EXHIBIT 10.25
STOCKHOLDER'S AGREEMENT
STOCKHOLDER'S AGREEMENT, dated as of September 14, 1998, by and among BIOCRYST
PHARMACEUTICALS, INC., a Delaware corporation (the "Company") and XXXXXXX &
XXXXXXX DEVELOPMENT CORPORATION, a New Jersey corporation ("JJDC", together with
its Affiliates sometimes referred to herein as the "Stockholder"), and a wholly
owned subsidiary of Xxxxxxx & Xxxxxxx, a New Jersey corporation ("J&J").
R E C I T A L S:
A. The Company has concurrently issued and sold to JJDC, for
aggregate consideration of Six Million Dollars ($6,000,000),
shares of the Company's common stock (the "Shares"), $0.01 par
value per share (the "Common Stock").
B. JJDC and the Company desire to set forth herein certain
provisions relating to the ownership and transfer of shares of
Common Stock by JJDC.
A G R E E M E N T:
The parties agree as follows:
ARTICLE I
DEFINITIONS; AUTHORIZATIONS
1.01 DEFINED TERMS. AS USED HEREIN, THE TERMS BELOW SHALL HAVE THE FOLLOWING
MEANINGS.
"AFFILIATE" shall have the meaning set forth in Section 12b-2 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
"COMPANY SECURITIES" shall mean the Common Stock and any additional shares of
Common Stock issued or issuable to JJDC upon the conversion, exchange or
exercise of any other security or right.
"FULLY DILUTED COMMON STOCK" shall mean all of the Common Stock of the Company,
assuming conversion, exercise or exchange of all outstanding convertible,
exchangeable or exercisable securities, options, warrants and similar
instruments for or into Common Stock.
"LICENSE AGREEMENT" shall mean the license agreement dated as of the date hereof
by and between ORTHO-XXXXXX PHARMACEUTICALS, INC., a Delaware corporation and
its X.X. XXXXXXX PHARMACEUTICAL RESEARCH INSTITUTE division ("Ortho"), also a
wholly owned subsidiary of J&J, and the Company, in connection with the
licensing of Company's influenza neuraminidase technology (as defined in the
License Agreement).
"PERMITTED TRANSFEREE" shall mean (i) any Affiliate of JJDC, as applicable, or
(ii) any other Person who acquires Company Securities from JJDC in a transaction
that is exempt from registration under the Securities Act of 1933, as amended
(the "Securities Act"), other than under Rule 144 thereunder or a similar rule
or regulation providing for the sale of securities to the public.
"PERSON" shall mean an individual, partnership, joint venture, corporation,
trust or unincorporated organization, a government or any department, agency or
political subdivision thereof, or any other entity.
"PURCHASE AGREEMENT" shall mean the Stock Purchase Agreement dated as of
September 14, 1998 by and between the Company and JJDC.
"RESTRICTED SECURITIES" shall mean Company Securities issued pursuant to the
Purchase Agreement, including Common Stock and any securities convertible,
exercisable or exchangeable for or into Common Stock.
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1.02 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company Hereby
represents and warrants to JJDC as follows, as of the date hereof:
a) ORGANIZATION. The Company is a corporation duly organized,
validly existing and is in good standing under the laws of
Delaware, and has all the requisite corporate power and authority
do own and lease its properties, to carry on its business as
presently conducted and as proposed to be conducted and to carry
out the transaction contemplated hereby.
b) AUTHORIZATION. The execution, delivery and performance by the
Company of this Agreement has been duly authorized by all
requisite corporate actions; and this agreement has been duly
executed and delivered by the Company and is a valid and binding
obligation of the company, enforceable against it in accordance
with its respective terms.
c) NO CONFLICTS. The execution, delivery and performance by the
Company of this Agreement, and compliance with the provisions
hereof by the Company, will not (a) violate any provision of
applicable law, statute, rule or regulation applicable to the
Company or any ruling, writ, injunction, order, judgment or
decree of any court, arbitrator, administrative agency or other
governmental body applicable to the Company or any of its
respective properties or assets or (b) conflict with or result in
any breach of any of the terms, conditions or provisions of, or
constitute (with notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation or
acceleration) under, or result in the creation of, any
Encumbrance (as defined below) upon any of the properties or
assets of the Company under the charter or organizational
documents of either or any material contract to which the Company
is a party, except where such violation, conflict or breach would
not, individually or in the aggregate, have a material adverse
effect on the Company. As used herein, "Encumbrance" shall mean
any liens, charges, Encumbrances, equities, claims, options,
proxies, pledges, security interests, or other similar rights of
any nature.
d) APPROVALS. No permit, authorization, consent or approval of or
by, or any notification of or filing with, any person or entity
(governmental or private) is required in connection with the
execution, delivery or performance of this Agreement by the
Company.
1.03 REPRESENTATIONS AND WARRANTIES OF JJDC. JJDC hereby represents and
warrants to the Company as follows:
a) ORGANIZATION. JJDC is a company duly organized, validly existing
and, if applicable, in good standing under the laws of its
jurisdiction of organization and has all the requisite corporate
power and authority to own and lease its properties, to carry on
its business as presently conducted and as proposed to be
conducted and to carry out the transactions contemplated hereby.
b) AUTHORITY. JJDC has full legal right, power and authority to
enter into this Agreement and to perform its obligations
hereunder, which have been duly authorized and by all requisite
corporate action. This agreement is the valid and binding
obligation of JJDC, enforceable against it in accordance with its
terms.
c) NO CONFLICTS. The execution, delivery and performance by JJDC of
this Agreement and compliance with the provisions hereof by JJDC
will not (a) violate any provision of applicable law, statute,
rule or regulation applicable to JJDC or any ruling, writ,
injunction, order, judgment or decree of any court, arbitrator,
administrative agency or other governmental body applicable to
JJDC or any of its properties or assets or (b) conflict with or
result in any breach of any of the terms, conditions or
provisions of, or constitute (with
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notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under, or
result in the creation of, any encumbrance (as defined below)
upon any of the properties or assets of JJDC under, the charter
or organizational documents of either or any material contract to
which JJDC is a party, except where such violation, conflict or
breach would not, individually or in the aggregate, have a
material adverse effect on JJDC. As used herein, "Encumbrance"
shall mean any liens, charges, Encumbrances, equities, claims,
options, proxies, pledges, security interests, or other similar
rights of any nature.
d) APPROVALS. No permit, authorization, consent or approval of or
by, or any notification of or filing with, any person or entity
(governmental or private) (collectively, "Approval") is required
in connection with the execution, delivery or performance of this
Agreement by JJDC.
ARTICLE II
TRANSFERS OF RESTRICTED SECURITIES
2.01 GENERAL. JJDC shall not, directly or indirectly, sell, assign, pledge,
encumber, hypothecate or otherwise transfer (in each case, a "Transfer") any
Company Securities except in accordance with this Agreement. The Company shall
not, and shall not permit any transfer agent or registrar for the Company
Securities to, transfer upon the books of the Company any Company Securities
from JJDC to any transferee (as hereinafter defined), in any manner, except in
accordance with this agreement, and any purported transfer not in compliance
with this Agreement shall be void.
2.02 NO VIOLATIONS OR BREACH. Notwithstanding any other provision of this
Agreement, JJDC shall not, directly or indirectly, Transfer any Restricted
Securities at any time if such action would constitute a violation of any
federal or state securities or blue sky laws or a breach of the conditions to
any exemption from registration of Restricted Securities under any such laws or
a breach of any undertaking or agreement of JJDC entered into pursuant to such
laws or in connection with obtaining an exemption thereunder.
ARTICLE III
RIGHT OF FIRST OFFER
3.01 TRANSFERS BY JJDC.
a) NOTICE OF INTENTION. If at any time JJDC shall desire to Transfer any
Restricted Securities owned by it in any transaction or series of
related transactions, then JJDC shall deliver prior written notice of
its desire to Transfer (a "Notice of Intention") to the Company
setting forth JJDC's desire to make such Transfer, the number and
class of Company Securities proposed to be transferred (the "Offered
Shares") and the proposed form of transaction (the "Transaction
Proposal"), together with the price (which may at J&J's discretion be
a formula based upon market price at date of agreement or purchase, or
other variable formula) at which JJDC proposes to Transfer the Offered
Shares (the "Offer Price"); provided that this Article III shall not
apply to any proposed Transfer of Restricted Securities: (i) in a
single transaction or series of related transactions of less than
50,000 shares (subject to appropriate adjustment for stock splits,
stock dividends, combinations and other recapitalizations) or (ii)
pursuant to a sale effected through a public trading market, including
NASDAQ National Market, where JJDC has no prior arrangement or
understanding regarding the Transfer with the ultimate purchaser of
Restricted Securities or to a broker or dealer.
b) NOTICE OF EXERCISE. Upon receipt of the Notice of Intention, the
Company shall have the right to purchase at the Offer Price the
Offered Shares, exercisable by the delivery of notice to JJDC (the
"Notice of Exercise") within three (3) business days from the date of
receipt of the Notice of Intention. If no such Notice of Exercise has
been delivered by the Company within such three (3)
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business-day period, or such Notice of Exercise does not relate to all
the Offered Shares covered by the Notice of Intention, then JJDC shall
be entitled to Transfer the Offered Shares to the intended Transferee,
on terms not materially less favorable to JJDC than those described in
the Notice of Intention, for a period of sixty (60) days.
c) OBLIGATION TO SELL. In the event that the Company exercises its right
to purchase Offered Shares in accordance with Section 3.01(b), then
JJDC must sell the Offered Shares to the Company in the amounts set
forth in the Notice of Intention, after not less than five (5)
business and not more than fifteen (15) business days from the date of
the delivery of the Notice of Exercise.
d) TERMINATION. The rights and obligations of JJDC and the Company
pursuant to the Right of First Offer provided herein shall terminate
with respect to each such party on the earlier of (i) the tenth
anniversary of the date hereof and (ii) the first date that JJDC and
its Permitted Transferrees, beneficially own, in the aggregate,
Company Securities representing less than One Percent (1%) of the
Fully Diluted Common Stock.
ARTICLE IV
STANDSTILL
4.01 STANDSTILL BY JJDC. Subject to the terms of this Section 4.01, JJDC
agrees that, upon execution of this Agreement until the earlier of (i) ten (10)
years from the date hereof, or (ii) one (1) year following the effective date of
termination of the License Agreement by Ortho, it will not, nor will it permit
any of its Affiliates (including Ortho and J&J) to, without the prior written
consent of the Company:
a) (i) acquire, directly or indirectly, by purchase or otherwise, of
record or beneficially, other than by the Purchase Agreement, any
securities of the Company or rights or options to acquire any
securities from any holder of such securities if after such
acquisition (and giving effect to the exercise of any such rights or
options) JJDC and its Affiliates, including Ortho and J&J, would own
capital stock of Company having ten percent (10%) or more of the
voting power of the outstanding capital stock of Company; PROVIDED,
HOWEVER, that neither (1) the purchase of the Shares pursuant to the
Purchase Agreement nor (2) subsequent reductions in the number of
shares of outstanding capital stock of Company (or rights or options
therefor) shall be deemed to have caused a violation of this Section
4.01(a)(i);
(ii) to the extent JJDC and/or its Affiliates (including Ortho and
J&J) own(s), beneficially or of record, securities of Company
constituting ten percent (10%) or more of the voting power of the
outstanding capital stock of Company and such securities include
securities of Company other than those purchased pursuant to the
Purchase Agreement, JJDC and/or its Affiliates (including Ortho and
J&J) shall be deemed to own "PROHIBITED SECURITIES." JJDC agrees that
neither it nor any of its Affiliates (including Ortho and J&J) shall
(and neither it nor any of its Affiliates (including Ortho and J&J)
shall be entitled to) vote any Prohibited Securities with respect to
any matter subject to the vote or written consent of Company's
stockholders (PROVIDED, HOWEVER, that the foregoing shall not be
deemed to limit Company's remedies in the event that the Prohibited
Securities were acquired in violation of this Section 4.01;
(iii) JJDC hereby covenants and agrees that during the term provided
for in Section 3.01, it will provide written notice to Company of any
purchase, other acquisition on the open market or in private
transactions, by JJDC or any of its Affiliates (including Ortho and
J&J) of any securities of Company (or if JJDC or such Affiliates
shall direct any third party to take any such actions on behalf of
JJDC or such Affiliates). Such notice shall be transmitted to Company
by facsimile (with telephonic notice) within three (3) business days
after any such transaction on the open
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market or within ten (10) business days after any such private transaction and
shall specify the person or entity effecting the transaction, the date of such
transaction, the number of securities and the price per security with respect to
such transaction;
b) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" (as such terms are defined or used in
Regulation 14A of the Exchange Act) to vote, or seek to advise or
influence any person with respect to the voting of, any securities of
Company, or become a "participant" in any "election contest" (as such
terms are used or defined in Regulation 14A of the Exchange Act)
relating to the election of directors of Company;
c) deposit any securities of Company in a voting trust or subject them to
a voting agreement or other agreement of similar effect (other than a
revocable proxy);
d) initiate, propose or otherwise solicit any stockholder for the
approval of one or more stockholder proposals at any time, or induce
or attempt to induce any other person to initiate any stockholder
proposal;
e) make any public announcement with respect to, or submit a proposal
for, or offer of (with or without conditions) any extraordinary
transaction involving the Company or any of its securities or assets;
f) otherwise act or seek to control or influence the management, Board of
Directors or policies of the Company;
g) form, join or in any way participate in a "group" (within the meaning
of Section 13(d)(3) of the Exchange Act) or otherwise act in concert
with any person for the purpose of acquiring, holding, voting or
disposing of any securities of Company;
h) request the Company (or its directors, officers, employees or agents),
directly or indirectly, to amend or waive any of the provisions
contained in this Section 4.01;
i) take any action individually or jointly with any partnership, limited
partnership, syndicate, or other group or assist any other person,
corporation, entity or group in taking any action it could not take
individually under the terms of this Section 4.01; or
j) take any action that could reasonably be expected to require the
Company to make a public announcement regarding the possibility of any
of the events described in clauses (a) through (i) above.
Notwithstanding the foregoing, if a third party makes a tender offer or exchange
offer for 40% or more of Company's outstanding voting securities, or the Company
publicly announces a transaction pursuant to which a third party not a
stockholder of Company on the date hereof is or will acquire, whether through
merger, tender offer or exchange offer, 40% or more of Company's voting
securities or all or substantially all of Company's assets, then the
restrictions set forth in this Section 4.01 shall lapse until such time, if any,
as such transaction or transactions are withdrawn or abandoned, at which time
such restrictions shall be reinstated. Any reinstatement of such restrictions
shall not affect JJDC's ability to continue to pursue any transaction it
announced prior to such reinstatement; PROVIDED, that such announcement did not
violate this Section 4.01, and PROVIDED FURTHER that such transaction is
completed within six (6) months from the date of announcement.
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ARTICLE V
MISCELLANEOUS
5.01 TERM. Except as otherwise provided herein, this Agreement shall
terminate upon the sale of all Company Securities now owned by JJDC (or its
respective Permitted Transferees) in compliance with the provisions hereof to
parties not bound hereby, as provided herein.
5.02 INJUNCTIVE RELIEF. The parties hereto hereby agree and acknowledge that
it will be impossible to measure in money the damages that would be suffered if
any party should breach any obligation, covenant or representation herein
imposed or made, and that, in the event of such breach, a non-breaching party
will be irreparably damaged and will not have an adequate remedy at law. Any
such non-breaching party shall, therefore, be entitled to injunctive relief,
including specific performance, to enforce such obligations, and if any action
should be brought in equity to enforce any of the provisions of this Agreement,
none of the other parties hereto shall raise the defense that there is an
adequate remedy at law.
5.03 NOTICES. All notices, other communications or documents provided for or
permitted to be given hereunder, shall be made in writing and shall be given
either personally by hand-delivery, by telex or facsimile transmission, by
mailing the same in a sealed envelope, certified first-class mail, postage
prepaid, return receipt requested, or by air courier guaranteeing overnight
delivery:
(i) if to the Company to:
Biocryst Pharmaceuticals, Inc.
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Ph.D.
with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
(ii) if to JJDC:
Xxxxxxx & Xxxxxxx Development Corporation
Xxx Xxxxxxx & Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxx Xxxxxx 00000
Telecopier: (000) 000-0000
Attention: President
with a copy to:
Xxxxxxx & Xxxxxxx
Xxx Xxxxxxx & Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxx Xxxxxx 00000
Telecopier: (000) 000-0000
Attention: Office of General Counsel
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JJDC and Company, by written notice given to the other in accordance with this
Section 5.03 may change the address to which notices, other communications or
documents are to be sent to JJDC or Company. All notices, other communications
or documents shall be deemed to have been duly given when received.
5.04 ASSIGNMENT. This Agreement may not be assigned by JJDC or Company hereto
without the prior written consent of the other, which consent shall not be
unreasonably withheld, conditioned or delayed. Subject to the foregoing, this
Agreement shall inure to the benefit of and be binding upon the parties and
successors and assigns of each of the parties. If JJDC shall acquire any
Restricted Securities in any manner, whether by operation of law or otherwise,
such Restricted Securities shall be held subject to all of the terms of the
Agreement.
5.05 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
principals of conflicts of laws.
5.06 HEADINGS. The headings in this Agreement are inserted for convenience of
reference only and shall not constitute a part of this Agreement.
5.07 SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
5.08 AMENDMENTS AND WAIVER. No provision of this Agreement may be amended,
nor performance of any covenant or agreement waived, except by a written
instrument executed by each of the Company and JJDC. Neither a failure nor a
delay in exercising any right, power or privilege of a party hereunder shall
operate as a waiver of, or a consent to the modification of, the terms hereof
unless given by that party in writing. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any preceding or succeeding breach.
5.09 INSPECTION. So long as this Agreement shall be in effect, this Agreement
shall be made available for inspection by any stockholder of the Company at the
principal offices of the Company.
5.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which when
taken together shall constitute one and the same Agreement.
5.11 ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof and supercede all prior
agreements and understandings among the parties with respect thereto.
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IN WITNESS WHEREOF, each of the undersigned has duly executed this
Stockholder's Agreement as of the date first written above.
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
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