Securities Registration: Employee Benefit Plan (s-8)
29 May 2021 - 6:31AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on May
28, 2021
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BIOCRYST PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware
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62-1413174
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(State of Incorporation)
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(I.R.S. Employer Identification No.)
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4505 Emperor Blvd., Suite 200
Durham, North Carolina
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27703
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(Address of Principal Executive Offices)
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(Zip Code)
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Employee Stock Purchase Plan
(as Amended and Restated April 1, 2021)
(Full Title of the Plan)
Jon P. Stonehouse
President and Chief Executive Officer
BioCryst Pharmaceuticals, Inc.
4505 Emperor Blvd., Suite 200
Durham, North Carolina 27703
(Name and Address of Agent for Service)
(919) 859-1302
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Brian Lane, Esq.
Robyn Zolman, Esq.
Gibson, Dunn and Crutcher LLP
1050 Connecticut Ave. N.W.
Washington, DC 20036
(202) 955-8500
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☒
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Accelerated filer ☐
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Non-accelerated filer ☐
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Smaller reporting company ☐
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Emerging growth company ☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use
the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B)
of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
Title of Securities
to be Registered
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Amount to be
Registered (1)
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Proposed Maximum
Offering Price Per Share (2)
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Proposed Maximum
Aggregate Offering Price (2)
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Amount of
Registration Fee (2)
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Common Stock, $0.01 par value
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3,500,000 (3)
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$13.39
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$46,865,000
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$5,112.97
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, this Registration Statement shall also cover any additional shares of Common Stock which become issuable by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant’s outstanding shares of Common Stock.
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(2)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) under the Securities Act of 1933, as amended, based upon the average of the high and low prices of the Registrant’s Common Stock on May 26, 2021, as reported on The Nasdaq Global Select Market.
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(3)
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Increase in authorized number of shares under the Employee Stock Purchase Plan (as amended and restated April 1, 2021), as approved by the Registrant’s stockholders on May 25, 2021.
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PART I
INFORMATION REQUIRED IN THE SECTION
10(a) Prospectus
Documents containing the information specified in Part I of Form S-8 have
been and/or will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities
Act”). In accordance with the instructions of Part I of Form S-8, such documents will not be filed with the Securities and
Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference pursuant to Item 3 of Part
II of this Registration Statement, taken together, constitute the prospectus as required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by BioCryst Pharmaceuticals, Inc. (the “Registrant”)
with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by
reference in this Registration Statement:
(a)
The Registrant’s Annual
Report on Form 10-K for the year ended December 31, 2020, filed with the Commission on March 1, 2021 (including the sections of the
Registrant’s Definitive Proxy Statement
on Schedule 14A, filed with the Commission on April 13, 2021 and relating to its May 25, 2021 annual meeting of stockholders, that
are incorporated by reference therein (other than information furnished rather than filed));
(b) The Registrant’s Quarterly
Report on Form 10-Q for the quarter ended March 31, 2021, filed with the Commission on May 7, 2021;
(c) The Registrant’s Current
Report on Form 8-K, filed with the Commission on May
26, 2021; and
(d)
The description of the Registrant’s common stock contained in its Registration Statement on Form 8-A (File No. 000-23186) filed
with the Commission on January 7, 1994, together with the amendment thereto filed with the Commission on March 14, 1994, as updated by
the description of the Registrant’s common stock set forth in Exhibit
4.1 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2020, filed with the Commission on March
1, 2021, and any other amendments or reports filed for the purpose of updating such description.
All reports and other documents subsequently filed with the Commission by
the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment
which indicates that all securities offered herein have been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents,
excluding any information furnished under Item 7.01 or Item 2.02 of any Current Report on Form 8-K (and corresponding information furnished
under Item 9.01 or included as an exhibit thereto). Any statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for the purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies
or replaces such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute
a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the “DGCL”)
sets forth the circumstances in which a Delaware corporation is permitted and/or required to indemnify its directors and officers. The
DGCL permits a corporation to indemnify its directors and officers in certain proceedings if the director or officer has complied with
the standard of conduct set out in the DGCL. The standard of conduct requires that the director or officer must have acted in good faith,
in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to matters
in a criminal proceeding, the director or officer must have had no reason to believe that his or her conduct was unlawful. With respect
to suits by or in the right of the corporation, the DGCL permits indemnification of directors and officers if the person meets the standard
of conduct, except that it precludes indemnification of directors and officers who are adjudged liable to the corporation, unless the
Court of Chancery or the court in which the corporation’s action or suit was brought determines that the director or officer is
fairly and reasonably entitled to indemnity for expenses. To the extent that a present or former director or officer of the corporation
is successful on the merits or otherwise in his or her defense of a proceeding, the corporation is required to indemnify the director
or officer against reasonable expenses incurred in defending himself or herself. The rights provided in Section 145 of the DGCL are not
exclusive, and the corporation may also provide for indemnification under bylaw, agreement, vote of stockholders or disinterested directors
or otherwise.
The Registrant’s Third Restated Certificate of Incorporation, as amended
(the “Certificate of Incorporation”), and its Amended and Restated Bylaws, as amended (the “Bylaws”), provide
for indemnification of any director or officer who was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person
is or was, or has agreed to become, a director or officer of the Registrant, or is or was serving, or agreed to serve, at the request
of the Registrant, as a director, officer or trustee of, or in a similar capacity with, another corporation, partnership, joint venture,
trust or other enterprise (including any employee benefit plan), or by reason of any action alleged to have been taken or omitted in such
capacity, against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person or on such person’s behalf in connection with such action, suit or proceeding and any appeal therefrom,
in each case to the fullest extent permitted by the DGCL. The Registrant shall not indemnify any person seeking indemnification in connection
with a proceeding or part thereof initiated by such person unless the initiation was approved by the Board of Directors of the Registrant.
The Certificate of Incorporation and the Bylaws further provide for permissible indemnification of employees and other agents to the maximum
extent permitted by the DGCL and the Certificate of Incorporation with respect to directors and officers.
Section 102(b)(7) of the DGCL provides that a corporation may relieve its
directors from personal liability to the corporation or its stockholders for monetary damages for any breach of their fiduciary duty as
directors except for (i) a breach of the duty of loyalty; (ii) acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law; (iii) willful or negligent violations of certain provisions in the DGCL imposing certain
requirements with respect to stock repurchases, redemptions and dividends; or (iv) for any transactions from which the director derived
an improper personal benefit. The Registrant’s Certificate of Incorporation provides that no directors of the Registrant shall be
liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted
by the DGCL.
In addition, the Registrant currently maintains liability insurance for
its directors and officers insuring them against certain liabilities asserted against them in their capacities as directors or officers
or arising out of such status.
The indemnification provisions noted above may be sufficiently broad to
permit indemnification of the Registrant’s officers and directors for liabilities arising under the Securities Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are submitted herewith or incorporated by reference
herein.
Item 9. Undertakings.
a. The undersigned Registrant hereby
undertakes:
(1) To file, during any period in
which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus
required by Section 10(a)(3) of the Securities Act.
(ii) To reflect in the
prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in this Registration Statement; and
(iii) To include any material
information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining
any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by
means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
b. The undersigned Registrant hereby
undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
c. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant
to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Durham, State of North Carolina, on
the 28th day of May, 2021.
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BIOCRYST PHARMACEUTICALS, INC.
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By:
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/s/ Jon P. Stonehouse
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Jon P. Stonehouse
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President & Chief Executive Officer
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POWER OF ATTORNEY
Each of the undersigned officers and directors of BIOCRYST PHARMACEUTICALS,
INC. hereby constitutes and appoints Jon P. Stonehouse, Anthony Doyle, and Alane P. Barnes, and each of them, as the undersigned’s
true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for the undersigned and in the undersigned’s
name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith, as fully to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or any of their substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement
has been signed by the following persons in the capacities indicated and on May 28, 2021.
Signature
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Title
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/s/ Jon P. Stonehouse
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President, Chief Executive Officer and Director
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Jon P. Stonehouse
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(Principal Executive Officer)
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/s/ Anthony Doyle
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Chief Financial Officer and Treasurer
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Anthony Doyle
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(Principal Financial Officer)
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/s/ Michael L. Jones
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Executive Director, Finance and Principal Accounting Officer
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Michael L. Jones
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(Principal Accounting Officer)
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/s/ George B. Abercrombie
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Director
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George B. Abercrombie
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/s/ Stephen J. Aselage
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Director
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Stephen J. Aselage
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/s/ Theresa M. Heggie
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Director
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Theresa M. Heggie
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/s/ Nancy Hutson, Ph.D.
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Director
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Nancy Hutson, Ph.D.
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/s/ Robert A. Ingram
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Director
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Robert. A. Ingram
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/s/ Kenneth B. Lee, Jr.
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Director
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Kenneth B. Lee, Jr.
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/s/ Alan G. Levin
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Director
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Alan G. Levin
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