EXHIBIT 10.24
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is made as of September 14,
1998, by and between BioCryst Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx & Xxxxxxx Development Corporation, a New Jersey
corporation ("JJDC").
RECITAL:
WHEREAS, JJDC desires to purchase from the Company, and the Company desires
to sell to JJDC, shares of the Company's common stock, upon the terms and
subject to the conditions set forth herein and in connection with the execution
of a separate License Agreement (the "License Agreement") of even date herewith
between Ortho-XxXxxx Pharmaceutical Corporation and the Company.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
1. PURCHASE AND SALE OF SHARES. (a) Subject to the terms and
conditions of this Agreement, at the Closing (as defined hereinafter), the
Company agrees to sell to JJDC and JJDC agrees to purchase from the Company,
that number of shares (the "Shares") of the Company's Common Stock, par value
$.01 (the "Common Stock"), determined by dividing six million dollars
($6,000,000) by six dollars and fifty three cents ($6.53), the Agreed Price (as
such term is defined in the Master Agreement of even date herewith (the "Master
Agreement") by and between the Company and JJDC), for an aggregate purchase
price (the "Purchase Price") of six million dollars ($6,000,000).
(b) The purchase and sale of the Shares shall take place at the
offices of the Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx, at 11:00 a.m. Eastern time on such date (the "Closing Date") as the
parties shall mutually agree (the "Closing"); PROVIDED that in no event shall
the Closing Date be later than 53 days from the date hereof.
(c) At the Closing, the Company will deliver to JJDC a certificate or
certificates, registered in JJDC's name, representing the Shares, and JJDC shall
deliver an amount equal to the Purchase Price to the Company by certified check
payable to the Company or wire transfer of immediately available funds to an
account specified by the Company.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to JJDC that:
2.1 ORGANIZATION AND CORPORATE POWER. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and is qualified to do business as a foreign corporation in
each jurisdiction where failure to qualify would have a Material Adverse Effect
on the Company. For purposes of this Agreement, a "Material Adverse Effect" or
"Material Adverse Change" shall mean, with respect to the Company, any material
adverse effect or change in the condition (financial or other), business,
results of operations, prospects, assets, liabilities or operations of the
Company taken as a whole or on the ability of the Company to consummate any of
the transactions contemplated hereby, or any event or condition that would, with
or without the passage of time, constitute a "Material Adverse Effect" or
"Material Adverse Change." The Company has full power and authority to own its
property, to carry on its business as presently conducted and to carry out the
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transactions contemplated hereby. The copies of the Certificate of
Incorporation and Bylaws of the Company, as amended to date, which have been
furnished to JJDC by the Company, are correct and complete.
2.2 AUTHORIZATION. The Company has full power to execute, deliver
and perform this Agreement, the License Agreement and each other agreement
entered into by the Company in connection with this Agreement. Each such
agreement has been duly executed and delivered by the Company and is the legal,
valid and, assuming due execution by the other parties hereto and thereto,
binding obligation of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting creditors' rights generally, and to
general equitable principles. The execution, delivery and performance of this
Agreement, including the sale, issuance and delivery of the Shares, and the
License Agreement, and each other agreement entered into by the Company in
connection with this Agreement, has been duly authorized by all necessary
corporate action of the Company.
2.3 CAPITALIZATION. When issued in accordance with the terms of this
Agreement, the Shares will be duly authorized, validly issued and outstanding,
fully paid and nonassessable, free of any liens, encumbrances, preemptive rights
or rights of first refusal and will be issued in compliance with all applicable
federal and state securities laws. The entire authorized capital stock of the
Company consists of (i) 5,000,000 shares of Preferred Stock, par value $.01 (the
"Preferred Stock"), and (ii) 45,000,000 shares of Common Stock authorized as of
the most recent date practicable. There were no shares of Preferred Stock
outstanding and 13,956,743 shares of Common Stock outstanding as of the most
recent date practicable. The shares of Common Stock outstanding are duly
authorized, validly issued and outstanding, fully paid and nonassessable, and
were issued in compliance with all applicable federal and state securities laws.
No shares of Common Stock or Preferred Stock are held in the Company's treasury.
There are no outstanding securities, warrants, rights of first refusal, options
or other rights to purchase or acquire, or exchangeable for or convertible into,
any shares of Common Stock or Preferred Stock, except that the Company has (i)
reserved 2,629,692 shares of Common Stock under its stock option plans and
129,038 shares of Common Stock under the Company's Employee Stock Purchase Plan,
and (ii) outstanding warrants to purchase 248,239 shares of Common Stock. There
are no preemptive rights with respect to the issuance or sale by the Company of
any of its securities. Upon consummation of the transactions contemplated
hereby, JJDC will acquire good and valid title to the Shares, free and clear of
any encumbrances, liens, claims, charges or assessments of any nature whatever.
2.4 SUBSIDIARIES. The Company has no subsidiaries and no
investments, directly or indirectly, in any other corporation or business
organization. Except as set forth in the Public Reports, the Company is not a
participant in any joint venture or partnership.
2.5 FINANCIAL STATEMENTS. The audited balance sheets and statements
of operations and cash flow for the Company included in the Public Reports (as
defined below)(collectively, the "Financial Statements") are complete and
correct in all material respects, are in accordance with the books and records
of the Company, have been prepared in accordance with generally accepted
accounting principles, consistently applied, and fairly present the financial
position of the Company as of each such date and the results of operations for
each such period then ended.
2.6 ABSENCE OF UNDISCLOSED LIABILITIES. Except as and to the extent
reflected or stated in the Financial Statements, the Company has no debts,
liabilities or obligations of any nature, whether accrued or absolute, assigned
or otherwise, or whether due or to become due, that would have been required to
be reflected in, reserved against or otherwise described on the Financial
Statements in accordance with GAAP which were not (a) fully reflected in,
reserved against or otherwise described therein or (b) incurred in the ordinary
course of business consistent with past practice since June 30, 1998.
2.7 ABSENCE OF CERTAIN DEVELOPMENTS. Since the date of the Company's
Quarterly Report on Form 10-Q (the "10-Q") for the period ended June 30, 1998,
(a) there has not been any Material Adverse Change with respect to the Company,
and (b) the Company has not entered into any transaction except in the ordinary
course of business and consistent with past practice, or entered into any
agreement (contingent or otherwise) to do so.
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2.8 TITLE TO PROPERTIES. Except as disclosed in the Financial
Statements, the Company has good and marketable title to, or has a valid
leasehold interest in, or a valid license for, all of the material properties
and assets reflected in the Financial Statements, free and clear of all
mortgages, security interests, liens, restrictions or encumbrances other than
(i) the lien of current taxes not yet due and payable and (ii) possible minor
liens and encumbrances which do not in any case, individually or in the
aggregate, materially detract from the value of the property subject thereto or
materially impair the operations of the Company, would not result in the
occurrence of a Material Adverse Change, and which have not arisen otherwise
than in the ordinary course of business.
2.9 TAX MATTERS. (a) All material taxes, including, without
limitation, income, excise, property, sales, transfer, use, franchise, payroll,
employees' income withholding and social security taxes imposed or assessed by
the United States or by any foreign country or by any state, municipality,
subdivision or instrumentality of the United States or of any foreign country,
or by any other taxing authority, which are due or payable by the Company, and
all interest, penalties and additions thereon, whether disputed or not, have
been paid in full; all tax returns or other documents required to be filed in
connection therewith have been accurately prepared and duly and timely filed;
and the Company is not the beneficiary of any extension of time within which to
file any such returns, except that the Company's 1997 tax returns are the
subject of an extension. The Company has not been delinquent in the payment of
any foreign or domestic tax, assessment or governmental charge or deposit and
has no tax deficiency or claim outstanding, assessed or, to the best of its
knowledge, proposed against it, and there is no basis for any such deficiency or
claim. No issues have been raised (or are currently pending) by the Internal
Revenue Service or any other taxing authority in connection with any of the
returns and reports referred to above, and no waivers of statutes of limitations
have been given or requested with respect to the Company in connection
therewith. The provisions for taxes in the Financial Statements are sufficient
for the payment of all accrued and unpaid federal, state, county and local taxes
of the Company.
(b) The Company is not a party to or bound by any tax indemnity, tax
sharing or tax allocation agreement.
(c) The Company is not presently a member nor have they ever been a
member of an affiliated group of corporations within the meaning of Section 1504
of the Internal Revenue Code.
2.10 NO DEFAULTS. The Company is not in violation of any term or
provision of (a) its Certificate of Incorporation or Bylaws, as amended to date,
or in any material respect any note, indenture, mortgage, lease, agreement,
contract, purchase order or other material instrument, document or agreement to
which the Company is a party or by which it or any of its properties or assets
is bound or affected or (b) any order, writ, injunction or decree of any court
or any federal, state, municipal or other governmental department, authority,
commission, board, bureau, agency or instrumentality, domestic or foreign.
There exists no condition, event or act which constitutes, or which after
notice, lapse of time or both, would constitute a Material Adverse Effect under
any of the foregoing.
2.11 INTELLECTUAL PROPERTY. The Company has sufficient title and
ownership of all material patents, trademarks, service marks, trade names,
copyrights, trade secrets, information, proprietary rights and processes,
licenses and inventions necessary for the proper conduct of its business as now
conducted, and as proposed to be conducted, to the best of the Company's
knowledge without conflict with or infringement of the rights of others. There
are no material outstanding options, licenses, or agreements of any kind
relating to the foregoing except as set forth in the Public Reports, nor is the
Company bound by or a party to any options, licenses or agreements of any kind
with respect to the patents, trademarks, service marks, trade names, copyrights,
trade secrets, licenses, information, proprietary rights and processes of any
other person or entity, which would be material to the Company's business as
conducted or, to the best of the Company's knowledge, as proposed to be
conducted. The Company has not received any communications alleging, nor is the
Company aware, to the best of its knowledge, of any basis for such allegation,
that the Company has violated, or by conducting its business as proposed, would
violate any of the patents, trademarks, service marks, tradenames, copyrights or
trade secrets or other proprietary rights of any other person or entity. No
other firm, corporation, association or person (i) has notified the Company that
it is claiming any ownership of or right to use any of the patents, trademarks,
service marks, tradenames, copyrights or trade secrets or other proprietary
rights, or (ii) to the best of the Company's
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knowledge, is infringing upon any such patents, trademarks, service marks,
tradenames, copyrights or trade secrets or other proprietary rights. The
Company is not aware, to the best of its knowledge, that any of its employees is
obligated under any contract (including, licenses, covenants or commitments of
any nature) or other agreement, or subject to any judgment, decree or order of
any court or administrative agency, that would interfere with the use of such
employee's best efforts to promote the interests of the Company or that would
conflict with the Company's business as proposed to be conducted. Neither the
execution nor delivery of this Agreement, nor the carrying on of the Company's
business by the employees of the Company, nor the conduct of the Company's
business as proposed, will, to the best of the Company's knowledge, conflict
with or result in a breach of the terms, conditions or provisions of, or
constitute a default under, any contract, covenant or instrument under which any
of such employees now obligated. Each employee of and consultant to the Company
with access to confidential or proprietary information has executed a
proprietary information agreement obligating such employee or consultant to hold
all such information in confidence. The Company does not believe, to the best
of its knowledge, that it is or will be necessary to utilize any inventions of
any of its employees (or people it currently intends to hire) made prior to
their employment by the Company for which licenses have not already been
obtained.
2.12 EFFECT OF TRANSACTIONS. The execution, delivery and performance
of this Agreement and the transactions contemplated hereby, and compliance with
the provisions hereof by the Company, do not and will not, with or without the
passage of time or the giving of notice or both, (a) violate any provision of
law, statute, rule or regulation or any ruling, writ, injunction, order,
judgment or decree of any court, administrative agency or other governmental
body or (b) conflict with or result in any breach of any of the terms,
conditions or provisions of, or constitute a default (or give rise to any right
of termination, cancellation or acceleration) under, or result in the creation
of any lien, security interest, charge or encumbrance upon any of the properties
or assets of the Company, under the Certificate of Incorporation or Bylaws, as
amended to date, of the Company or any material note, indenture, mortgage,
lease, agreement, contract, purchase order or other instrument, document or
agreement to which the Company is a party or by which it or any of its
properties or assets is bound or affected, except in any case where such
occurrence would not have a Material Adverse Effect on the Company.
2.13 NO GOVERNMENTAL CONSENT OR APPROVAL REQUIRED. Based in part on
the representations made by JJDC in Section 3 of this Agreement, no
authorization, consent, approval or other order of, declaration to, or
registration, qualification, designation or filing with, any federal, state or
local governmental agency or body is required for or in connection with the
valid and lawful authorization, execution and delivery by the Company of this
Agreement, the License Agreement or any other agreement entered into by the
Company in connection with this Agreement, and the consummation of the
transactions contemplated hereby or thereby, or for or in connection with the
valid and lawful authorization, issuance, sale and delivery of the Shares, other
than (i) applicable obligations under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 and the rules and regulations thereunder (the "HSR
Act"), and (ii) the qualification (or taking of such action as may be necessary
to secure an exemption from qualification if available) of the offer and sale of
the Shares under the applicable state securities laws, which filings and
qualifications, if required, will be accomplished in a timely manner so as to
comply with such qualification or exemption from qualification requirements.
2.14 LITIGATION. Except as disclosed in the 10-Q, there is no (a)
claim, arbitration, action, suit, proceeding or investigation at law or in
equity or by or before any governmental instrumentality or other agency pending,
or to the best knowledge of the Company, threatened against the Company, or (b)
judgment, decree, injunction or order of any court, governmental department,
commission, agency, instrumentality or arbitrator against the Company, nor, to
the best knowledge of the Company, does there exist any basis therefor.
2.15 SECURITIES LAWS. Assuming that JJDC's representations and
warranties contained in Section 3 of this Agreement are true and correct, the
offer, issuance and sale of the Shares are and will be exempt from the
registration and prospectus delivery requirements of the Securities Act of 1933,
as amended (the "1933 Act"), and have been registered or qualified (or are
exempt from registration and qualification) under the registration, permit or
qualification requirements of all applicable state securities laws.
2.16 BUSINESS. The Company has complied in all material respects
with all Federal, state, local or foreign laws, ordinances, regulations or
orders applicable to the business of the Company as presently or previously
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conducted, or as proposed to be conducted. The Company has all Federal, state,
local and foreign governmental licenses and permits that are required for the
conduct of its business presently or previously conducted by the Company, which
licenses and permits are in full force and effect, and no violations are
outstanding or uncured with respect to any such licenses or permits and no
proceeding is pending or, to the best knowledge of the Company, threatened to
revoke or limit any thereof.
2.17 BROKERAGE. Except as otherwise disclosed in the License
Agreement, there are no claims for brokerage commissions or finder's fees or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement made by or on behalf of the Company and the
Company agrees to indemnify and hold JJDC harmless against any damages incurred
as a result of any such claim.
2.18 INSURANCE. The Company maintains in full force such types and
amounts of insurance issued by issuers of recognized responsibility insuring the
Company, with respect to its liability, workers' compensation, business and
properties, in such amounts and against such losses and risks as are adequate
against risks usually insured against by Persons (as hereinafter defined)
operating similar businesses and properties.
2.19 PUBLIC REPORTS. The Company has provided to JJDC true and
complete copies of all reports, schedules, forms, statements and other documents
(the "Public Reports") filed by the Company with the Securities and Exchange
Commission (the "SEC") under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), since December 31, 1996. The Public Reports include all
the reports the Company has been required to file under the Exchange Act since
that date. As of their respective dates, (i) the Public Reports complied in all
material respects with the requirements of the Exchange Act and the rules and
regulations promulgated thereunder, and (ii) none of the Public Reports
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading.
2.20 INVESTMENT COMPANY. The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, and will
not, as a result of the transactions contemplated hereby, become an "investment
company."
2.21 REGISTRATION RIGHTS. Except as set forth herein and except with
respect to the registration rights described on the Annual Report on Form 10-K
for the year ended December 31, 1997 and the Company's registration statement on
Form S-8, the Company is not under any contractual obligation to register any of
its currently outstanding securities or any of its securities that may hereafter
be issued.
2.22 DISCLOSURE. The Company has provided JJDC with all the
information that it has requested for deciding whether to purchase the Shares at
the Closing. Neither the Financial Statements nor this Agreement contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein and therein not misleading.
3. REPRESENTATIONS AND WARRANTIES AND OTHER AGREEMENTS OF JJDC.
3.1 REPRESENTATIONS AND WARRANTIES. JJDC hereby represents and
warrants to the Company that:
a. AUTHORIZATION. JJDC has full power and authority to execute,
deliver and perform this Agreement and to purchase the Shares. Assuming due
execution by the Company hereto, this Agreement constitutes the valid and
legally binding obligation of JJDC, enforceable against JJDC in accordance with
its terms, subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting creditors' rights generally, and to
general equitable principles.
b. INVESTMENT INTENT. JJDC is an "accredited investor" as
defined in Regulation D of the Securities Act. The Shares to be received by
JJDC will be acquired for investment for JJDC's own account, not as a nominee or
agent and not with a view to the distribution of any part thereof. JJDC has no
present intention of selling, granting any participation in, or otherwise
distributing the same. JJDC does not have any contract,
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undertaking, agreement or arrangement with any person to sell, transfer, or
grant participation to such person or to any third person, with respect to any
of the Shares.
c. RESTRICTIONS ON DISPOSITION. JJDC covenants that in no event
will it dispose of any of the Shares (other than pursuant to Rule 144
promulgated under the 1933 Act ("Rule 144") or pursuant to a registration
statement filed with the Securities and Exchange Commission (the "SEC") pursuant
to the 0000 Xxx) unless and until (i) JJDC shall have notified the Company of
the proposed disposition and shall have furnished the Company with a statement
of the circumstances surrounding the proposed disposition, and (ii) if requested
by the Company, JJDC shall have furnished the Company with an opinion of JJDC's
counsel, reasonably satisfactory in form and substance to the Company and the
Company's counsel, to the effect that (a) such disposition will not require
registration under the 1933 Act or (b) appropriate action necessary for
compliance with the 1933 Act and any applicable state, local or foreign law has
been taken. The restrictions on transfer imposed by this Section 3.1(c) shall
cease and terminate as to the Shares when: (i) such Shares shall have been
effectively registered under the 1933 Act and sold by the holder thereof in
accordance with such registration, or (ii) an opinion of the kind described in
the preceding sentence states that all future transfers of such Shares by the
holder thereof would be exempt from registration under the 1933 Act. Each
certificate evidencing the Shares shall bear an appropriate restrictive legend
as set forth in Section 3.3 below, except that such certificate shall not be
required to bear such legend after a transfer thereof if the transfer was made
in compliance with Rule 144 or pursuant to a registration statement or, if the
opinion of counsel referred to above is issued and provides that such legend is
not required in order to establish compliance with any provisions of the 1933
Act.
d. RECEIPT OF INFORMATION. JJDC has been furnished access to
the business records of the Company and all such additional information and
documents as JJDC has requested and has been afforded an opportunity to ask
questions of and receive answers from representatives of the Company concerning
the terms and conditions of this Agreement and the purchase of the Shares.
e. BROKERAGE. There are no claims for brokerage commissions or
finder's fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement made by or
on behalf of JJDC, and JJDC agrees to indemnify and hold the Company harmless
against any damages incurred as a result of any such claims.
3.2 FURTHER PROVISIONS REGARDING DISPOSITION.
a. TRANSFER TO AFFILIATES. Notwithstanding the provisions of
Section 3.1(c) above, no registration statement or opinion of counsel shall be
necessary for a transfer by JJDC of the Shares to a subsidiary, shareholder or
Affiliate of JJDC, if the transferee agrees in writing to be subject to the
terms hereof to the same extent as if such transferee were JJDC hereunder.
b. NEW CERTIFICATES. Whenever the restrictions imposed by
Section 3.1(c) shall terminate as herein provided, the holder of the Shares as
to which such restrictions have terminated shall be entitled to receive from the
Company, without expense, one or more new certificates not bearing restrictive
legends and not containing any reference to the restrictions imposed by this
Agreement.
3.3 LEGENDS. It is understood that, subject to Sections 3.1(c) and
3.2(b), the certificates evidencing the Shares may bear substantially the
following legends:
(a) THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE
144 OF SUCH ACT.
(b) Any legend required by the laws of any other applicable
jurisdiction.
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4. CONDITIONS TO JJDC'S OBLIGATIONS AT CLOSING. The obligations of
JJDC to purchase Shares at the Closing are subject to the fulfillment on or
prior to the Closing of each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in Section 2 shall be true in all material
respects (provided that to the extent any representation or warranty has a
materiality qualification it shall not be further qualified by the use of the
word material in this Section 4(a)) on and as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
the Closing Date; PROVIDED that a Material Adverse Change or Material Adverse
Effect occurring after the date hereof shall not constitute a breach of the
specific representation and warranty and condition to closing set forth in this
Section 4(a) if such Material Adverse Change or Material Adverse Effect is
publicly disclosed by the Company at least two (2) business days prior to the
Closing Date.
(b) PERFORMANCE. The Company shall have performed and complied with
all material agreements, obligations, and conditions contained in this Agreement
that are required to be performed or complied with by it on or before the
Closing.
(c) QUALIFICATIONS. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Shares to JJDC pursuant to this Agreement shall have been duly obtained and
shall be effective on and as of the Closing.
(d) PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings
in connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to JJDC and JJDC's counsel, and they shall have received all such
counterpart original and certified or other copies of such documents as they may
reasonably request.
(e) LICENSE AGREEMENT. The License Agreement shall have been
executed and delivered by the Company and shall be in full force and effect.
(f) OPINION OF COMPANY COUNSEL. JJDC shall have received from
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, an opinion addressed to
JJDC covering the matters set forth in Sections 2.1, 2.2, 2.3 (as to the due
authorization, valid issuance, full payment and non-assessability of the
Shares), 2.13, 2.15 (solely with respect to federal securities laws) and 2.20
hereof and, to the best of its knowledge, as to the matters set forth in Section
2.12 (and with respect to the matters set forth in Section 2.12(b), solely as to
such notes, indentures, mortgages, leases, agreements, contracts, purchase
orders or other instruments or documents identified by the Company as material
in the Public Reports).
(g) COMPLIANCE CERTIFICATE. The Chief Executive Officer of the
Company shall deliver to JJDC at the Closing a certificate certifying that the
conditions specified in Sections 4.1(a), (b) and (c) hereof have been fulfilled
and stating that there has been no Material Adverse Change in the Company since
the date of the 10-Q.
(h) REQUIRED CONSENTS. All waiting periods applicable to the Closing
under the HSR Act (including any extension thereof by reason of a request for
additional information) shall have expired or been terminated and no action
shall have been instituted, or shall be threatened or pending, by the United
States Justice Department (the "DOJ") or the Federal Trade Commission (the
"FTC") challenging or seeking to enjoin the consummation of the transactions
contemplated at the Closing, which action shall not have been withdrawn or
terminated.
5. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING. The
obligations of the Company under Section 1 of this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions:
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5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of JJDC contained in Section 3 shall be true in all material respects
(provided that to the extent any representation or warranty has a materiality
qualification it shall not be further qualified by the use of the word material
in this Section 5.1) on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of the
Closing Date.
5.2 PERFORMANCE. JJDC shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
5.3 QUALIFICATIONS. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Shares at the Closing to JJDC pursuant to this Agreement shall have been
duly obtained and shall be effective on and as of the date of the Closing.
5.4 REQUIRED CONSENTS. All waiting periods applicable to the Closing
under the HSR Act (including any extension thereof by reason of a request for
additional information) shall have expired or been terminated and no action
shall have been instituted, or shall be threatened or pending, by the DOJ or the
FTC challenging or seeking to enjoin the consummation of the transactions
contemplated at the Closing, which action shall not have been withdrawn or
terminated.
6. REGISTRATION OF SHARES.
6.1 DEFINITIONS. Unless the context otherwise requires, the terms
defined in this Section 6 shall have the meanings herein specified for all
purposes of this Agreement, applicable to both the singular and plural forms of
any of the terms herein defined.
"HOLDER" of any security means the record or beneficial owner of
such security or any permitted assignee thereof.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the 1933 Act, and the declaration for ordering of the
effectiveness of such registration statement.
"REGISTRABLE SECURITIES" means (i) the shares of Common Stock of
the Company sold pursuant to this Agreement and (ii) any Common Stock issued or
issuable with respect to the Common Stock referred to in clause (i) above by way
of a stock dividend or stock split or in connection with a combination of
shares, reclassification, recapitalization, merger or consolidation or
reorganization; provided, however that such shares of Common Stock shall only be
treated as Registrable Securities if and so long as they have not been (x) sold
to or through a broker or dealer or underwriter in a public distribution or a
public securities transaction, or (y) sold in a transaction exempt from the
registration and prospectus delivery requirements of the 1933 Act pursuant to
Rule 144 thereunder so that all the transfer registrations and restrictive
legends with respect to such Common Stock are removed upon the consummation of
such sale and the Company receives an opinion of counsel for the Company (with a
copy to the seller of such Common Stock), which shall be in form and content
reasonably satisfactory to the Company, to the effect that such Common Stock in
the hands of the purchaser is freely transferable without restriction or
registration under the 1933 Act in any public or private transaction.
"REGISTRABLE SECURITIES THEN OUTSTANDING" means the number of
shares of Common Stock which are Registrable Securities and (i) are then issued
and outstanding or (ii) are then issuable pursuant to the exercise or conversion
of then outstanding and then exercisable options, warrants or convertible
securities.
6.2 FORM S-3 REGISTRATION. (a) Upon the written request of JJDC
(a "Registration Request"), the Company shall file with the SEC on or after the
date which is six (6) months after the date hereof, a registration statement on
Form S-3 covering all of the Registrable Securities and use its best efforts
thereafter to
8
effect such registration and any related qualification or compliance as soon as
practicable as may be necessary and as would permit or facilitate the sale and
distribution of all the Registrable Securities.
(b) In the event that the effectiveness of the Form S-3 is suspended
or terminated at any time within the two (2) year period following the date
hereof, then the Company shall give written notice to the Holders and shall use
its best efforts to effect as soon as practicable the registration on Form S-1
of all Registrable Securities which the Holders request to be registered
pursuant to such request and all such qualifications and compliances as may be
necessary and as would permit or facilitate the sale and distribution of all the
Registrable Securities requested to be registered; PROVIDED, HOWEVER, that the
Company shall not be obligated to effect or continue any such registration,
qualification or compliance pursuant to this Section 6.2 after the second
anniversary of the date hereof.
(c) The Company may (i) suspend sales of Registrable Securities under
an effective registration statement for a period of not more than sixty (60)
days, or (ii) defer the filing (but not the preparation) of a registration
statement required by this Section 6.2 until a date not later than sixty (60)
days after the date of a Registration Request with respect to the Form S-3 if,
at any time prior to receiving the Registration Request, the Company is engaged
in confidential negotiations or other confidential business activities,
disclosure of which (in the reasonable opinion of outside counsel to the
Company) would be required in such registration statement and would not be
required if such registration statement were not filed, and the Board of
Directors of the Company determines in good faith that such disclosure would be
materially detrimental to the Company and its stockholders; provided, however,
that the Company shall not utilize this right more than twice in any 12-month
period.
(d) A deferral of the filing of a registration statement pursuant to
Section 6.2(c) shall be lifted if the negotiations or other activities are
disclosed. In order to defer the filing of a registration statement pursuant to
this Section 6.2, the Company shall promptly (but in any event within 5 days),
upon determining to seek such deferral, deliver to each Holder a certificate
signed by an executive officer of the Company stating that the Company is
deferring such filing pursuant to this Section 6.2 and a general statement of
the reason for such deferral and an approximation of the anticipated delay.
Each Holder hereby agrees to keep confidential any information disclosed to such
Holder in any such certificate (including the fact that such certificate was
delivered).
6.3 REGISTRATION EXPENSES. The Company shall pay all expenses
incurred in effecting the registration of Registrable Securities pursuant to
Section 6 including, without limitation, all federal and state registration,
qualification and filing fees, printing expenses, fees and disbursements of
counsel for the Company, reasonable fees and disbursements of one counsel for
the participating Holders together, blue sky fees and expenses, and the expense
of any special audits incident to or required by any such registration, but not
including underwriting discounts, commissions and expenses.
6.4 REGISTRATION PROCEDURES. If and whenever the Company is required
by the provisions of Section 6 to effect the registration of Registrable
Securities under the 1933 Act, the Company will, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement which
includes the Registrable Securities and use its best efforts to cause such
registration statement to become and remain effective for a period of two (2)
years after the date hereof;
(b) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective and to comply
with the provisions of the 1933 Act with respect to the sale or other
disposition of Registrable Securities covered by such registration statement for
a period of two (2) years after the date hereof;
(c) furnish to each participating Holder (and to each
underwriter, if any, of Registrable Securities) such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the 1933 Act, and such other documents, as such Holder may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities;
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(d) use its best efforts to register or qualify the Registrable
Securities covered by such registration statement under such state securities or
blue sky laws of such jurisdiction as each participating Holder shall reasonably
request and do any and all other acts and things which may be necessary under
such securities or blue sky laws to enable such Holder to consummate the public
sale or other disposition of the Registrable Securities in such jurisdictions,
except that the Company shall not for any purpose be required to consent
generally to service of process or qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified;
(e) before filing the registration statement or prospectus or
amendments or supplements thereto, furnish to counsel selected by the
participating Holders copies of such documents proposed to be filed which shall
be subject to the reasonable approval of such counsel;
(f) enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter of such
offer;
(g) notify the participating Holders at any time when a
prospectus relating to any Registrable Securities covered by such registration
statement is required to be delivered under the 1933 Act, of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing and promptly file such amendments and supplements as may be necessary
so that, as thereafter delivered to such Holders of such Registrable Securities,
such prospectus shall not include 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 in light of the circumstances then existing
and use its best efforts to cause each such amendment and supplement to become
effective;
(h) furnish at the request of the participating Holders on the
date that such Registrable Securities are delivered to the underwriters for sale
in connection with a registration pursuant to Section 6, (i) an opinion, dated
such date, of the counsel representing the Company, for purposes of such
registration, in form and substance as is customarily given by company counsel
to the underwriters in an underwritten public offering addressed to the
underwriters, if any, and to such Holders, and (ii) a letter dated such date,
from the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters
and to such Holders; and
(i) use its best efforts to cause all such Registrable
Securities to be listed on the securities exchange, if any, on which the Common
Stock is then listed.
6.5 INDEMNIFICATION. In the event Registrable Securities are
registered pursuant to this Section 6:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder of Registrable Securities which are included in a
registration statement pursuant to the provisions of this Agreement and any
underwriter (within the meaning of the 0000 Xxx) with respect to the Registrable
Securities, and each officer, director, employee and agent thereof and each
person, if any, who otherwise controls such Holder or underwriter (within the
meaning of the 1933 Act), against any losses or claims, damages, expenses or
liabilities, joint or several, to which they may become subject under the 1933
Act, the Exchange Act or other federal or state law, or otherwise, insofar as
such losses, claims, damages, expenses or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue or allegedly untrue statement
of any material fact contained in the registration statement for the Registrable
Securities, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, or any document incident to
the registration or qualification of any Registrable Securities, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or allegedly necessary to make the statements
therein not misleading or arise out of any violation or alleged violation by the
Company of the 1933 Act, the Exchange Act, any state securities law or
10
any rule or regulation promulgated under the 1933 Act, the Exchange Act or any
state securities law; and will reimburse such Holder, any underwriter, officer,
director, employee, agent or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this Section 6.5(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, expense, liability or action
if such settlement is effected without the written consent of the Company, which
shall not be unreasonably withheld, nor shall the Company be liable under this
Section 6.5(a) to such Holder, such underwriter, officer, director, employee,
agent or controlling person for any such loss, claim, damage, expense, liability
or action to the extent that it arises out of, or is based upon, an untrue
statement or allegedly untrue statement or omission or alleged omission made in
connection with such registration statement, preliminary prospectus, final
prospectus, or amendments or supplements thereto, in reliance upon and in
conformity with information furnished in writing expressly for use in connection
with such registration by such Holder, such underwriter, officer, director,
employee, agent or such controlling person.
(b) To the extent permitted by law, each Holder of Registrable
Securities which are included in a registration statement pursuant to the
provisions of this Agreement will indemnify and hold harmless the Company, each
of its employees, agents, directors and officers, each person, if any, who
controls the Company within the meaning of the 1933 Act, and any underwriter
(within the meaning of the 0000 Xxx) against any losses, claims, damages, or
liabilities to which the Company or any such person or underwriter may become
subject, under the 1933 Act, the Exchange Act or other federal or state law or
otherwise, insofar as such losses, claims, damages, expenses or liabilities (or
actions in respect thereof) arise out of, or are based upon any untrue or
allegedly untrue statement of any material fact contained in a registration
statement for the Registrable Securities, including any preliminary prospectus
or final prospectus contained therein or any amendments or supplements thereto,
or any document incident to the registration or qualification of any Registrable
Securities, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or allegedly
necessary to make the statements therein not misleading; in each case to the
extent that such untrue statement or allegedly untrue statement or omission or
alleged omission was made in such registration statement, preliminary
prospectus, or amendments or supplements thereto, in reliance upon and in
conformity with information furnished in writing by such Holder expressly for
use in connection with such registration; provided, however, that the indemnity
agreement contained in this Section 6.5(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, expense, liability or action if such
settlement is effected without the written consent of such Holder, which shall
not be unreasonably withheld; and such Holder will reimburse the Company or any
such person or underwriter for any legal or other expenses reasonably incurred
by the Company or any such person or underwriter in connection with
investigating or defending such loss, claim, damage, liability, expense or
action.
(c) Promptly after receipt by an indemnified party under this
Section 6.5 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying party
under this Section 6.5, notify the indemnifying party in writing of the
commencement thereof and generally summarize such action. The indemnifying
party shall have the right to participate in and to assume the defense thereof
with counsel mutually satisfactory to the parties. An indemnifying party shall
not have the right to direct the defense of such an action on behalf of an
indemnified party if such indemnified party has reasonably concluded that there
may be defenses available to it that are different from or additional to those
available to the indemnifying party; provided, however, that in such event, the
indemnifying party shall bear the fees and expenses of only one (1) separate
counsel for all indemnified parties. The failure to notify an indemnifying
party promptly of the commencement of any such action if prejudicial to the
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 6.5, but the omission so
to notify the indemnifying party will not relieve such party of any liability
that such party may have to any indemnified party otherwise than under this
Section 6.5.
(d) To the extent permitted by law, the indemnification provided
for under this Section 6.5 will remain in full force and effect regardless of
any investigation made by or on behalf of the indemnified party or any officer,
director or controlling person (within the meaning of the 0000 Xxx) of such
indemnified party and will survive the transfer of any securities.
11
(e) If for any reason the foregoing indemnity is unavailable to,
or is insufficient to hold harmless an indemnified party, then the indemnifying
party shall contribute to the amount paid or payable by the indemnified party as
a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, or provides a lesser sum to the indemnified party than the
amount hereinafter calculated, in such proportion as is appropriate to reflect
not only the relative benefits received by the indemnifying party on the one
hand and the indemnified party on the other but also the relative fault of the
indemnifying party and the indemnified party as well as any other relevant
equitable considerations. Notwithstanding the foregoing, no underwriter, if
any, shall be required to contribute any amount in excess of the amount by which
the total price at which the securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The obligation of any underwriters to
contribute pursuant to this Section 6.5(e) shall be several in proportion to
their respective underwriting commitments and not joint.
6.6 "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees that,
during the period of duration specified by the Company and a managing
underwriter of Common Stock or other securities of the Company, following the
effective date of a registration statement of the Company filed under the 1933
Act, it shall not, to the extent requested by the Company and such managing
underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donees who agree to be similarly
bound) any securities of the Company held by it at any time during such period
except Common Stock included in such registration; provided, however, that:
(a) such agreement shall be applicable only to the first two such
registration statements of the Company which covers Common Stock (or other
securities) to be sold on its behalf to the public in an underwritten offering
during the two-year period following the effective date of a registration
statement referenced above;
(b) all (i) officers and directors of the Company, (ii) persons
acquiring from the Company an aggregate of 1% of more of the outstanding Common
Stock (or shares of securities convertible into Common Stock) from and after the
date hereof, and (iii) all other persons with registration rights (whether or
not pursuant to this Agreement), enter into similar agreements; and
(c) such market stand-off time period shall in no event exceed one
hundred eighty (180) days.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period. Notwithstanding the
foregoing, the obligations described in this Section 6.6 shall not apply to a
registration relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms which may be promulgated in the future, or a registration
relating solely to a Commission Rule 145 transaction on Form S-14 or Form S-15
or similar forms which may be promulgated in the future.
6.7 REPORTS UNDER EXCHANGE ACT. With a view to making available to
the Holders the benefits of Rule 144 promulgated under the 1933 Act and any
other rule or regulation of the SEC that may at any time permit a Holder to sell
Registrable Securities to the public without registration, and with a view to
making it possible for any such Holder to register the Registrable Securities
pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep available public information, as those terms
are understood and defined in Rule 144, at all times;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the Exchange Act; and
12
(c) furnish to a Holder owning any Registrable Securities upon
request (i) a written statement by the Company that it has complied with the
reporting requirements of Rule 144, the 1933 Act and the Exchange Act, or that
it qualifies as a registrant whose Registrable Securities may be resold pursuant
to Form S-3 (at any time after it so qualifies), (ii) a copy of the most recent
annual or quarterly report of the Company and such other reports and documents
so filed by the Company, and (iii) such other information as may be reasonably
required in availing any Holder of Registrable Securities of any rule or
regulation of the SEC which permits the selling of any such Registrable
Securities without registration or pursuant to such form.
6.8 TRANSFERABILITY. The right to cause the Company to register
Registrable Stock granted by the Company to the Holders under this Agreement may
be assigned by any Holder to a transferee or assignee of Registrable Securities
who is an affiliate of JJDC; PROVIDED that such transferee or assignee acquires
no less than 20% of the Registrable Securities then held by such transferring
Holder; and, PROVIDED FURTHER, that the Company must receive written notice
prior to or at the time of said transfer, stating the name and address of said
transferee or assignee and identifying the securities with respect to which such
rights are being assigned.
7. MISCELLANEOUS.
7.1 SURVIVAL OF WARRANTIES. The warranties, representations,
agreements, covenants and undertakings of the Company or JJDC contained in or
made pursuant to this Agreement shall survive the execution and delivery of this
Agreement and each Closing and shall in no way be affected by an investigation
of the subject matter thereof made by or on behalf of JJDC or the Company.
7.2 INCORPORATION BY REFERENCE. All Exhibits and Schedules appended
to this Agreement are herein incorporated by reference and made a part hereof.
7.3 SUCCESSOR AND ASSIGNEES. All terms, covenants, agreements,
representations, warranties and undertakings in this Agreement made by and on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto (including transferees
of any Shares) whether so expressed or not, subject to Sections 6.8.
7.4 AMENDMENTS AND WAIVERS. (a) Any provision of this Agreement may
be amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by JJDC and the Company or, in the case of
a waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by either party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
7.5 GOVERNING LAW. This Agreement shall be deemed a contract made
under the laws of the State of New York and, together with the rights or
obligations of the parties hereunder, shall be construed under and governed by
the laws of such State.
7.6 NOTICES. All notices, requests, consents and demands shall be in
writing and shall be deemed given when (i) personally delivered, (ii) mailed in
a registered or certified envelope, postage prepaid or (iii) sent by Federal
Express or another nationally recognized overnight delivery service (paid by
sender):
to the Company at:
BioCryst Pharmaceuticals, Inc.
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
14
Attention: Xxxxxxx X. Xxxx, Ph.D.
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
or to JJDC at:
Xxxxxxx & Xxxxxxx Development Corporation
Xxx Xxxxxxx & Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
Attention: President
with a copy to:
Xxxxxxx & Xxxxxxx
Xxx Xxxxxxx & Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
Attention: Office of General Counsel
or such other address as may be furnished in writing by a party to the other
party hereto.
7.7 COUNTERPARTS. This Agreement may be executed in counterparts,
all of which together shall constitute one and the same instrument.
7.8 EFFECT OF HEADINGS. The section and paragraph headings herein
are for convenience only and shall not affect the construction hereof.
7.9 ENTIRE AGREEMENT. This Agreement, the License Agreement and
the Exhibits and Schedules hereto and thereto constitute the entire agreement
among the Company and JJDC with respect to the subject matter hereof. There are
no representations, warranties, covenants or undertakings with respect to the
subject matter hereof other than those expressly set forth herein. This
Agreement supersedes all prior agreements between the parties with respect to
the Shares purchased hereunder and the subject matter hereof.
7.10 PUBLICITY. Neither party shall originate any publicity, news
release or other public announcement, written or oral, whether relating to the
performance under this Agreement or the existence of any arrangement between the
parties, without the prior written consent of the other party, except where such
publicity, news release or other public announcement is required by law;
PROVIDED that in such event, JJDC shall be consulted by the Company in
connection with any such publicity, news release or other public announcement
prior to its release and shall be provided with a copy thereof.
7.11 SEVERABILITY. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
14
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written, by the duly authorized representatives of the parties
hereto.
BIOCRYST PHARMACEUTICALS, INC.
By: /s/ Xxxxxxx X. Xxxx
--------------------------
Name: Xxxxxxx X. Xxxx
Title: Chairman/CEO
XXXXXXX & XXXXXXX
DEVELOPMENT CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
15
