Securities Registration: Employee Benefit Plan (s-8)
15 July 2022 - 6:37AM
Edgar (US Regulatory)
As filed with the Securities and
Exchange Commission on July 14, 2022
Registration No. 333-
|
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 |
|
62-1413174 |
(State of Incorporation) |
|
(I.R.S. Employer Identification No.) |
|
|
|
4505 Emperor Blvd., Suite 200
Durham, North Carolina |
|
27703 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
Stock Incentive Plan
(as Amended and Restated April 18, 2022)
(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 ☒ |
|
Accelerated filer ☐ |
Non-accelerated filer ☐ |
|
Smaller reporting company ☐ |
|
|
Emerging growth company ☐ |
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. ☐
EXPLANATORY
NOTE
This Registration Statement on Form S-8 (this “Registration
Statement”) is filed by BioCryst Pharmaceuticals, Inc. (the “Registrant”) to register 8,000,000 shares of the Registrant’s
common stock, par value $0.01 per share, to be offered and sold under the Registrant’s Stock Incentive Plan (as amended and restated
April 18, 2022), as approved by the Registrant’s stockholders on June 7, 2022.
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 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, 2021, filed with the Commission on February 28, 2022
(including the sections of the Registrant’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on April 25, 2022
and relating to its June 7, 2022 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, 2022, filed with the Commission on May 9, 2022;
(c) The
Registrant’s Current Reports on Form 8-K, filed with the Commission on February 8, 2022, April 8, 2022, and June 7, 2022; 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 2.02 or Item 7.01 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 14th day of July, 2022.
|
BIOCRYST PHARMACEUTICALS, INC. |
|
|
|
|
|
By: |
/s/ Jon P. Stonehouse |
|
|
Jon P. Stonehouse |
|
|
President & Chief Executive Officer |
POWER
OF ATTORNEY
Each of the undersigned officers and directors
of BIOCRYST PHARMACEUTICALS, INC. hereby constitutes and appoints Jon P. Stonehouse, Anthony J. 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 on July 14, 2022.
Signature |
|
Title |
|
|
|
|
|
/s/ Jon P. Stonehouse |
|
President, Chief Executive Officer and Director |
|
Jon P. Stonehouse |
|
(Principal Executive Officer) |
|
|
|
|
|
/s/ Anthony J. Doyle |
|
Chief Financial Officer |
|
Anthony J. Doyle |
|
(Principal Financial Officer) |
|
|
|
|
|
/s/ Michael L. Jones |
|
Executive Director, Finance and Principal Accounting
Officer |
|
Michael L. Jones |
|
(Principal Accounting Officer) |
|
|
|
|
|
/s/ George B. Abercrombie |
|
Director |
|
George B. Abercrombie |
|
|
|
|
|
|
|
/s/ Stephen J. Aselage |
|
Director |
|
Stephen J. Aselage |
|
|
|
|
|
|
|
/s/ Steven K. Galson |
|
Director |
|
Steven K. Galson, M.D. |
|
|
|
|
|
|
|
/s/ Theresa M. Heggie |
|
Director |
|
Theresa M. Heggie |
|
|
|
|
|
|
|
/s/ Nancy J. Hutson |
|
Director |
|
Nancy J. Hutson, Ph.D. |
|
|
|
|
|
|
|
/s/ Robert A. Ingram |
|
Director |
|
Robert A. Ingram |
|
|
|
|
|
|
|
/s/ Kenneth B. Lee, Jr. |
|
Director |
|
Kenneth B. Lee, Jr.
|
|
|
|
/s/ Alan G. Levin |
|
Director |
|
Alan G. Levin |
|
|
|
|
|
|
|
/s/ Amy E. McKee |
|
Director |
|
Amy E. McKee, M.D. |
|
|
|
|
|
|
|
/s/ Vincent J. Milano |
|
Director |
|
Vincent J. Milano |
|
|
|
|
|
|
|
/s/ Machelle Sanders |
|
Director |
|
Machelle Sanders |
|
|
|
BioCryst Pharmaceuticals (NASDAQ:BCRX)
Historical Stock Chart
From Apr 2024 to May 2024
BioCryst Pharmaceuticals (NASDAQ:BCRX)
Historical Stock Chart
From May 2023 to May 2024