SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: February 17, 2004
BioCryst Pharmaceuticals, Inc.
(Exact Name of Registrant as Specified in Charter)
Delaware 000-23186 62-1413174
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification #)
2190 Parkway Lake Drive, Birmingham, Alabama 35244
(Address of Principal Executive Office)
(205) 444-4600
(Registrant's telephone number, including area code)
Item 5. Other Events and Regulation FD Disclosure.
On February 4, 2004, Registrant entered into a Placement Agency Agreement
with Leerink Swann & Company in connection with a registered direct offering of
3,571,667 shares of its common stock at an offering price of $6.00 per share.
The common stock will be issued pursuant to a prospectus supplement filed with
the Securities and Exchange Commission pursuant to Rule 424(b)(2) of the
Securities Act of 1933, as amended, the Securities Act, in connection with a
shelf takedown from the Company's registration statement on Form S-3
(333-111226), filed on December 16, 2003 and which became effective on January
5, 2004.
The Placement Agency Agreement is being filed as Exhibit 1.1 to this
Current Report on Form 8-K and incorporated herein by reference into the shelf
registration statement.
On February 17, 2004, Registrant entered into a Stock Purchase Agreement
with Caduceus Private Investments II, LP, Caduceus Private Investments II (QP),
LP and UBS Juniper Crossover Fund, L.L.C. As part of this agreement, Registrant
has granted these investors the right to appoint a member to its board of
directors effective as of the closing of the offering. The Stock Purchase
Agreement is being filed as Exhibit 10.1 to this Current Report on Form 8-K and
incorporated herein by reference into the shelf registration statement.
On February 17, 2004, Registrant issued a press release announcing the
execution of the Placement Agency Agreement and a registered direct offering of
its shares of common stock. The press release is being filed as Exhibit 99.1 to
this Current Report on Form 8-K and incorporated herein and incorporated by
reference into the shelf registration statement.
Neither the filing of any press release as an exhibit to this
Current Report on Form 8-K nor the inclusion in such press release of a
reference to Registrant's Internet address shall, under any circumstances, be
deemed to incorporate the information available at such Internet address into
this Current Report on Form 8-K. The information available at Registrant's
Internet address is not part of this Current Report on Form 8-K or any other
report filed by Registrant with the Securities and Exchange Commission.
Item 7. Exhibits.
Exhibit No. Description
1.1 Placement Agency Agreement, dated as of February
4, 2004, by and among BioCryst Pharmaceuticals,
Inc. and Leerink Swann & Company.
10.1 Stock Purchase Agreement, dated as of February 17,
2004, by and among BioCryst Pharmaceuticals, Inc.,
Caduceus Private Investments II, LP, Caduceus
Private Investments II (QP), LP and UBS Juniper
Crossover Fund, L.L.C.
99.1 Press release dated February 17, 2004 entitled
"BioCryst To Raise Approximately $21.4 Million
Through Sale of Common Stock".
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: February 17, 2004 BioCryst Pharmaceuticals, Inc.
By: /s/ Charles E. Bugg
-------------------------------------
Charles E. Bugg, Ph.D.
Chairman and Chief Executive Officer
By: /s/ Michael A. Darwin
-------------------------------------
Michael A. Darwin
Chief Financial Officer and Chief
Accounting Officer
EXHIBIT INDEX
Item Description
1.1 Placement Agency Agreement, dated as of February 4, 2004, by
and among BioCryst Pharmaceuticals, Inc. and Leerink Swann &
Company.
10.1 Stock Purchase Agreement, dated as of February 17, 2004, by
and among BioCryst Pharmaceuticals, Inc., Caduceus Private
Investments II, LP, Caduceus Private Investments II (QP), LP
and UBS Juniper Crossover Fund, L.L.C.
99.1 Press release dated February 17, 2004 entitled "BioCryst To
Raise Approximately $21.4 Million Through Sale of Common
Stock".
Exhibit 1.1
[LETTERHEAD LEERINK SWANN & COMPANY]
February 4, 2004
Charles E. Bugg, Ph.D.
Chairman, Chief Executive Officer
BioCryst Pharmaceuticals, Inc.
2190 Parkway Lake Drive
Birmingham., AL 35244
Dear Dr. Bugg:
1. This letter agreement (the "Agreement") confirms our understanding that
BioCryst Pharmaceuticals, Inc. ("Company") has engaged Leerink Swann &
Company ("Leerink") to act as exclusive agent to the Company for a period
of 30 days, commencing as of the date hereof, for the sale by the Company
of up to $25,000,000 of the common stock of the Company (the "Common
Stock"), which shall not exceed 20% of the common stock outstanding before
the issuance (the "Securities" or the "Shares") of the Company (the
"Proposed Financing").
The Proposed Financing shall occur through a directed registered sale
under the Securities Act of 1933, as amended (the "Act") and in compliance
with applicable state securities laws. Our undertaking herein shall be
subject to, among other things, the terms and conditions set forth in this
Agreement, our due diligence investigation of the Company, the continuance
of the Company without material adverse change, the absence of unfavorable
market conditions in general and our continued satisfaction with the
results of our ongoing review of the Company's business and affairs. It is
understood that execution of this Agreement does not assure the successful
completion of the Proposed Financing.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-111226), which
was declared effective on January 5, 2004 (the "Effective Date"), covering
the registration of, among other things, the Securities under the
Securities Act and including the related preliminary prospectus (the "Base
Prospectus"). Promptly after execution and delivery of an agreement by the
Company with Purchasers (as defined below) for purchase of the Shares in
the Proposed Financing, the Company will prepare and file with the
Commission a prospectus supplement specifically relating to the Securities
(the "Prospectus Supplement") pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act (the
"Regulations"). The registration statement, as amended to the date of this
Agreement, by any post-effective amendment and by any Prospectus
Supplement, and including the exhibits thereto, schedules, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act, at the time that it became effective, is
herein called the "Registration Statement." The Base Prospectus and the
Prospectus Supplement, including the documents incorporated by reference
therein, are herein called, collectively, the "Offering Materials."
2. Our services to the Company will include: (i) assistance in the
preparation of the Prospectus Supplement; (ii) assistance in structuring
the Proposed Financing and its terms; (iii) subject to the provisions of
Section 10, identifying and contacting selected qualified purchasers (the
"Purchasers") of the Proposed Financing and furnishing them, on behalf of
the Company, with copies of the Offering Materials; and (iv) negotiating
under your guidance the financial aspects of the Proposed Financing.
Set forth on Exhibit B attached hereto is a list of institutional
investors who have previously expressed an interest in further investment
in the Company (the "Company Purchasers"). Also set forth on Exhibit B
attached hereto is a list of other potential investors where prior
contacts have been initiated with the assistance of other investment banks
(the "Other Purchasers").
The Company may decline to complete the Proposed Financing in its sole
discretion and will have full discretion as to which and how many Proposed
Purchasers to accept.
3. As compensation for the services to be provided by Leerink hereunder,
except as described below, the Company agrees to pay to Leerink at the
Closing (defined below) a cash fee equal to 6% of the gross proceeds of
the sale of the Common Stock. For sales to Other Purchasers, Leerink
agrees to reallocate up to 2% of the 6% fee to qualified investment banks
as requested by the Company. If the Proposed Financing is consummated by
means of more than one Closing, Leerink shall be entitled to the fees
provided herein with respect to each such Closing. The closing of the
Proposed Financing (the "Closing") shall take place on the date or dates
that the Common Stock is delivered to the Purchasers against payment
therefor.
Notwithstanding the foregoing, if any investors in the Proposed Financing
are Company Purchasers, the Company shall pay Leerink at the Closing a
cash fee equal to 4% of the gross proceeds of the Proposed Financing
invested by such Company Purchasers.
In addition and regardless of whether the Proposed Financing is
consummated, upon request by Leerink from time to time, the Company shall
reimburse Leerink for all reasonable out-of-pocket expenses incurred by
Leerink in connection with its engagement hereunder, including reasonable
fees and expenses of its counsel, not to exceed in the aggregate $25,000.
4. The Company acknowledges and agrees that Leerink has been retained solely
to provide the advice or services set forth in this Agreement. Leerink
shall act as an independent contractor, and any duties of Leerink arising
out of its engagement hereunder shall be owed solely to the Company. As
Leerink will be acting on your behalf in such capacity, it is our firm
practice to be indemnified in connection with engagements of this type and
the Company agrees to the indemnification agreement attached hereto as
Exhibit A and the other obligations as set forth in paragraph 13 of this
Agreement.
5. The Company will promptly, from time to time, take such action as Leerink
may reasonably request to qualify the Securities under the securities laws
of each of the states, as applicable, as Leerink may reasonably request
and to comply with such laws so as to permit such offers and sales;
provided that the Company shall not be required to qualify as a foreign
corporation in which it is not so qualified, to execute a general consent
to service of process in any jurisdiction or to subject itself to taxation
in any jurisdiction. Any applicable filings will be prepared by Leerink's
outside counsel, whose fees and disbursements in connection therewith
shall be for the account of the Company and which fees and disbursements
shall be in addition to the reimbursable expenses set forth in paragraph 3
of this Agreement.
6. The Company will cause to be furnished to Leerink at the Closing, copies
of such agreements, opinions, certificates and other documents delivered
at the Closing as Leerink may reasonably request including, without
limitation, an opinion of Company counsel to the effect that the
Securities have been duly authorized and, when delivered to the Purchasers
and Company Purchasers against payment therefor in accordance with the
Offering Materials, will be validly issued, fully paid and non-assessable.
7. The Company will also make available to Leerink all financial and other
information concerning the Company's business and operations and the
Proposed Financing which Leerink reasonably requests and will provide
access to the Company's officers, directors, employees, independent
accountants and legal counsel. Leerink shall be entitled to rely without
investigation upon all information that is available from public sources
as well as all other information supplied to it by or on behalf of the
Company or the Company's other advisors and
shall not in any respect be responsible for the accuracy or completeness
of, or have any obligation to verify, the same or to conduct any appraisal
of assets. To the extent consistent with legal requirements and except as
otherwise set forth in the Offering Materials, all information given to
Leerink by the Company, unless publicly available or otherwise available
to Leerink without restriction or breach of any confidentiality agreement
("Confidential Information"), will be held by Leerink in confidence and
will not be disclosed to anyone other than Leerink's agents and advisors
without the Company's prior approval or used for any purpose other than
those referred to in this Agreement; provided that nothing herein shall,
in itself, prevent Leerink from engaging in future transactions involving
companies in a similar industry to the Company or, provided no
Confidential Information is directly used in connection with such
engagement, be deemed to violate any of the terms hereof.
8. The Company, during the period when the Offering Materials are required to
be delivered under the Securities Act and the Regulations or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), will
file all reports and other documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the
time periods required by the Exchange Act and the regulations promulgated
thereunder.
9. Any advice, written or oral, provided by Leerink pursuant to this
Agreement will be treated by the Company as confidential, will be solely
for the information and assistance of the Company in connection with the
Proposed Financing and may not be quoted, nor will any such advice or the
name of Leerink be referred to, in any report, document, release or other
communication, whether written (including, without limitation, the
Offering Materials) or oral, prepared, issued or transmitted by the
Company or any affiliate, director, officer, employee, agent or
representative of any thereof, without, in each instance, Leerink's prior
written consent.
10. Leerink shall identify to the Company, in writing and in advance, each
potential Purchaser that it intends to contact with respect to the
Proposed Financing (the "Leerink Purchasers"). The Company shall have the
sole right to approve or reject each proposed Leerink Purchaser, and
Leerink shall not contact any proposed Leerink Purchaser that the Company
has rejected. Attached hereto as Exhibit C is a list of Leerink Purchasers
(and their affiliated entities) approved by the Company as of the date
hereof. Exhibit C shall be updated from time to time as additional Leerink
Purchasers are approved by the Company (collectively, all original and
additional approved Leerink Purchasers referred to as "Approved Leerink
Purchasers"). All Approved Leerink Purchasers and their affiliated
entities shall be deemed to be included on Exhibit C for purposes of this
Agreement. The Company shall identify to Leerink in writing each potential
Company Purchaser that it has contacted or intends to contact with respect
to the Proposed Financing. At or promptly following the Closing, the
parties shall update Exhibit C to list all Purchasers (not including
Company Purchasers) in the Proposed Financing and all additional parties
contacted by Leerink who did not participate in the Proposed Financing.
Leerink shall communicate to the Company, orally or in writing, each
reasonable offer to purchase Securities received by it as agent of the
Company. The Company shall have the sole right to accept offers to
purchase the Securities and may reject any such offer, in whole or in
part.
11. This Agreement may be terminated by either the Company or Leerink at any
time upon receipt of written notice to that effect by the other party. In
addition, if (i) the Company consummates the Proposed Financing of at
least $20 million of gross proceeds (whether through one closing or a
series of related closings) (the "Minimum Financing") within the original
30 day engagement of Leerink hereunder and (ii) at any time prior to 180
days after the termination or expiration of this Agreement the Company
consummates a private financing transaction with any Company Purchaser,
Other Purchaser or Approved Leerink Purchaser or any of their affiliated
entities, then Leerink will be entitled to payment in full of the
compensation described in the third paragraph of this Agreement; provided,
that, in the event that the Company does not consummate the Minimum
Financing within the original 30 day engagement of Leerink hereunder, then
the 180 day period set forth above shall be reduced to 90 days. Upon the
expiration or termination of this Agreement, Leerink will be entitled to
prompt reimbursement of all its reasonable out-of-pocket expenses and fees
as described above. Promptly following any termination or expiration of
this Agreement, Leerink will provide the Company with written notice of
the parties contacted by Leerink regarding the Proposed Financing during
the term of our engagement. The indemnity and other provisions contained
in Exhibit A will also remain operative and in full force and effect
regardless of any expiration or termination of this Agreement.
12. This Agreement shall not give rise to any express or implied commitment by
Leerink to purchase or place any securities of the Company.
13. The Company acknowledges that Leerink is acting as placement agent and
advisor for the Company in the transactions contemplated by this
engagement, and Leerink shall be entitled to the benefits of the indemnity
provided in Exhibit A.
14. This Agreement incorporates the entire understanding of the parties and
supersedes all previous agreements relating to the subject matter hereof.
The benefits of this Agreement shall inure to the parties hereto, their
respective successors and assigns and to the Indemnified Persons hereunder
and their respective successors and assigns, and the obligations and
liabilities assumed in this Agreement shall be binding upon the parties
hereto and their respective successors and assigns. Notwithstanding
anything contained herein to the contrary, none of the parties hereto
shall assign any of its obligations hereunder without the prior written
consent of each of the other parties hereto.
15. All notices provided hereunder shall be given in writing and either
delivered personally or by overnight courier service or sent by certified
mail, return receipt requested, if to Leerink, to Leerink Swann & Company,
One Federal Street, 37th Floor, Boston, Massachusetts 02110, Attention:
Stuart Barich, with a copy to Mintz Levin Cohn Glovsky and Popeo, PC, 666
Third Avenue, 25th Floor, New York, New York 10017, Attention: Ivan K.
Blumenthal, and if to the Company, to BioCryst Pharmaceuticals, Inc., 2190
Parkway Lane Drive, Birmingham, AL 35244, Attention: Charles E. Bugg,
Ph.D., with a copy to Holme Roberts & Owen LLP, 1700 Lincoln Street, Suite
4100, Denver, Colorado 80203, Attention: Richard R. Plumridge. Any notice
delivered personally shall be deemed given upon receipt; any notice given
by overnight courier shall be deemed given on the next business day after
delivery to the overnight courier; and any notice given by certified mail
shall be deemed given upon the second business day after certification
thereof.
16. The failure or neglect of either of the parties hereto to insist, in any
one or more instances, upon the strict performance of any of the terms or
conditions of this Agreement, or its waiver of strict performance of any
of the terms or conditions of this Agreement, shall not be construed as a
waiver or relinquishment in the future of such term or condition by such
party, but the same shall continue in full force and effect. Any waiver
must be in writing.
17. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be
fully performed therein, without regard to conflicts of law principles.
The parties hereby expressly waive all rights to trial by jury in any
suit, action or proceeding arising under this Agreement.
18. This Agreement may not be modified or amended except in a writing duly
executed by the parties hereto.
19. At any time after the consummation or other public announcement of the
Proposed Financing, Leerink may place an announcement in such newspapers
and publications as it may choose, stating that Leerink has acted as
exclusive financial advisor and/or placement agent in connection with the
Proposed Financing.
20. For the convenience of the parties, this Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original
instrument, but all of which taken together shall constitute one and the
same agreement. Facsimile signatures shall be deemed to be original
signatures for all purposes.
21. After reviewing this Agreement, please confirm that the foregoing is in
accordance with your understanding by signing and returning the duplicate
of this letter attached hereto, whereupon it shall be our binding
Agreement.
Very truly yours,
Leerink, Swann & Company
By: /s/Stuart Barich
--------------------
Stuart Barich
Managing Director
Corporate Finance
Accepted and agreed to this 4th day of February, 2004.
BioCryst Pharmaceuticals, Inc.
By: /s/ Charles E. Bugg
-------------------
Name: Charles E. Bugg
Title: Chairman & Chief Executive Officer
Exhibit 10.1
STOCK PURCHASE AGREEMENT
BioCryst Pharmaceuticals, Inc.
2190 Parkway Lake Drive
Birmingham, AL 35244
The undersigned investors (each an "Investor" and collectively the "Investors"),
hereby confirm their agreement with you as follows:
1. This Stock Purchase Agreement (the "Agreement") is made as of the date set
forth below between BioCryst Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), and the Investors listed on Exhibit A
2. The Company has authorized the sale and issuance of up to 3,571,667 shares
(the "Shares") of common stock of the Company, $0.01 par value per share (the
"Common Stock"), subject to adjustment by the Company's Board of Directors, to
certain investors in a registered direct offering (the "Offering").
3. The Company and the Investors, severally and not jointly, agree that the
Investors will purchase from the Company and the Company will issue and sell to
the Investors an aggregate of 1,666,667.00 shares, for a purchase price of $6.00
per share, or an aggregate purchase price of $10,000,002.00, pursuant to the
Terms and Conditions for Purchase of Shares attached hereto as Annex I and
incorporated herein by this reference as if fully set forth herein. Unless
otherwise requested by the Investors, certificates representing the Shares
purchased by the Investors will be registered in each Investor's name and
address as set forth below.
4. Each Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years with
the Company or its affiliates, (b) neither it, nor any group of which it is a
member or to which it is related, beneficially owns (including the right to
acquire or vote) any securities of the Company and (c) it has no direct or
indirect affiliation or association with any NASD member. Exceptions:
- --------------------------------------------------------------------------------
(If no exceptions, write "none." If left blank, response will be deemed to be
"none.")
Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
Dated as of: February 17, 2004 (the "Execution
Date")
CADUCEUS PRIVATE INVESTMENTS
II, LP, by its General Partner OrbiMed Capital II LLC
By: /s/ Eric A. Bittelman
--------------------------------------------
Name: Eric A. Bittelman
--------------------------------------------
Title:
--------------------------------------------
Address:
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CADUCEUS PRIVATE INVESTMENTS II (QP), LP,
by its General Partner OrbiMed Capital II LLC
By: /s/ Eric A. Bittelman
--------------------------------------------
Name: Eric A. Bittelman
--------------------------------------------
Title:
--------------------------------------------
Address:
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UBS Juniper Crossover Fund, L.L.C.,
by its Managing Member OrbiMed Advisors LLC
By: /s/ Eric A. Bittelman
--------------------------------------------
Name: Eric A. Bittelman
--------------------------------------------
Title:
--------------------------------------------
Address:
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AGREED AND ACCEPTED:
BIOCRYST PHARMACEUTICALS, INC.
By: /s/ Michael A. Darwin
--------------------------------------------
Title: Chief Financial Officer
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of the Shares; Registration. Subject to the
terms and conditions of this Agreement, the Company has authorized the sale of
the Shares. The Shares have been registered on a Form S-3, File No. 333-111226
(the "Registration Statement"), which registration statement has been declared
effective by the Securities and Exchange Commission (the "Commission") on
January 5, 2004, has remained effective since such date and is effective on the
date hereof.
2. Agreement to Sell and Purchase the Shares; Subscription Date;
Additional Agreements.
2.1 At the Closing (as defined in Section 3), the Company will sell
to the Investors, and the Investors, severally and not jointly, will purchase
from the Company, upon the terms and conditions hereinafter set forth, the
respective number of Shares set forth opposite each Investor's name on Exhibit A
hereto ("Exhibit A") at the purchase price set forth on such Exhibit A.
2.2 The Company may enter into this same or a similar form of Stock
Purchase Agreement with certain other investors (the "Other Investors") and may
complete sales of Shares to them. (The Investors and the Other Investors are
hereinafter sometimes collectively referred to as the "Investors," and this
Agreement and the Stock Purchase Agreements executed by the Other Investors are
hereinafter sometimes collectively referred to as the "Agreements.")
2.3 The Investors acknowledge that: (a) the Company has retained
Leerink Swann & Company as placement agent (in its capacity as placement agent
of the Shares, the "Placement Agent"); (b) the Company intends to pay the
Placement Agent a fee in respect of the sale of Shares to the Investors; and (c)
the offering of the Shares is not a firm commitment underwriting.
2.4 (a) The Investors will have the right to appoint a member to the
Company's Board of Directors as of the Closing Date ("Investor Director"). So
long as the Investors in the aggregate continue to own not less than 830,000
shares of Common Stock (appropriately adjusted for stock splits, reverse stock
splits, stock dividends and the like), the Investor Director shall have a right
to serve on the Board of Directors for a period of eighteen (18) months from the
Closing Date and may resign from the Board of Directors at any time without
notice. The Investor Director may not be removed from the Board of Directors by
the Company without "Cause" as defined in subsection (b) below.
(b) For purposes of this Section 2.4, the following shall
constitute "Cause": (i) any action by the Investor Director constituting fraud
or embezzlement in the course of his tenure on the Board of Directors, (ii) any
conviction of the Investor Director of a felony which would materially and
adversely interfere with the Investor Director's ability to perform his or her
duties as a member of the Board of Directors; (iii) continued gross neglect or
willful refusal by the Investor Director to perform his or her duties hereunder
for a period of ten (10) days following notice to the Investor Director of such
inaction; or (iv) a material breach by the Investor Director of any other
material obligations under this Agreement or the Company's By-laws if such
breach is not curable or, if curable, is not cured within thirty (30) days after
written notice thereof by the Company to the Investor Director.
2.5 Prior to Closing, the Company shall provide the Investors with
an Opinion of Company's legal counsel, reasonably satisfactory to the Investors,
which states that (i) the transaction contemplated by this Agreement has been
duly authorized by the Company, and (ii) the issuance and sale of the Shares to
the Investors under this Agreement has been duly registered under the Securities
Act of 1933, as amended.
3. Delivery of the Shares at Closing. The completion of the purchase and
sale of the Shares (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 February 17, 2004 (the "Closing Date"), but in no event
earlier than such date and time as the escrow agent (as identified on Exhibit C)
shall have received all of the executed Stock Purchase Agreements. The executed
Stock Purchase Agreements and the purchase price transferred by the Investors
(jointly the "Escrowed Property") will be held by the Escrow Agent until the
Closing is confirmed by the Company and Placement Agent. If the Closing does not
occur, the funds will be returned to the Investors. All wires should be sent to
Mintz Levin Cohn Ferris Glovsky and Popeo PC, as Escrow Agent, Fleet Bank of
Massachusetts, N.A., Malden MA 02148, ABA#011000138, Account Name: Mintz Levin
Cohn Ferris Glovsky and Popeo PC IOLTA Account, Account Number 534-66888,
Reference: Leerink Swann: 22437-045. At the Closing, upon written instruction of
the Company and the Placement Agent, the escrow agent shall release the Escrowed
Property (as defined on Exhibit C) to the Company and the Company shall arrange
delivery to the Investors one or more stock certificates representing the number
of Shares set forth on Exhibit A hereto, each such certificate to be registered
in the name of the Investors or, if so indicated on the Stock Certificate
Questionnaire attached hereto as Exhibit C, in the name of a nominee designated
by the Investors. Such stock certificates shall be unlegended and free of any
resale restrictions.
The Company's obligation to issue the Shares 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
being purchased hereunder as set forth on Exhibit A hereto; 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.
Each Investor's obligation to purchase the Shares 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
(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) no
stop order suspending the effectively of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been initiated or
threatened by the Commission; and (c) receipt of a satisfactory legal opinion
from the Company's legal counsel pursuant to Section 2.5 of this Agreement. The
Investor's obligations are expressly not conditioned on the purchase by any or
all of the other Investors, if any, of the Shares that they have agreed to
purchase from the Company.
4. Representations, Warranties and Covenants of the Company. Except as
otherwise described in the Company's filings with the Commission since December
31, 2002, including, without limitation, the Registration Statement (the
"Commission Documents"), in the Company's press releases since December 31,
2002, and in the certain operational, managerial and other information regarding
the Company (the "Proprietary Information") disclosed by the Company to the
Investors in contemplation of this offering, including the documents
incorporated by reference therein (the Commission Documents, press releases and
the Proprietary Information 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 have a material
adverse effect upon the business, properties or financial condition 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 its Commission
Documents 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 Company's SEC filings, 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 Certificate of Incorporation, as
amended, (the "Certificate of Incorporation"), By-laws or other governing
documents or any agreement or other instruments to which the Company is a party
or by which the Company is bound.
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 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 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 contemplated hereby will not give rise to
any preemptive rights or rights of first refusal on behalf of any person.
4.4 No Conflict; Governmental Consents.
(a) The execution and delivery by the Company of this
Agreement, the consummation of the transactions contemplated hereby and the
offer and sale of the Shares will not result in the violation of 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 of any provision of the Certificate of Incorporation or
By-laws of the Company, and will not conflict with, or result in a breach or
violation of, 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 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 is 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, 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, Inc.
("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 likely result in a Material Adverse Effect.
4.6 Litigation. The Company knows of no pending or threatened legal
or governmental proceedings against the Company which would likely result in a
Material Adverse Effect.
4.7 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.
4.8 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.
4.9 Listing. The Company has filed a Notification Form: Listing of
Additional Shares with the Nasdaq Stock Market and hereby represents and
warrants to the Placement Agent and the Investors that it will take any other
necessary action in accordance with the rules of the Nasdaq Stock Market to
enable the Shares to trade on the Nasdaq Stock Market.
4.10 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.
4.11 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, 2002, 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.
4.12 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 the Nasdaq Stock Market
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 the
Nasdaq Stock Market.
4.13 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 effective and intends to comply substantially with other applicable
provisions of the Sarbanes-Oxley Act, and the rules and regulations promulgated
thereunder, upon the effectiveness of such provisions.
4.14 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 or any Subsidiary 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.
4.15 Registration Statement; Effectiveness. The sale and issuance by
the Company of the Shares have been validly registered pursuant to the
Registration Statement and such Shares of Common Stock will be issued without a
restrictive legend.
5. Representations, Warranties and Covenants of the Investors.
5.1 Each Investor individually represents and warrants to, and
covenants with, the Company that: (i) the 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, including investments in Shares 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; (ii) the Investor is acquiring the
number of Shares 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 or any arrangement or understanding
with any other persons regarding the distribution of such Shares (this
representation and warranty not limiting such Investor's right to sell the
Shares pursuant to the Registration Statement or otherwise in compliance with
applicable federal and state securities laws); (iii) the 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 except in compliance with the Securities Act, applicable
state securities laws and the respective rules and regulations promulgated
thereunder; and (iv) the 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 15% 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 or the Placement Agent that would permit an offering of
the Shares, or possession or distribution of offering materials in connection
with the issue of the Shares, 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 has in
its possession or distributes any offering material, in all cases at its own
expense. The Placement Agent is not authorized to make any representation or use
any information in connection with the issue, placement, purchase and sale of
the Shares.
5.3 Each Investor hereby covenants with the Company not to make any
sale of the Shares 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 the Prospectus forming a
part of the Registration Statement until such time as an amendment to the
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) the 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 the Investor enforceable against
the 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 the indemnification agreements of the Investors
herein may be legally unenforceable.
5.5 Each Investor understands that nothing in this Agreement or any
other materials presented to the Investor in connection with the purchase and
sale of the Shares 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.
6. Survival of Representations, Warranties and Agreements. Notwithstanding
any investigation made by any party to this Agreement or by the Placement Agent,
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 being purchased and the payment
therefor.
7. 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:
(a) if to the Company, to:
BioCryst Pharmaceuticals, Inc.
2190 Parkway Lake Drive
Birmingham, AL 35244
Attn: Chief Executive Officer
Phone: (205) 444-4600
Telecopy: (205) 444-4640
(b) with a copy mailed to:
Holme Roberts & Owen LLP
1700 Lincoln Street, Suite 4100
Denver, CO 80203
Attn: Richard R. Plumridge, Esq.
Phone: (303) 861-7000
Telecopy: (303) 866-0200
(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.
8. Changes. This Agreement may not be modified or amended except pursuant
to an instrument in writing signed by the Company and the Investors.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. Third Party Beneficiary. Except as provided on Exhibit C, nothing in
this Agreement shall create or be deemed to create any rights in any person or
entity not a party to this Agreement.
* * * *
Exhibit 99.1
[LETTERHEAD OF BIOCRYST PHARMACEUTICALS, INC.]
BioCryst Pharmaceuticals, Inc.
2190 Parkway Lake Drive
Birmingham, AL 35244
205-444-4600 205-444-4640 Fax
www.biocryst.com
Contacts:
BioCryst Pharmaceuticals, Inc. Euro RSCG Life NRP
Michael A. Darwin Sharon Weinstein (Investors)
Chief Financial Officer (212) 845-4271
(205) 444-4600 Wendy Lau (Media)
(212) 845-4272
FOR IMMEDIATE RELEASE
BIOCRYST TO RAISE APPROXIMATELY $21.4 MILLION THROUGH SALE OF COMMON STOCK
Birmingham, Alabama - February 17, 2004 - BioCryst Pharmaceuticals, Inc. (Nasdaq
NM: BCRX) today announced that it has priced a registered direct offering for
the sale of 3,571,667 shares of its common stock at a price of $6.00 per share
to institutional investors. Leerink, Swann & Company served as placement agent
for the transaction. The company expects this transaction to close on Tuesday,
February 17, 2004.
The offered shares are registered pursuant to BioCryst's $60 million shelf
registration statement that was declared effective by the Securities and
Exchange Commission on January 5, 2004.
In connection with the transaction, BioCryst granted investors affiliated with
OrbiMed Advisors the right to appoint a member to its board of directors
effective as of the closing of the offering.
A Registration Statement relating to these securities has been filed with and
declared effective by the Securities and Exchange Commission. This press release
shall not constitute an offer to sell or the solicitation of an offer to buy nor
shall there be the sale of the securities in any state in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state. Copies of the prospectus relating
to the offering may be obtained from Leerink Swann & Company at 590 Madison
Avenue, 31st Floor, New York, New York 10022.
BioCryst Pharmaceuticals, Inc. designs, optimizes and develops novel drugs that
block key enzymes essential for cancer, cardiovascular and autoimmune diseases,
and viral infections. BioCryst integrates the necessary disciplines of biology,
crystallography, medicinal chemistry and computer modeling to effectively use
structure-based drug design to discover and develop small molecule
pharmaceuticals. Enrollment in four Phase I trials for BioCryst's lead product
candidate, BCX-1777, is underway at nine U.S. cancer centers for patients with
T-cell malignancies, hematologic malignancies, and other refractory cancers.
BioCryst has other new enzyme targets in drug discovery including tissue
factor/factor VIIa and hepatitis C polymerase. For more information about
BioCryst, please visit the company's web site at www.biocryst.com.
These statements involve known and unknown risks, uncertainties and other
factors which may cause our actual results, performance or achievements to be
materially different from any future results, performances or achievements
expressed or implied by the forward-looking statements. These statements reflect
our current views with respect to future events and are based on assumptions and
subject to risks and uncertainties. Given these uncertainties, you should not
place undue reliance on these forward-looking statements. Some of the factors
that could affect the forward-looking statements contained herein include that
we may not be able to enroll the required number of subjects in clinical trials
of BCX-1777, that BCX-1777 or any of our other product candidates may not
receive required regulatory clearances from the FDA, that we may not be able to
initiate Phase II clinical trials of BCX-1777 in 2004 or at all, that we may not
be able to continue future development of BCX-1777 or any of our other current
development programs including tissue factor/factor VIIa and hepatitis C
polymerase, that BCX-1777 or our other development programs may never result in
future product, license or royalty payments being received by BioCryst, that
BioCryst may not have sufficient cash to continue funding the development,
manufacturing, marketing or distribution of its products and that additional
funding, if necessary, may not be available at all or on terms acceptable to
BioCryst. Please refer to the documents BioCryst files periodically with the
Securities and Exchange Commission, specifically BioCryst's most recent Annual
Report on Form 10-K, its Form S-3 Registration Statement filed on December 16,
2003 and its Current Report on Form 8-K filed on February 4, 2004, which
identify important factors that could cause the actual results to differ
materially from those contained in the projections or forward-looking
statements.
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