making of any changes in
any Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated
therein by reference, so that, in the case of such Registration Statement, it will not contain any
untrue statement of a material fact or any omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and that in the case of such
Prospectus, it will not contain any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or
18
necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading; then the Company shall deliver a certificate in writing to the Investors
(the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension
Notice, the Investors will refrain from selling any Registered Securities pursuant to the
Registration Statement (a “Suspension”) until the Investors’ receipt of copies of a supplemented or
amended Prospectus prepared and filed by the Company, or until it is advised in writing by the
Company that the current Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference in any such
Prospectus. In the event of any Suspension, the Company will use its reasonable efforts to cause
the use of a Prospectus so suspended to be resumed as soon as reasonably practicable within 20
business days after delivery of a Suspension Notice to the Investors. In addition to and without
limiting any other remedies (including, without limitation, at law or at equity) available to the
Investors, the Investors shall be entitled to specific performance in the event that the Company
fails to comply with the provisions of this Section 7.2(c).
(d)
Notwithstanding the foregoing paragraphs of this Section 7.2, the Investors shall not be
prohibited from selling Registered Securities under a Registration Statement as a result of
Suspensions on more than two (2) occasions of not more than twenty (20) days each in any twelve
(12) month period (“Permitted Suspension Period”) unless, in the good faith judgment of the
Company’s Board of Directors, upon advice of counsel, the sale of Registered Securities under such
Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a
violation of the Securities Act or the Exchange Act.
(e)
Provided that a Suspension is not then in effect, any Investor may sell Registered
Securities under the Registration Statements, provided that the Investor is selling its Registered
Securities in accordance with such Registration Statement, the Securities Act, applicable state
securities laws and, to the extent the exemption from prospectus delivery requirements in Rule 172
under the Securities Act is not available, satisfies the requirement of delivering a current
prospectus in connection with any proposed transfer or sale of the Securities (including the
Warrant Shares).
7.3 Information Available
.
So long as any Registration Statement is effective covering the
resale of Registered Securities owned by the Investors, the Company will furnish to the Investors:
(a)
as soon as practicable after it is available, one copy of (i) its Annual Report to
Stockholders (which Annual Report shall contain financial statements audited in accordance with
generally accepted accounting principles by a national firm of certified public accountants) and
(ii) if not included in substance in the Annual Report to Stockholders, its Annual Report on Form
10-K (the foregoing, in each case, excluding exhibits);
(b)
upon the reasonable request of any Investor, all exhibits excluded by the parenthetical to
subparagraph (a)(ii) of this Section 7.3 as filed with the SEC and all other information that is
made available to shareholders; and upon the reasonable request of any Investor, an adequate number
of copies of Prospectuses to supply to any other party requiring such Prospectuses; and the
Company, upon the reasonable request of any Investor, will meet with such Investor or a
representative thereof at the Company’s headquarters to discuss all
19
information relevant for disclosure in such Registration Statement covering the Registered
Securities and will otherwise cooperate with any Investor conducting an investigation for the
purpose of reducing or eliminating such Investor’s exposure to liability under the Securities Act,
including the reasonable production of information at the Company’s headquarters;
provided
, that
the Company shall not be required to disclose any confidential information to or meet at its
headquarters with any Investor until and unless such Investor shall have entered into a
confidentiality agreement in form and substance reasonably satisfactory to the Company with the
Company with respect thereto.
7.4 Delay in Filing or Effectiveness, or Suspension of a Registration Statement
. If: (a) a
Registration Statement is not filed by the Company with the Commission on or prior to its Filing
Date, (b) a Registration Statement is not declared effective by the Commission on or prior to its
Required Effective Date, or (c) a Suspension exceeds the Permitted Suspension Period (any such
failure or breach being referred to as an “Event,” and for purposes of clauses (a), (b) or (c) the
date on which such Event occurs, being referred to as “Event Date”), then on each such Event Date
and on each monthly anniversary of each such Event Date (if the applicable Event shall not have
been cured by such date) until the applicable Event is cured, the Company shall pay to each
Investor, as liquidated damages and not as a penalty, a cash payment equal to one and one-half
percent (1.5%) of the aggregate Purchase Price paid by such Investor to the Company with respect to
the Shares then held by such Investor which are not then registered under an effective Registration
Statement. The parties agree that the Company will not be liable for liquidated damages under this
Section 7.4 in respect of the Warrants or the Warrant Shares. The liquidated damages pursuant to
the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an
Event;
provided that
the maximum aggregate liquidated damages payable to an Investor under this
Section 7.4 shall not exceed twelve percent (12%) of the aggregate Purchase Price of the Shares
purchased by such Investor pursuant to this Agreement.
8.
Indemnification.
8.1
For the purpose of this Section 8:
(a)
the term “Selling Stockholder” shall include each Investor and any officer, director,
shareholder, partner, member, employee, agent, trustee or affiliate of each Investor and each
person, if any, who controls any Investor within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act;
(b)
the term “Registration Statement” shall include any final Prospectus, exhibit, supplement
or amendment included in or relating to the Registration Statements referred to in Section 7.1; and
(c)
the term “untrue statement” shall include any untrue statement or alleged untrue
statement, or any omission or alleged omission to state in any Registration Statement a material
fact required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
20
8.2
The Company agrees to indemnify and hold harmless each Selling Stockholder from and
against any losses, claims, damages, costs, expenses or liabilities to which such Selling
Stockholder may become subject (under the Securities Act or otherwise) insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon (i) any untrue statement of a material fact contained in any Registration Statement, or
(ii) any failure by the Company to fulfill any undertaking included in any Registration Statement,
or (iii) any breach of any of the representations, warranties, covenants, or agreements made by the
Company in this Agreement with respect to any of the transactions contemplated by this Agreement
and the Company will reimburse such Selling Stockholder for any reasonable legal or other expenses
reasonably incurred in investigating, defending or preparing to defend any such action, proceeding
or claim, provided, however, that the Company shall not be liable in any such case to the extent
that such loss, claim, damage or liability arises out of, or is based upon, an untrue statement
made in such Registration Statement in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Selling Stockholder specifically for use in
preparation of a Registration Statement or the failure of such Selling Stockholder to comply with
its covenants and agreements contained in Sections 5.1 through 5.8 or 7.2 hereof or any statement
or omission in any Prospectus that is corrected in any subsequent Prospectus that was delivered to
the such Selling Stockholder prior to the pertinent sale or sales by the Selling Stockholder.
8.3
Each Investor agrees to indemnify and hold harmless the Company (and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act, each officer of
the Company who signs the Registration Statements and each director of the Company) from and
against any losses, claims, damages or liabilities to which the Company (or any such officer,
director or controlling person) may become subject (under the Securities Act or otherwise), insofar
as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise
out of, or are based upon, (i) any failure to comply with the covenants and agreements contained in
Sections 5.1 through 5.8 or 7.2 hereof, or (ii) any untrue statement of a material fact contained
in any Registration Statement if such untrue statement was made in reliance upon and in conformity
with written information furnished by or on behalf of such Investor specifically for use in
preparation of such Registration Statement, and such Investor will reimburse the Company (or such
officer, director or controlling person), as the case may be, for any legal or other expenses
reasonably incurred in investigating, defending or preparing to defend any such action, proceeding
or claim.
8.4
Promptly after receipt by any indemnified person of a notice of a claim or the beginning
of any action in respect of which indemnity is to be sought against an indemnifying person pursuant
to this Section 8, such indemnified person shall notify the indemnifying person in writing of such
claim or of the commencement of such action, but the omission to so notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified party under this
Section 8 (except to the extent that such omission materially and adversely affects the
indemnifying party’s ability to defend such action) or from any liability otherwise than under this
Section 8. Subject to the provisions hereinafter stated, in case any such action shall be brought
against an indemnified person, the indemnifying person shall be entitled to participate therein,
and, to the extent that it shall elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, shall be entitled to
assume the defense thereof, with counsel reasonably
21
satisfactory to such indemnified person. After notice from the indemnifying person to such
indemnified person of its election to assume the defense thereof, such indemnifying person shall
not be liable to such indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof though such indemnified party shall have
the right to employ separate counsel at its own expense and participate in the defense thereof,
provided, however
, that if there exists or shall exist a conflict of interest that would make it
inappropriate, in the reasonable opinion of counsel to the indemnified person, for the same counsel
to represent both the indemnified person and such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such
indemnifying person;
provided, however
, that no indemnifying person shall be responsible for the
fees and expenses of more than one separate counsel (together with appropriate local counsel) for
all indemnified parties. In no event shall any indemnifying person be liable in respect of any
amounts paid in settlement of any action unless the indemnifying person shall have approved the
terms of such settlement; provided that such consent shall not be unreasonably withheld or delayed.
No indemnifying person shall, without the prior written consent of the indemnified person, effect
any settlement of any pending or threatened proceeding in respect of which any indemnified person
is or could have been a party and indemnification could have been sought hereunder by such
indemnified person, unless such settlement includes an unconditional release of such indemnified
person from all liability on claims that are the subject matter of such proceeding.
8.5
If the indemnification provided for in this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (b) or (c) above in respect of any losses,
claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the Company on the one hand and
the Investors on the other in connection with the statements or omissions or other matters which
resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative fault shall be determined by reference
to, among other things, in the case of an untrue statement, whether the untrue statement relates to
information supplied by the Company on the one hand or an Investor on the other and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such untrue
statement. The Company and the Investors agree that it would not be just and equitable if
contribution pursuant to this subsection (e) were determined by pro rata allocation (even if the
Investors were treated as one entity for such purpose) or by any other method of allocation which
does not take into account the equitable considerations referred to above in this subsection (e).
The amount paid or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), no Investor shall be required to contribute any amount in excess
of the amount by which the net amount received by such Investor from the sale of the Shares and
Warrant Shares to which such loss relates exceeds the amount of any damages which such Investor has
otherwise been required to pay by reason of such untrue statement. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of
such fraudulent misrepresentation. The Investors’ obligations in this subsection (e) to
contribute are several in proportion to their sales of Shares and Warrant Shares to which such loss
relates and not joint.
22
8.6
The parties to this Agreement hereby acknowledge that they are sophisticated business
persons who were represented by counsel during the negotiations regarding the provisions hereof
including, without limitation, the provisions of this Section 8, and are fully informed regarding
said provisions. They further acknowledge that the provisions of this Section 8 fairly allocate
the risks in light of the ability of the parties to investigate the Company and its business in
order to assure that adequate disclosure is made in the Registration Statements as required by the
Act and the Exchange Act. The parties are advised that federal or state public policy as
interpreted by the courts in certain jurisdictions may be contrary to certain of the provisions of
this Section 8, and the parties hereto hereby expressly waive and relinquish any right or ability
to assert such public policy as a defense to a claim under this Section 8 and further agree not to
attempt to assert any such defense.
9. Termination of Covenants and Obligations
.
The covenants imposed by Section 5 or Section 7
upon the transferability of the Registered Securities shall cease and terminate as to any
particular number of the Registered Securities when such Registered Securities shall have been
effectively registered under the Securities Act and sold or otherwise disposed of in accordance
with the intended method of disposition set forth in the Registration Statements covering such
Registered Securities or at such time as an opinion of counsel satisfactory to the Company shall
have been rendered to the effect that such conditions are not necessary in order to comply with the
Securities Act.
10. Notices.
All notices, requests, consents and other communications hereunder shall be in
writing, shall be mailed (A) if within domestic United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage prepaid, or by
facsimile, or (B) if delivered from outside the United States, by International Federal Express or
facsimile, and shall be deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by nationally recognized overnight
carrier, one (1) business day after so mailed, (iii) if delivered by International Federal Express,
two (2) business days after so mailed, (iv) if delivered by facsimile, upon electric confirmation
of receipt and shall be delivered as addressed as follows:
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(a)
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if to the Company, to:
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BioCryst Pharmaceuticals, Inc.
2190 Parkway Lake Drive
Birmingham, AL 35244
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Attn: Chief Executive Officer
Phone: (205) 444-4600
Telecopy: (205) 444-4640
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23
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(b)
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with a copy mailed to:
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Holme Roberts & Owen LLP
1700 Lincoln Street, Suite 4100
Denver, CO 80203
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Attn: Richard R. Plumridge, Esq.
Phone: (303) 861-7000
Telecopy: (303) 866-0200
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(c)
if to the Investors, at their addresses on the signature page hereto, or at such other
address or addresses as may have been furnished to the Company in writing.
11. Changes.
This Agreement may not be modified or amended except pursuant to an instrument
in writing signed by the Company and the Required Investors.
12. Headings.
The headings of the various sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed to be part of this Agreement.
13. Severability.
In case any provision contained in this Agreement should be invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired thereby.
14. Independent Nature of Investors’ Obligations and Rights
. The obligations of each Investor
under this Agreement are several and not joint with the obligations of any other Investor, and no
Investor shall be responsible in any way for the performance of the obligations of any other
Investor under this Agreement. Nothing contained herein and no action taken by any Investor
pursuant thereto, shall be deemed to constitute the Investors as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the Investors are in any
way acting in concert or as a group, or are deemed affiliates (as such term is defined under the
Exchange Act) with respect to such obligations or the transactions contemplated by this Agreement.
Each Investor shall be entitled to independently protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall not be necessary for any other
Investor to be joined as an additional party in any proceeding for such purpose.
15. Governing Law.
This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of New York, without giving effect to the principles of conflicts of
law.
16. Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall constitute an original, but all of which, when taken together, shall constitute but one
instrument, and shall become effective when one or more counterparts have been signed by each party
hereto and delivered to the other parties.
17. Confidential Disclosure Agreement.
Notwithstanding any provision of this Agreement to the
contrary, any confidential disclosure agreement previously executed by the Company and the
Investors in connection with the transactions contemplated by this Agreement
shall remain in full force and effect in accordance with its terms following the execution of
this Agreement and the consummation of the transactions contemplated hereby.
24
18. Third Party Beneficiary.
Nothing in this Agreement shall create or be deemed to create any
rights in any person or entity not a party to this Agreement.
19. Entire Agreement.
This Agreement constitutes the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes all prior oral or written
agreements, arrangements and understandings with respect thereto. No representation, promise,
inducement, statement or intention has been made by any party hereto that is not embodied herein,
and no party shall be bound by or liable for any alleged representation, promise, inducement or
statement not so set forth herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
25
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered
by their duly authorized representatives as of the day and year first above written.
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BIOCRYST PHARMACEUTICALS, INC.
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By:
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/s/ Jon P. Stonehouse
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Title:
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President and Chief Executive Officer
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[Signature page to BioCryst Stock & Warrant Purchase Agreement]
INVESTOR:
Print or Type:
Name of Investor (Individual or Institution):
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Caduceus Private Investments II, L.P.
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Name of Individual representing Investor (if an Institution):
Title of Individual representing Investor (if an Institution):
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Chief Financial Officer of GP
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Signature by Individual Investor or Individual Representing Investor:
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Address:
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c/o OrbiMed Advisors
767 3
rd
Avenue, 30
th
Floor
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New York, NY 10017
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Telephone:
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(212) 739-6400
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Telecopier:
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(212) 739-6444
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e-mail:
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compliance@orbimed.com
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Warrants to be
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Price Per Share in
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Shares to be Purchased
|
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Purchased
|
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Dollars
|
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Aggregate Price
|
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559,676
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212,677
|
|
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$
|
7.80
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$
|
4,392,057.43
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[Signature page to BioCryst Stock & Warrant Purchase Agreement]
INVESTOR:
Print or Type:
Name of Investor (Individual or Institution):
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Caduceus Private Investments II (QP), L.P.
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Name of Individual representing Investor (if an Institution):
Title of Individual representing Investor (if an Institution):
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Chief Financial Officer of GP
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Signature by Individual Investor or Individual Representing Investor:
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Address:
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c/o OrbiMed Advisors
767 3
rd
Avenue, 30
th
Floor
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New York, NY 10017
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Telephone:
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(212) 739-6400
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Telecopier:
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(212) 739-6444
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e-mail:
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compliance@orbimed.com
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Warrants to be
|
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Price Per Share in
|
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Shares to bePurchased
|
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Purchased
|
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Dollars
|
|
Aggregate Price
|
|
209,555
|
|
|
79,631
|
|
|
$
|
7.80
|
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$
|
1,644,482.88
|
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[Signature page to BioCryst Stock & Warrant Purchase Agreement]
INVESTOR:
Print or Type:
Name of Investor (Individual or Institution):
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TPG Biotechnology Partners, L.P.
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Name of Individual representing Investor (if an Institution):
Title of Individual representing Investor (if an Institution):
Signature by Individual Investor or Individual Representing Investor:
TPG Biotechnology Partners, L.P.
By its General Partner,
TPG Biotechnology Genpar, L.P.
By its General Partner,
TPG Biotech Advisors, LLC.
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Address:
|
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301 Commerce, Suite 3300
Fort Worth, TX 76102
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Telephone:
|
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817-871-4069
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Telecopier:
|
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817-850-4069
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e-mail:
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jekberg@tpg.com
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Warrants to be
|
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Price Per Share in
|
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Shares to bePurchased
|
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Purchased
|
|
Dollars
|
|
Aggregate Price
|
|
641,026
|
|
|
243,590
|
|
|
$
|
7.80
|
|
|
$
|
5,030,451.55
|
|
[Signature page to BioCryst Stock & Warrant Purchase Agreement]
INVESTOR:
Print or Type:
Name of Investor (Individual or Institution):
Name of Individual representing Investor (if an Institution):
|
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|
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/s/ William W. Featheringill
William W. Featheringill, Chairman
|
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/s/ W. Sanders Pitman
W. Sanders Pitman, President and Chief Executive Officer
|
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Address:
|
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One Metroplex Drive, Suite 500
Birmingham, AL 35209
|
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Telephone:
|
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205-871-1031
|
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|
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205-879-2722
|
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Telecopier:
|
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205-879-5121
|
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Email:
|
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lindam@ehsmed.com
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Warrants to be
|
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Price Per Share in
|
|
|
|
Shares to be Purchased
|
|
Purchased
|
|
Dollars
|
|
Aggregate Price
|
|
831,538
|
|
|
315,985
|
|
|
$
|
7.80
|
|
|
$
|
6,525,494.53
|
|
[Signature page to BioCryst Stock & Warrant Purchase Agreement]
INVESTOR:
Print or Type:
Name of Investor (Individual or Institution):
Name of Individual representing Investor (if an Institution):
Title of Individual representing Investor (if an Institution):
|
|
|
|
Managing Partner, Stephens Investment Management LLC
General Partner, Nanocap Fund, L.P.
|
|
|
Signature by Individual Investor or Individual Representing Investor:
|
|
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|
Address:
|
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Stephens Investment Management
|
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|
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One Sansome Street, Suite 2900
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San Francisco, CA 94104
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Telephone:
|
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(415) 835-3819
|
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Telecopier:
|
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(415) 835-3827
|
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e-mail:
|
|
bart@stephensim.com, mary@stephensim.com
|
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Warrants to be
|
|
Price Per Share in
|
|
|
|
Shares to bePurchased
|
|
Purchased
|
|
Dollars
|
|
Aggregate Price
|
|
155,641
|
|
|
59,143
|
|
|
$
|
7.80
|
|
|
$
|
1,221,392.68
|
|
[Signature page to BioCryst Stock & Warrant Purchase Agreement]
INVESTOR:
Print or Type:
Name of Investor (Individual or Institution):
|
|
|
|
Nanocap Qualified Fund, L.P.
|
|
|
Name of Individual representing Investor (if an Institution):
Title of Individual representing Investor (if an Institution):
|
|
|
|
Managing Partner, Stephens Investment Management LLC
General Partner, Nanocap Qualified Fund, L.P.
|
|
|
Signature by Individual Investor or Individual Representing Investor:
|
|
|
|
|
|
|
Address:
|
|
Stephens Investment Management
One Sansome Street, Suite 2900
|
|
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|
|
San Francisco, CA 94104
|
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Telephone:
|
|
(415) 835-3819
|
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Telecopier:
|
|
(415) 835-3827
|
|
|
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|
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|
|
|
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|
|
e-mail:
|
|
bart@stephensim.com, mary@stephensim.com
|
|
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|
|
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|
|
Warrants to be
|
|
Price Per Share in
|
|
|
|
Shares to be Purchased
|
|
Purchased
|
|
Dollars
|
|
Aggregate Price
|
|
226,923
|
|
|
86,231
|
|
|
$
|
7.80
|
|
|
$
|
1,780,778.28
|
|
[Signature page to BioCryst Stock & Warrant Purchase Agreement]
INVESTOR:
Print or Type:
Name of Investor (Individual or Institution):
Name of Individual representing Investor (if an Institution):
Title of Individual representing Investor (if an Institution):
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Managing Partner, Stephens Investment Management LLC
General Partner, Orphan Fund, L.P.
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Signature by Individual Investor or Individual Representing Investor:
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Address:
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Stephens Investment Management
One Sansome Street, Suite 2900
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San Francisco, CA 94104
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Telephone:
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(415) 835-3819
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Telecopier:
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(415) 835-3827
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e-mail:
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bart@stephensim.com, mary@stephensim.com
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Warrants to be
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Price Per Share in
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Shares to be Purchased
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Purchased
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Dollars
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Aggregate Price
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242,436
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92,126
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$
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7.80
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$
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1,902,516.55
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[Signature page to BioCryst Stock & Warrant Purchase Agreement]
INVESTOR:
Print or Type:
Name of Investor (Individual or Institution):
Name of Individual representing Investor (if an Institution):
Title of Individual representing Investor (if an Institution):
Signature by Individual Investor or Individual Representing Investor:
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Address:
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2750 Sand Hill Road
Menlo Park, CA 94025
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Telephone:
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650-233-2750
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Telecopier:
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650-233-0323
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e-mail:
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bbyers@kpcb.com
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Warrants to be
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Price Per Share in
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Shares to be Purchased
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Purchased
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Dollars
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Aggregate Price
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1,282,051
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487,179
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$
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7.80
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$
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10,060,895.18
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[Signature page to BioCryst Stock & Warrant Purchase Agreement]
INVESTOR:
Print or Type:
Name of Investor (Individual or Institution):
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Baker Biotech Fund I, L.P.
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Name of Individual representing Investor (if an Institution):
Title of Individual representing Investor (if an Institution):
Signature by Individual Investor or Individual Representing Investor:
Baker Biotech Fund I, L.P.
By: Baker Biotech Capital, L.P. (general partner)
By: Baker Biotech Capital (GP), LLC (general partner)
By: Julian Baker, Managing Member
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Address:
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667 Madison Ave., 17
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Floor
New York, NY 10065
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Telephone:
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212-339-5600
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Telecopier:
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212-339-5688
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e-mail:
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Warrants to be
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Price Per Share in
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Shares to be Purchased
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Purchased
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Dollars
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Aggregate Price
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1,117,700
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424,726
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$
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7.80
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$
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8,771,150.75
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[Signature page to BioCryst Stock & Warrant Purchase Agreement]
INVESTOR:
Print or Type:
Name of Investor (Individual or Institution):
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Baker Bros. Investments II, L.P.
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Name of Individual representing Investor (if an Institution):
Title of Individual representing Investor (if an Institution):
Signature by Individual Investor or Individual Representing Investor:
Baker Bros. Investments II, L.P.
By: Baker Bros. Capital, L.P. (general partner)
By: Baker Bros. Capital (GP), LLC (general partner)
By: Julian Baker, Managing Member
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Address:
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667 Madison Ave., 17
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Floor
New York, NY 10065
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Telephone:
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212-339-5600
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Telecopier:
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212-339-5688
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e-mail:
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Warrants to be
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Price Per Share in
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Shares to be Purchased
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Purchased
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Dollars
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Aggregate Price
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7,512
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2,854
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$
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7.80
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$
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58,950.35
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[Signature page to BioCryst Stock & Warrant Purchase Agreement]
INVESTOR:
Print or Type:
Name of Investor (Individual or Institution):
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Baker Brothers Life Sciences, L.P.
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Name of Individual representing Investor (if an Institution):
Title of Individual representing Investor (if an Institution):
Signature by Individual Investor or Individual Representing Investor:
Baker Brothers Life Sciences, L.P.
By: Baker Brothers Life Sciences Capital, L.P. (general partner)
By: Baker Brothers Life Sciences Capital (GP), LLC (general partner)
By: Julian Baker, Managing Member
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Address:
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667 Madison Ave., 17
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Floor
New York, NY 10065
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Telephone:
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212-339-5600
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Telecopier:
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212-339-5688
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e-mail:
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Warrants to be
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Price Per Share in
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Shares to be Purchased
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Purchased
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Dollars
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Aggregate Price
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2,947,743
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1,120,142
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$
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7.80
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$
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23,132,413.15
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[Signature page to BioCryst Stock & Warrant Purchase Agreement]
INVESTOR:
Print or Type:
Name of Investor (Individual or Institution):
Name of Individual representing Investor (if an Institution):
Title of Individual representing Investor (if an Institution):
Signature by Individual Investor or Individual Representing Investor:
14159, L.P.
By: 14159 Capital, L.P. (general partner)
By: 14159 Capital (GP), LLC (general partner)
By: Julian Baker, Managing Member
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Address:
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667 Madison Ave., 17
th
Floor
New York, NY 10065
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Telephone:
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212-339-5600
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Telecopier:
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212-339-5688
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e-mail:
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Warrants to be
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Price Per Share in
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Shares to be Purchased
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Purchased
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Dollars
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Aggregate Price
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93,712
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35,611
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$
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7.80
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$
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735,404.98
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[Signature page to BioCryst Stock & Warrant Purchase Agreement]
Exhibit 4.2
FORM OF WARRANT
NEITHER THIS WARRANT NOR THE COMMON STOCK OF BIOCRYST PHARMACEUTICALS, INC. FOR WHICH THIS WARRANT
IS EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR
UNDER THE SECURITIES LAWS OF ANY STATE AND ACCORDINGLY, MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED
OR HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH
RESPECT THERETO UNDER THE ACT UNLESS SOLD PURSUANT TO RULE 144 OF THE ACT OR UNLESS SUCH SALE,
PLEDGE, HYPOTHECATION OR TRANSFER IS OTHERWISE EXEMPT FROM REGISTRATION AND ANY APPLICABLE STATE
SECURITIES LAWS. THE ISSUER OF THIS WARRANT MAY REQUEST A WRITTEN OPINION OF COUNSEL, REASONABLY
SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED IN CONNECTION WITH
SUCH SALE OR OTHER TRANSFER.
BIOCRYST PHARMACEUTICALS, INC.
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
THIS WARRANT MAY NOT BE EXERCISED
AFTER THE EXPIRATION DATE, IN NO EVENT LATER THAN 5:00 P.M.,
NEW YORK CITY TIME, ON AUGUST [__], 2012
THIS CERTIFIES THAT, for value received, or registered assigns
(the “Registered Holder”) is entitled to, upon the terms and conditions hereinafter set forth,
subscribe for and purchase at the Exercise Price (defined below) from BioCryst Pharmaceuticals,
Inc., a Delaware corporation (the “Company”), fully paid and nonassessable shares
(the “Warrant Shares”) of Common Stock, $0.01 par value (the “Common Stock”), of the Company, at
the initial exercise price of $10.25 per Warrant Share (the “Exercise Price”) at any time during
the period beginning after the date hereof and ending on the Expiration Date (as hereinafter
defined) (the “Exercise Period”), by surrendering this Warrant, with the Form of Election to
Purchase duly executed at the principal office of the Company and by paying in full the Exercise
Price, plus transfer taxes, if any. The term “Warrant” as used herein shall include this Warrant,
and any warrant delivered in substitution or exchange for this Warrant as provided herein. Payment
of the Exercise Price shall be made in United States currency, by federal wire transfer of
immediately available funds, or by certified check or money order payable to the order of the
Company.
This Warrant has been issued pursuant to a private placement of Common Stock and Warrants.
1.
Purchase Agreement and Registration Rights
. This Warrant is issued under and in
accordance with the Stock and Warrant Purchase Agreement dated as of August 6, 2007 (the “Purchase
Agreement”) between the Company and the Registered Holder and is
subject to the terms and provisions contained in the Purchase Agreement. Section 7 of the
Purchase Agreement governs the registration rights of the Warrant Shares.
2.
Definitions
. Unless otherwise defined herein, the capitalized terms used herein
shall have the meanings assigned to such terms in the Purchase Agreement.
3.
Issuance of Warrant Shares
. As soon as practicable after the date of exercise of
this Warrant the Company shall issue, or cause the transfer agent for the Common Stock, if any, to
issue a certificate or certificates for the number of full Warrant Shares to which the Registered
Holder is entitled, registered in accordance with the instructions set forth in the Form of
Election to Purchase;
provided, however
, that such certificate or certificates shall be delivered
within no later than three (3) business days after the Company’s receipt of the Purchaser’s
surrender of this Warrant, including, without limitation, a properly completed Form of Election To
Purchase. All Warrant Shares shall be validly authorized and issued, fully paid and nonassessable,
and free from all taxes, liens and charges created by the Company in respect of the issue thereof.
Each person in whose name any such certificate for Warrant Shares is issued shall for all purposes
be deemed to have become the holder of record of the Warrant Shares represented thereby on the date
of exercise of this Warrant resulting in the issuance of such Warrant Shares, irrespective of the
date of issuance or delivery of such certificate for such Warrant Shares.
4.
Partial Exercise
. If this Warrant is exercised in part only, the Company shall,
upon surrender of this Warrant, execute and deliver, within 10 days of the date of exercise, a new
Warrant evidencing the rights of the Registered Holder, or such other person as shall be designated
in the Form of Election to Purchase, to purchase the balance of the Warrant Shares purchasable
hereunder. In no event shall this Warrant be exercised for a fractional Warrant Share, and the
Company shall distribute no Warrant exercisable for a fractional Warrant Share. Fractional Warrant
shares shall be treated as provided for herein.
5.
Available Authorized Shares
. The Company shall at all times reserve and keep
available for issuance upon the exercise of this Warrant a number of its authorized but unissued
shares of Common Stock that will be sufficient to permit the exercise in full of this Warrant.
6.
Adjustments
. Subject to the provisions hereof, the Exercise Price and the number
of Warrant Shares in effect from time to time shall be subject to adjustment, as follows:
(a) In case the Company shall at any time after the date hereof (i) declare a dividend on the
outstanding Common Stock payable in shares of its capital stock, (ii) subdivide the outstanding
Common Stock, (iii) combine the outstanding Common Stock into a smaller number of shares, or (iv)
issue any shares of its capital stock by reorganization or reclassification of the Common Stock
(including any such reorganization or reclassification in connection with a consolidation or merger
in which the Company is the continuing corporation), then, in each case, the Exercise Price, and
the number of Warrant Shares issuable upon exercise of this Warrant in effect at the time of the
record date for such dividend or of the effective date of such subdivision, combination, or
reorganization or reclassification, shall be proportionately adjusted so that the Registered Holder
after such time shall be entitled to receive the aggregate number and kind of
shares which, if such Warrants had been exercised immediately prior to such time, the
Registered Holder would have owned upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination or reclassification. Such adjustment shall be made
successively whenever any event listed above shall occur.
B-2
(b) (i) In case the Company shall issue or fix a record date for the issuance to all holders
of Common Stock of rights, options, or warrants to subscribe for or purchase Common Stock (or
securities convertible into or exchangeable for Common Stock) at a price per share (or having a
conversion or exchange price per share, if a security convertible into or exchangeable for Common
Stock) less than the Current Market Price per share of Common Stock on such record date, then, in
each case, the Exercise Price shall be adjusted by multiplying the Exercise Price in effect
immediately prior to such record date by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding on such record date plus the number of shares of Common Stock
which the aggregate offering price of the total number of shares of Common Stock so to be offered
(or the aggregate initial conversion or exchange price of the convertible or exchangeable
securities so to be offered) would purchase at such Current Market Price and the denominator of
which shall be the number of shares of Common Stock outstanding on such record date plus the number
of additional shares of Common Stock so issued or to be offered for subscription or purchase (or
into which the convertible or exchangeable securities so to be offered are initially convertible or
exchangeable). Such adjustment shall become effective at the close of business on such record
date;
provided, however
, that, to the extent the shares of Common Stock (or securities convertible
into or exchangeable for shares of Common Stock) are not delivered, the Exercise Price shall be
readjusted after the expiration of such rights, options, or warrants (but only with respect to the
exercise of this Warrant after such expiration), to the Exercise Price which would then be in
effect had the adjustments made upon the issuance of such rights, options, or warrants been made
upon the basis of delivery of only the number of shares of Common Stock (or securities convertible
into or exchangeable for shares of Common Stock) actually issued and the Exercise Price shall also
be adjusted for any subsequent adjustment or other change to the number of shares of Common Stock
issuable upon exercise, exchange or conversion of such rights, options, warrants or other
securities.
(ii) Notwithstanding anything to the contrary contained herein, no adjustment shall be made
to the Exercise Price until any condition to the vesting (a “Vesting Condition”) of such rights,
options or warrants (“Issued Rights”) shall be fulfilled or satisfied (and then only with respect
to the portion thereof which shall have vested). If this Warrant is exercised in whole or in part
after any such Issued Rights have been issued, but prior to all Vesting Conditions to such Issued
Rights being met, each Warrant Share shall include the same right as one share of Common Stock to
such Issued Rights upon all Vesting Conditions being met.
(iii) In case any subscription price may be paid in a consideration part or all of which
shall be in a form other than cash, the value of such consideration shall be as determined in good
faith by the Board of Directors of the Company, whose determination shall be conclusive absent
manifest error. Shares of Common Stock owned by or held for the account of the Company or any
majority-owned subsidiary shall not be deemed outstanding for the purpose of any such computation.
If any event occurs of the type contemplated by the provisions of this paragraph but not expressly
provided for by such provisions (including, without
limitation, the granting of stock appreciation rights, phantom stock rights or other rights
with equity features), then the Board of Directors shall make an appropriate adjustment in the
Exercise Price so as to equitably protect the rights of holders of this Warrant.
B-3
(c) In case the Company shall distribute to all holders of Common Stock (including any such
distribution made to the stockholders of the Company in connection with a consolidation or merger
in which the Company is the continuing corporation) evidences of its indebtedness, cash (other than
any cash dividend which, together with any cash dividends paid within the twelve (12) months prior
to the record date for such distribution, does not exceed 5% of the Current Market Price at the
record date for such distribution), assets or rights to acquire such assets (other than
distributions and dividends payable in shares of Common Stock), or rights, options, or warrants to
subscribe for or purchase Common Stock, or securities convertible into or exchangeable for shares
of Common Stock (excluding those with respect to the issuance of which an adjustment of the
Exercise Price is provided pursuant to the foregoing paragraph), then, in each case, the Exercise
Price shall be adjusted by multiplying the Exercise Price in effect immediately prior to the record
date for the determination of stockholders entitled to receive such distribution by a fraction, the
numerator of which shall be the Current Market Price per share of Common Stock on such record date,
less the fair market value (as determined in good faith by the Board of Directors of the Company,
whose determination shall be conclusive absent manifest error) of the portion of the evidences of
indebtedness or assets so to be distributed, or of such rights, options, or warrants or convertible
or exchangeable securities, or the amount of such cash, applicable to one share, and the
denominator of which shall be such Current Market Price per share of Common Stock. Such adjustment
shall become effective on the date of such distribution.
(d) No adjustment in the Exercise Price shall be required if such adjustment is less than
$0.01;
provided, however
, that any adjustments which by reason of this Warrant are not required to
be made shall be carried forward and taken into account in any subsequent adjustment. All
calculations under this Warrant shall be made to the nearest cent or to the nearest one thousandth
of a share, as the case may be.
(e) In any case in which this Warrant shall require that an adjustment in the Exercise Price
be made effective as of a record date for a specified event, the Company may elect to defer, until
the occurrence of such event, issuing to the Registered Holder of, if the Registered Holder has
exercised this Warrant after such record date, the shares of Common Stock, if any, issuable upon
such exercise over and above the shares of Common Stock, if any, issuable upon such exercise on the
basis of the Exercise Price in effect prior to such adjustment;
provided, however
, that the Company
shall deliver to the exercising Registered Holder a due bill or other appropriate instrument
evidencing the Registered Holder’s right to receive such additional shares upon the occurrence of
the event requiring such adjustment.
(f) Upon each adjustment of the Exercise Price as a result of the calculations made above this
Warrant shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that
number of shares (calculated to the nearest thousandth) obtained by dividing (A) the product
obtained by multiplying the number of shares purchasable upon exercise of this Warrant prior to
adjustment of the number of shares by the Exercise Price in effect prior to adjustment of the
Exercise Price by (B) the Exercise Price in effect after such adjustment of the Exercise Price.
B-4
(g) (i) In case of any capital reorganization, other than in the cases referred to above, or
the consolidation or merger of the Company with or into another corporation (other than a merger or
consolidation in which the Company is the continuing corporation and which does not result in any
reclassification of the outstanding shares of Common Stock or the conversion of such outstanding
shares of Common Stock into shares of other stock or other securities or property), or the sale of
the property of the Company as an entirety or substantially as an entirety (collectively such
actions being hereinafter referred to as “Reorganizations”), the Registered Holder shall have the
right thereafter to receive upon exercise of this Warrant solely the kind and amount of shares of
stock and other securities, property, cash, or any combination thereof receivable upon such
Reorganization by a holder of the number of shares of Common Stock for which this Warrant might
have been exercised immediately prior to such Reorganization and the term “Warrant Shares” shall
thereafter include, without limitation, such stock and other securities. Thereafter, appropriate
provision shall be as nearly equivalent as practicable to the adjustments in this Warrant. The
Company or the successor corporation, as the case may be, shall execute and deliver to the
Registered Holder a supplemental agreement so providing, and the terms of any agreement pursuant to
which any such consolidation or merger is effected shall include terms requiring the Company or the
successor corporation to comply with the provisions of this subsection 6(g)(i). The above
provisions of this section 6(g)(i) shall similarly apply to successive Reorganizations.
(ii) Notwithstanding the foregoing, (1) in the event of a Fundamental Transaction (as defined
below), in which the consideration consists of substantially all cash, the Company (or the
successor entity) shall purchase this Warrant from the Holder by paying to the Holder, on the
effective date of the Fundamental Transaction, cash in an amount equal to the Black Scholes Value
(as defined below) of the remaining unexercised portion of this Warrant on the effective date of
such Fundamental Transaction or (2) in the event of a Fundamental Transaction in which the
consideration consists of substantially all securities of a private company, the Company (or the
successor entity), in its sole discretion, may (x) purchase this Warrant from the Holder by paying
to the Holder, on the effective date of the Fundamental Transaction, cash in an amount equal to the
Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the
date of such Reorganization or (y) comply with the provisions of Section 6(g)(i). For purposes
hereof, a “Fundamental Transaction” means a Reorganization, other than a merger or consolidation in
which the Company is the continuing corporation and which does not result in any reclassification
of the outstanding shares of Common Stock or the conversion of such outstanding shares of Common
Stock into shares of other stock or other securities or property; and “Black Scholes Value” means
the value of this Warrant based on the Black and Scholes Option Pricing Model obtained from the
“OV” function on Bloomberg Financial Markets (“Bloomberg”) determined as of the day immediately
following the public announcement of the applicable Fundamental Transaction and reflecting (i) a
risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining
term of this Warrant as of the effective date of the Fundamental Transaction and (ii) an expected
volatility equal to the greater of 50% and the 100 day volatility obtained from the HVT function on
Bloomberg.
(h) In case of any reclassification or change of the shares of Common Stock issuable upon
exercise of this Warrant other than in the cases referred to above, including, without limitation,
in any reorganization (other than a change in par value or from no par value to a specified par
value, or as a result of a subdivision or combination, but including any change
B-5
in the shares into two or more classes or series of shares), the Registered Holder of this Warrant
shall have the right thereafter to receive upon exercise of this Warrant solely the kind and amount
of shares of stock and other securities, property, cash, or any combination thereof receivable upon
such reclassification or change by a Registered Holder of the number of shares of Common Stock for
which this Warrant might have been exercised immediately prior to such reclassification or change
and the term “Warrant Shares” shall thereafter include, without limitation, such stock and other
securities. Thereafter, appropriate provision shall be as nearly equivalent as practicable to the
adjustments in this Warrant. The above provisions of this paragraph shall similarly apply to
successive reclassifications and changes of shares of Common Stock.
(i) Whenever the Exercise Price is adjusted as provided in this Warrant, the Company will
promptly obtain a certificate of the chief financial officer of the Company setting forth the
Exercise Price as so adjusted and a brief statement of the facts accounting for such adjustment.
Whenever any adjustment is made pursuant to this Warrant, the Company shall cause notice of such
adjustment to be mailed to the Registered Holder within fifteen (15) days thereafter, such notice
to include in reasonable detail (i) the events precipitating the adjustment, (ii) the computation
of any adjustments, and (iii) the Exercise Price, the number of shares or the securities or other
property purchasable upon exercise of this Warrant after giving effect to such adjustment.
(j) In no event shall the Exercise Price be adjusted below the par value per share of the
Common Stock.
(k) Irrespective of any adjustments pursuant to this Warrant, any Warrant theretofore or
thereafter issued need not be amended or replaced, but certificates thereafter issued shall bear an
appropriate legend or other notice of any adjustments.
(l) The Company shall not be required upon the exercise of any Warrant to issue fractional
shares of Common Stock which may result from adjustments in accordance with this Warrant to the
Exercise Price or number of shares of Common Stock purchasable under each Warrant. If more than
one Warrant is exercised at one time by the same Registered Holder, the number of full shares of
Common Stock which shall be deliverable shall be computed based on the number of shares deliverable
in exchange for the aggregate number of Warrants exercised. With respect to any fractional Warrant
Share called for upon the exercise this Warrant, the Company shall pay a cash adjustment in respect
of such fractional Warrant Share in an amount equal to the same fraction of the Current Market
Price of a share of Common Stock calculated in accordance with this Warrant.
(m) Directors of the Company who are affiliates of a Registered Holder shall not participate
in any decisions of the Board of Directors regarding appropriate adjustments under this Warrant,
unless required by applicable law.
7.
Expiration Date
. This Warrant may not be exercised after the earliest to occur
(such earliest date, the “Expiration Date”) of (i) 5:00 p.m., New York City time, on August
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2012; or (ii) the purchase of the Warrant from the Holder
pursuant to a Fundamental Transaction as defined in subsection 6(g)(ii) above.
B-6
8.
No Rights as Stockholder
. This Warrant shall not entitle the Registered Holder to
any of the rights of a stockholder of the Company, including, without limitation, the right to
vote, to receive dividends and other distributions, to receive any notice of, or to attend,
meetings of stockholders or any other proceedings of the Company.
9.
Mutilation, Loss, Theft or Destruction of Warrant
. If this Warrant shall be
mutilated, lost, stolen or destroyed, the Company in its discretion may execute and deliver, in
exchange and substitution for and upon cancellation of this Warrant, or in lieu of or in
substitution for a lost, stolen or destroyed Warrant and upon receipt of an affidavit of the
Registered Holder or other evidence reasonably satisfactory to the Company of the loss, theft or
destruction of such Warrant and an indemnification of loss by the Registered Holder in favor of the
Company, a new Warrant for the number of Warrant Shares represented by the Warrant so mutilated,
lost, stolen or destroyed but only upon receipt of evidence of such loss, theft or destruction of
such Warrant Certificate, and of the ownership thereof, and indemnity, if requested, all reasonably
satisfactory to the Company. Applicants for such substitute Warrant shall also comply with such
other reasonable regulations and pay such other reasonable charges incidental thereto as the
Company may prescribe. Any such new Warrant shall constitute an original contractual obligation of
the Company, whether or not the allegedly lost, stolen, mutilated or destroyed Warrant shall be at
any time enforceable by anyone.
10.
Representations of Registered Holders
.
(a) The Registered Holder agrees not to make any disposition of all or any part of the Warrant
or Common Stock in any event unless and until:
(i) The Company shall have received a letter secured by the Registered Holder from the
Securities and Exchange Commission stating that no action will be recommended to the Commission
with respect to the proposed disposition;
(ii) There is then in effect a registration statement under the Act covering such proposed
disposition and such disposition is made in accordance with said registration statement; or
(iii) The Registered Holder shall have notified the Company of the proposed disposition and
shall have furnished the Company with a statement briefly describing the circumstances surrounding
the proposed disposition, and if reasonably requested by the Company, the Registered Holder shall
have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, for
the Registered Holder to the effect that such disposition will not require registration of such
Warrant or Common Stock under the Act or any applicable state securities laws; provided that such
statement will not be required if the disposition is permitted under Rule 144 of the Securities
Act.
(b) The Registered Holder understands and agrees that all certificates evidencing the Common
Stock to be issued to the Registered Holder may bear a legend in substantially the following form:
B-7
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “ACT”),
OR UNDER THE SECURITIES LAWS OF ANY STATE AND ACCORDINGLY, MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED, OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH
RESPECT THERETO UNDER THE ACT UNLESS SOLD PURSUANT TO RULE 144 OF THE
ACT OR UNLESS SUCH SALE, PLEDGE, HYPOTHECATION OR TRANSFER IS OTHERWISE
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS. THE ISSUER OF THESE SECURITIES MAY REQUEST A
WRITTEN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, TO
THE EFFECT THAT REGISTRATION IS NOT REQUIRED IN CONNECTION WITH SUCH
SALE OR OTHER TRANSFER.
11.
Split Up, Combination, Exchange or Transfer of Warrant
.
(a) Prior to the latest time at which this Warrant may be exercised, subject to any applicable
laws, rules or regulations restricting transferability, this Warrant, subject to the provisions
hereof, may be split up, combined with or exchanged for other Warrants representing a like
aggregate number of Warrant Shares or may be transferred in whole or in part. Any holder desiring
to split up, combine, exchange or transfer this Warrant shall make such request in writing
delivered to the Company at its principal office and shall surrender this Warrant to be split up,
combined or exchanged at said office with the Form of Assignment. Upon any such surrender for
split up, combination, exchange or transfer, the Company shall execute and deliver to the person
entitled thereto a new Warrant or Warrants, as the case may be, as so requested in the Form of
Assignment. The Company may require the holder to pay a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any split up, combination, exchange or
transfer of this Warrant prior to the issuance of any new Warrant.
(b) If this Warrant is surrendered upon its exercise or for split up, combination, exchange or
transfer, or purchased or otherwise acquired by the Company, this Warrant shall be canceled and
shall not be reissued by the Company; and, except as otherwise provided herein in case of the
exercise of this Warrant for less than all of the Warrant Shares or in case of a split up,
combination, exchange or transfer, no Warrant shall be issued hereunder in lieu of such canceled
Warrant. Any Warrant so canceled shall be destroyed by the Company.
(c) By accepting this Warrant, the Registered Holder consents and agrees with the Company
that:
(i) transfer of this Warrant shall be registered on the books of the Company only if
surrendered at the principal office of the Company, duly endorsed or accompanied by a proper
instrument of transfer; and
(ii) prior to due presentment for registration of transfer, the Company may deem and treat
the person in whose name this Warrant is registered as the absolute owner thereof
and of the rights evidenced thereby (notwithstanding any notations of ownership or writing on
the Warrant made by anyone other than the Company) for all purposes whatsoever, and the Company
shall not be affected by any notice to the contrary.
B-8
12.
Headings
. The headings of the various sections of this Warrant are for
convenience of reference only and shall not be deemed to be part of this Warrant.
13.
Governing Law
. The laws of the State of New York shall govern this Warrant.
B-9
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed.
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BIOCRYST PHARMACEUTICALS, INC.
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By:
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Title:
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B-10
FORM OF
ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to purchase
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shares of BioCryst Pharmaceuticals,
Inc. (the “Company”) common stock (“Common Stock”) pursuant to the terms of the attached warrant
(the “Warrant”), and tenders herewith payment of the exercise price in full, together with all
applicable transfer taxes, if any.
The undersigned represents and warrants to the Company as of the date hereof the same statements
with respect to the shares being acquired upon exercise of this warrant as are set forth in Section
5 of the Stock and Warrant Purchase Agreement dated August
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, 2007, pursuant to which the
above-referenced Warrant was sold, regarding the securities purchased thereby.
The undersigned requests that certificates for such shares be issued and delivered as follows:
(ADDRESS, INCLUDING ZIP CODE)
(SOCIAL SECURITY OR OTHER TAX IDENTIFYING NUMBER)
(ADDRESS, INCLUDING ZIP CODE)
If the attached Warrant is exercised in part only, the undersigned requests that a new Warrant
evidencing the right to purchase the balance of the shares purchasable under the Warrant be issued
and delivered as set forth below.
(ADDRESS, INCLUDING ZIP CODE)
(SOCIAL SECURITY OR OTHER TAX IDENTIFYING NUMBER)
(ADDRESS, INCLUDING ZIP CODE)
Dated:
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(Insert Social Security or
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(Signature of registered
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other identifying number
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holder)
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of holder)
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(Signature of registered
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holder, if co-owned)
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NOTE: Signature must conform in all respects to name of holder as specified on
the face of the Warrant.
FORM OF
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto the Assignee named
below all of the rights of the undersigned represented by the within Warrant, with respect to the
number of Warrant Shares set forth below:
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Name of Assignee
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Address
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No. of Warrant Shares
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and does hereby irrevocably constitute and appoint
Attorney to make such transfer
on the books of BioCryst Pharmaceuticals, Inc. maintained for that purpose, with full power of
substitution in the premises.
Dated:
, 200
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(Insert Social Security or other identifying
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Signature
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number of holder)
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