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Form 10-Q BIOCRYST PHARMACEUTICALS For: Mar 31

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May 7, 2021 4:19 PM EDT

 

Exhibit 10.1

 

February 18, 2021

 

Helen Thackray, MD

7200 Pyle Road

Bethesda, MD 20817

 

 

Dear Dr. Thackray:

 

On behalf of BioCryst Pharmaceuticals, Inc., a Delaware corporation (the “Company”), we are pleased to offer you the position of Chief Research & Development Officer. You will report directly to Jon Stonehouse, President & CEO. We, along with the other members of the Company’s Board of Directors (the “Board”), and the Company’s management team, are all very impressed with you and what you will bring to the Company. We believe that with your background, you will make significant contributions to the success of the Company.

 

This letter agreement (the “Agreement”) will serve to confirm our agreement with respect to the terms and conditions of your employment.

 

1.    Term of Employment.

 

 

(a)

Subject to the terms and conditions of this Agreement, the Company hereby employs Helen Thackray (“Employee”) as Chief Research & Development Officer as of the Effective Date (defined below). Employee shall commence employment remotely and remain working remotely unless or until business needs change. If business needs arise during the duration of your employment that are mutually agreed upon to require your presence in BioCryst’s corporate headquarters, the company will provide executive relocation assistance in accordance with BioCryst’s relocation policy.

 

 

(b)

Employee shall devote substantially full-time attention to the business and affairs of the Company and its affiliates. Employee may (i) serve on corporate, civic, charitable or non-profit boards or committees, subject in all cases to the prior approval of the Board and other applicable written policies of the Company and its affiliates as in effect from time to time, and (ii) manage personal and family investments, participate in industry organizations and deliver lectures at educational institutions or events, so long as no such service or activity interferes, individually or in the aggregate, with the performance of Employee’s responsibilities hereunder.

 

 

(c)

The term of employment of Employee under this Agreement shall begin no later than March 22, 2021 (such start date, the “Effective Date”) and terminate on the second anniversary of the Effective Date unless earlier terminated in accordance with the provisions of Section 4. In the event Employee is retained by the Company as Chief Research & Development Officer past the second anniversary of the Effective Date, the terms of Employee’s employment shall continue to be governed by this Agreement unless otherwise provided by the Board.

 

 
 

 

2.    Basic Full-Time Compensation and Benefits.

 

 

(a)

Commencing as of the Effective Date, as basic compensation for services rendered under this Agreement, Employee shall be entitled to receive from the Company a salary of $44,166 per month ($530,000 per annum) (the “Base Salary”), payable in accordance with the Company’s standard payroll practices as in effect from time to time during the term of this Agreement. The Base Salary will be reviewed annually by the Board or a committee thereof and may be raised at the discretion of the Board or such committee.

 

In addition to the Base Salary provided above, Employee shall be provided with a $210,000 bonus (“Signing Bonus”) payable six months after the Effective Date of this Agreement.

 

 

(b)

Employee shall be eligible to earn a cash bonus, payable as soon as reasonably practicable in the calendar year following each calendar year during the term of this Agreement, based on the Company’s and/or Employee’s achievement of performance related goals proposed by management and approved by the Board or a committee thereof for the Company’s applicable fiscal year (the “Incentive Compensation”). The Incentive Compensation actually earned, if any, shall be determined in the sole discretion of the Board or a committee thereof and shall be based on a target amount equal to fifty percent (50%) of the Base Salary earned by Employee during such fiscal year (the “Target Amount”), which shall not be pro-rated for the first fiscal year of the term of this Agreement. The Board or a committee thereof may, in its discretion, approve an Incentive Compensation payment in excess of the Target Amount if the performance goals have been exceeded. Employee must be employed through April 1 of the next succeeding fiscal year in order to receive the Incentive Compensation payment for each fiscal year.

 

 

(c)

Employee shall be entitled to receive such other benefits and perquisites provided to similarly situated executive officers of the Company, subject to modification or termination at any time, which benefits may include, without limitation, reasonable paid time off (PTO), medical, dental and vision benefits, life insurance, and participation in profit sharing or retirement plans.

 

3.    Performance Based Equity Awards.

 

 

(a)

The Company shall grant to Employee (i) an option to purchase 400,000 shares of the Company’s common stock (“Common Stock”), with an exercise price equal to the fair market value of the Common Stock on the date of the grant (the “Initial Option”); and (ii) restricted stock units for 100,000 shares of Common Stock (the “Initial RSUs” and together with the Initial Option, the “Initial Equity Grants”). The grant date of the Initial Equity Grants shall be the last day of the month that the Employee begins employment under this Agreement. The Initial Equity Grants shall be granted under and subject to the terms of the Company’s Inducement Equity Incentive Plan, effective as of July 17, 2020, or the Company’s Stock Incentive Plan, effective as of March 19, 2020, as applicable and as the same may be amended and restated from time to time, and subject to the terms of one or more award agreements between Employee and the Company, which Employee will be required to execute as a condition of the grant.

 

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(b)

The Initial Option shall vest and become exercisable, contingent on Employee’s continued provision of services to the Company on each respective vesting date, over a period of four (4) years, vesting with respect to 100,000 shares of Common Stock on each of the first four anniversaries of the grant date until fully vested.

 

 

(c)

The Initial RSUs shall vest, contingent on Employee’s continued provision of services to the Company on each respective vesting date, over a period of four (4) years, vesting with respect to 25,000 shares of Common Stock on each of the first four (4) anniversaries of the grant date until fully vested.

 

 

(d)

During the term of this Agreement, Employee shall be eligible to receive equity-based compensation as determined in the sole discretion of the Board or a committee thereof, which may be subject to the achievement of certain performance targets set by the Board or such committee. All such equity-based awards shall be subject to the terms and conditions set forth in the Company’s Stock Incentive Plan as in effect from time to time and award agreements issued thereunder.

 

4.    Termination.

 

 

(a)

If Employee’s employment is terminated by the Company for Cause or by Employee other than pursuant to a Constructive Termination, or due to the expiration of the stated term of this Agreement or Employee’s death or Disability, the Company shall pay Employee (i) any accrued and unpaid Base Salary, payable on the next payroll date; (ii) reimbursement for any and all monies advanced or expenses incurred in connection with Employee’s employment for reasonable and necessary expenses incurred by Employee on behalf of the Company for the period ending on the termination date, which amount shall be reimbursed within thirty (30) days of the Company’s receipt of proper documentation from Employee; (iii) any compensation that Employee had previously deferred (including any interest earned or credited thereon), in accordance with the terms and conditions of the applicable deferred compensation plans or arrangements then in effect, to the extent vested as of Employee’s termination date, paid pursuant to the terms of such plans or arrangements; and (iv) any vested amount or benefit payable under any benefit plan or program in accordance with the terms thereof (the foregoing items in this Section 4(a), the “Accrued Obligations”).

 

For all purposes under this Agreement, a termination for “Cause” shall mean a determination by the Board that Employee’s employment be terminated for any of the following reasons: (i) failure or refusal to comply in any material respect with lawful policies, standards or regulations of the Company; (ii) a violation of a federal or state law or regulation applicable to the business of the Company; (iii) conviction or plea of no contest to a felony under the laws of the United States or any State; (iv) fraud or misappropriation of property belonging to the Company or its affiliates; (v) a breach in any material respect of the terms of any confidentiality, invention assignment or proprietary information agreement with the Company or with a former employer, (vi) failure to satisfactorily perform Employee’s duties after having received written notice of such failure and at least thirty (30) days to cure such failure, or (vii) misconduct or gross negligence in connection with the performance of Employee’s duties.

 

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For all purposes under this Agreement, “Disability” shall mean the inability of Employee to perform Employee’s duties hereunder by reason of physical or mental incapacity for ninety (90) days, whether consecutive or not, during any consecutive twelve (12) month period.

 

 

(b)

If Employee’s employment is terminated by the Company without Cause, or by Employee pursuant to a Constructive Termination, then Employee will receive any Accrued Obligations and, subject to Section 4(c), Employee will receive the following: (i) continuation of Base Salary for one (1) year following the effective termination date, payable in accordance with the regular payroll practices of the Company; (ii) payment of one times Employee’s annual target Incentive Compensation in effect for the fiscal year in which Employee’s termination date occurs, payable in equal installments over the regularly scheduled payroll periods of the Company for the one year following the effective date of termination; and (iii) if Employee elects to continue health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), following termination of employment, the Company shall pay the monthly premium under COBRA on the same basis as active employees until the earlier of (x) 12 months following the effective termination date, or (y) the date upon which Employee commences employment with an entity other than the Company. Employee will notify the Company in writing within five (5) days of Employee’s receipt of an offer of employment with any entity other than the Company, and will accordingly identify the date upon which Employee will commence employment in such writing (clauses (i) through (iii), “Severance”).

 

For all purposes under this Agreement, “Change of Control” shall mean: (i) the sale, transfer, or other disposition of all or substantially all of the assets of the Company in liquidation or dissolution of the Company; (ii) the consummation of a merger or consolidation of the Company with any other corporation or other entity, other than (I) a merger or consolidation (A) which results in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent fifty percent (50%) or more of the combined voting power of the surviving entity or the ultimate parent thereof outstanding immediately after such merger or consolidation and (B) immediately following which the individuals who comprise the Board immediately prior thereto constitute fifty percent (50%) or more of the board of directors of the entity surviving such merger or consolidation or, if the Company or the entity surviving such merger or consolidation is then a subsidiary, the ultimate parent thereof, or (II) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the beneficial owner (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “1934 Act”)), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities; (iii) any person or related group of persons (other than the Company or a person that directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 of the 1934 Act) of securities possessing more than fifty percent (50%) of the total combined voting of the Company’s outstanding securities pursuant to a tender or exchange offer made directly to the Company’s stockholders; or (iv) a change in the composition of the Board over a period of twelve (12) consecutive months such that a majority of the Board members (rounded up to the next whole number) ceases to be comprised of individuals who either (A) have been Board members continuously since the beginning of such period or (B) have been elected or nominated for election as Board members during such period by at least two-thirds of the Board members described in clause (A) who were still in office at the time such election or nomination was approved by the Board.

 

4
 

 

For all purposes under this Agreement, “Constructive Termination” shall mean a resignation of employment within 30 days of the occurrence of any of the following events which occurs within 6 months following a Change of Control: (i) a material reduction in Employee’s responsibilities; (ii) a material reduction in Employee’s Base Salary, unless such reduction is comparable in percentage to, and is part of, a reduction in the base salary of all executive officers of the Company; or (iii) a relocation of Employee’s principal office to a location more than 50 miles from the location of Employee’s principal office immediately preceding a Change of Control.

 

 

(c)

The Company’s obligation to provide Severance is conditioned upon Employee returning to the Company all of its property and confidential information that is in Employee’s possession and Employee’s execution and non-revocation of an enforceable release of claims (the “Release”). If Employee chooses not to execute the Release, revokes Employee’s execution of the Release, or fails to comply with the terms of the Release, then the Company shall have no obligation to provide Severance and such Severance amount is subject to recoupment by the Company. The Release shall be provided to Employee no later than seven (7) days following Employee’s separation from service and Employee must execute it within the time period specified in the Release (which shall not be longer than forty-five (45) days from the date of receipt). The Release shall not be effective until any applicable revocation period has expired.

 

5.    Non-Competition; Proprietary Information and Inventions.

 

 

(a)

Proprietary Information and Inventions Agreement; Non-Competition and Non-Solicitation Agreement. As a condition precedent to the employment of Employee by the Company, Employee shall execute (i) the Company’s Proprietary Information and Inventions Agreement, attached hereto as Exhibit A, and (ii) the Company’s Non-Competition and Non-Solicitation Agreement, attached hereto as Exhibit B.

 

 

(b)

Equitable Remedies. Employee acknowledges and recognizes that a violation of the Proprietary Information and Inventions Agreement or the Non-Competition and Non-Solicitation Agreement by Employee may cause irreparable and substantial damage and harm to the Company or its affiliates, could constitute a failure of consideration, and that money damages will not provide a full remedy for the Company for such violations. Employee agrees that in the event of Employee’s breach of the Proprietary Information and Inventions Agreement or the Non-Competition and Non-Solicitation Agreement, the Company will be entitled, if it so elects, to institute and prosecute proceedings at law or in equity to obtain damages with respect to such breach, to enforce the specific performance of such agreement(s) by Employee, and to enjoin Employee from engaging in any activity in violation hereof.

 

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6.    Miscellaneous.

 

 

(a)

Entire Agreement. This Agreement, including the exhibits hereto, constitutes the entire agreement between the parties relating to the employment of Employee by the Company and there are no terms relating to such employment other than those contained in this Agreement. No modification or variation hereof shall be deemed valid unless in writing and signed by the parties hereto. No waiver by either party of any provision or condition of this Agreement shall be deemed a waiver of similar or dissimilar provisions or conditions at any time.

 

 

(b)

Assignability. This Agreement may not be assigned without prior written consent of the parties hereto. To the extent allowable pursuant to this Agreement, this Agreement shall be binding upon and shall inure to the benefit of each of the parties hereto and their respective executors, administrators, personal representatives, heirs, successors and assigns.

 

 

(c)

Notices. Any notice or other communication given or rendered hereunder by any party hereto shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid, at the respective addresses of the parties hereto as set forth below.

 

 

(d)

Captions. The section headings contained herein are inserted only as a matter of convenience and reference and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof.

 

 

(e)

Taxes. All amounts to be paid to Employee hereunder are in the nature of compensation for Employee’s employment by the Company, and shall be subject to withholding, income, occupation and payroll taxes and other charges applicable to such compensation.

 

 

(f)

Section 409A. The parties intend for the payments and benefits under this Agreement to be exempt from Section 409A of the Code or, if not so exempt, to be paid or provided in a manner which complies with the requirements of such section, and intend that this Agreement shall be construed and administered in accordance with such intention. In the event the Company determines that a payment or benefit under this Agreement may not be in compliance with Section 409A of the Code, the Company shall reasonably confer with Employee in order to modify or amend this Agreement to comply with Section 409A of the Code and to do so in a manner to best preserve the economic benefit of this Agreement. Notwithstanding anything contained herein to the contrary, (i) in the event (A) any payments described in Section 4 would be “deferred compensation” subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”); and (B) Employee is a “specified employee” (as defined in Code Section 409A(2)(B)(i)), such payments shall, to the extent required by Code Section 409A, be delayed for the minimum period and in the minimum manner necessary to avoid the imposition of the tax required by Section 409A of the Code; (ii) each amount to be paid or benefit to be provided under this Agreement shall be construed as a separately identified payment for purposes of Section 409A of the Code; (iii) any payments that are due within the “short term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless applicable law requires otherwise; and (iv) amounts reimbursable to Employee under this Agreement shall be paid to Employee on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to Employee) during any one (1) year may not affect amounts reimbursable or provided in any subsequent year. Notwithstanding anything in this Agreement to the contrary, in the event any payments hereunder could occur in one of two calendar years as a result of being dependent upon the Release becoming nonrevocable, then, to the extent required to avoid the imposition of taxes or penalties under Section 409A of the Code, such payments shall commence on the first regularly scheduled payroll date of the Company, following the date the Release becomes nonrevocable, that occurs in the second of such two calendar years.

 

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(g)

Golden Parachute Provisions. If it is determined that any payment or benefit provided by the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including, by example and not by way of limitation, acceleration by the Company or otherwise of the date of vesting or payment under any plan, program, arrangement or agreement of the Company would be subject to the excise tax imposed by Internal Revenue Code section 4999 or any interest or penalties with respect to such excise tax (such excise tax together with any such interest and penalties, shall be referred to as the “Excise Tax”), then the Company shall first make a calculation under which such payments or benefits provided to Employee are reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax (the “4999 Limit”). The Company shall then compare (i) Employee’s Net After-Tax Benefit (as defined below) assuming application of the 4999 Limit with (ii) Employee’s Net After-Tax Benefit without application of the 4999 Limit. Employee shall be entitled to the greater of (i) or (ii). “Net After-Tax Benefit” shall mean the sum of (x) all payments that Employee receives or is entitled to receive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company within the meaning of Internal Revenue Code section 280G(b)(2), less (y) the amount of federal, state, local, employment, and Excise Tax (if any) imposed with respect to such payments. Any reduction pursuant to this Section 6(g) shall be implemented by determining the Parachute Payment Ratio (as defined below) for each “parachute payment” and then reducing the “parachute payments” in order beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, such “parachute payments” shall be reduced based on the time of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the same time of payment, such “parachute payments” shall be reduced on a pro rata basis (but not below zero) prior to reducing “parachute payments” with a lower Parachute Payment Ratio. “Parachute Payment Ratio” shall mean a fraction the numerator of which is the value of the applicable “parachute payment” for purposes of Internal Revenue Code Section 280G and the denominator of which is the actual present value of such payment.

 

 

 

 

 

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(h)

Governing Law. This Agreement is made and shall be governed by and construed in accordance with the laws of the State of North Carolina without respect to its conflicts of law principles.

 

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If the foregoing correctly sets forth our understanding, please signify your acceptance of such terms by executing this Agreement, thereby signifying your assent, as indicated below.

 

 

       
 

Yours very truly,
   
 

BIOCRYST PHARMACEUTICALS, INC.
     
     
     
 

By:

  

/s/ Jon Stonehouse
     

Jon Stonehouse
     

Chief Executive Officer
   
 

Cc:

  

Stephanie Angelini
     

Senior Vice President Human Resources

 

 

     

AGREED AND ACCEPTED
 
 
 
 

Sign:

  

/s/ Helen Thackray
   

Helen Thackray, MD

 

 

 

 

 

 

 

 

 

 

 

 

 

 

9
 

 

Exhibit A

(Proprietary Information and Inventions Agreement)

 

EMPLOYEE’S PROPRIETARY INFORMATION AND INVENTIONS

AGREEMENT

 

I, Helen Thackray, recognize that BioCryst Pharmaceuticals, Inc., a Delaware corporation (the “Company” and together with its subsidiaries, including existing and future subsidiaries, the “Company Group”), is engaged in a continuous program of research, development, and production respecting its business, present and future, including fields generally related to its business.

 

I understand that:

 

 

A.

As part of my employment by a member of the Company Group, I will faithfully and diligently serve and endeavor to further and safeguard the interests of the Company Group, and I recognize that I am expected to make new contributions and inventions of value to the Company Group;

 

 

B.

My employment creates a relationship of confidence and trust between me and the Company Group with respect to any information:

 

i. applicable to the business of the Company Group; or

 

ii. applicable to the business of any client or customer of the Company Group,

 

in each case which may be made known to me by any member of the Company Group or by any client or customer thereof or learned by me during the period of my employment.

 

 

C.

The Company Group possesses and will continue to possess information that has been created, discovered or developed by, or assigned, disclosed or otherwise become known to, it (including without limitation information created, discovered, developed, disclosed or made known by me during the period of or arising out of my employment by any member of the Company Group), which information is not generally known to the public. All of the aforementioned information is hereinafter called “Proprietary Information.” By way of illustration, but not limitation, Proprietary Information includes trade secrets, processes, formulas, data and know-how, improvements, inventions, techniques, marketing plans, financial information, strategies, forecasts, and customer lists.

 

In consideration of my employment or continued employment, as the case may be, by any member of the Company Group and the compensation received by me from any member of the Company Group from time to time, I hereby agree as follows:

 

 

1.

All Proprietary Information shall be the sole property of the Company, and the Company shall be the sole owner of all rights, title and interest in connection therewith. I hereby assign to the Company any and all rights I may have or acquire in such Proprietary Information. At all times, both during my employment by any member of the Company Group and after termination, I will keep in confidence and trust all Proprietary Information, and I will not use or disclose any Proprietary Information or anything relating to it without the prior written consent of the Company, except as may be necessary in the ordinary course of performing my duties as an employee of the Company Group. In the event I am required to disclose Proprietary Information pursuant to applicable law or court order, I shall, whenever legally permissible, promptly disclose such request to the Company, and cooperate with the Company to seek a protective order and to otherwise limit such disclosure from becoming public.

 

A-1
 

 

 

2.

Notwithstanding anything set forth in this Agreement, or any other agreement that I have with the Company or its affiliates to the contrary, I shall not be prohibited from reporting possible violations of federal or state law or regulation to any governmental agency or entity, legislative body, or any self-regulatory organization, or making other disclosures that are protected under the whistleblower provisions of federal or state law or regulation, nor am I required to notify the Company regarding any such reporting, disclosure or cooperation with the government. Pursuant to 18 U.S.C. § 1833(b), I understand that I will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret of the Company or its affiliates that (i) is made (A) in confidence to a federal, state, or local government official, either directly or indirectly, or to my attorney and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.  I understand that if I file a lawsuit for retaliation by any member of the Company Group for reporting a suspected violation of law, I may disclose the trade secret to my attorney and use the trade secret information in the court proceeding if I (x) file any document containing the trade secret under seal, and (y) do not disclose the trade secret, except pursuant to court order.  Nothing in this Agreement, or any other agreement that I have with the Company or its affiliates, is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by such section.

 

 

3.

I agree that, during the period of my employment by any member of the Company Group , I will not, without the Company’s express prior written consent, engage in any employment or consulting other than for the Company Group. In the event of the termination of my employment by me or by the Company Group for any reason or at any time upon the Company’s request, I will promptly deliver to the Company all documents and data of any nature pertaining to my work with the Company Group and I will not take with me any documents or data containing or pertaining to any Proprietary Information.

 

 

4.

I will promptly and fully disclose to the Company, or any persons designated by it, all improvements, inventions, formulas, processes, techniques, know-how, and data, whether or not patentable, copyrightable, or otherwise protectible as intellectual property, made or conceived or reduced to practice by me, either alone or jointly with others, during the period of my employment by any member of the Company Group which are related to or useful in the business of the Company Group, or result from the performance of my duties as an employee of any member of the Company Group or result from use of assets or premises owned, leased, or contracted for by any member of the Company Group (all said improvements, inventions, formulas, processes, techniques, know-how, and data shall be collectively hereinafter called “Inventions”). I agree to keep complete, accurate, and authentic accounts, notes, data, and records of all Inventions in the manner and form requested by the Company, which accounts, notes, data, and records shall be and remain the sole property of the Company. I agree to surrender the same promptly to the Company upon its request or, in the absence of such a request, upon the termination of my employment by the Company Group.

 

A-2
 

 

 

5.

I agree that all Inventions are and shall be the sole property of the Company, and that the Company shall be the sole owner of all intellectual property and other rights in connection therewith, and by reason of my being employed by the Company Group, to the extent permitted by law, all of the Inventions consisting of copyrightable subject matter is “work made for hire” as defined in the Copyright Act of 1976 (17 U.S.C. § 101). To the extent that any Invention is not a “work made for hire,” I hereby assign to the Company for no additional consideration any and all rights I may have or acquire in or to such Inventions, including the right to sue, counterclaim, and recover for all past, present, and future infringement, misappropriation, or dilution thereof, and all rights corresponding thereto throughout the world. I further agree as to all such Inventions to assist the Company in every proper way (but at the Company’s expense) to apply for, obtain, maintain and from time to time enforce such intellectual property rights, including patents and extensions and continuations of said patents, on said Inventions in any and all countries, and to that end I will execute all documents for use in applying for, obtaining and maintaining such intellectual property enforcing same, as the Company may desire, together with any further assignments thereof to the Company or persons designated by it. The foregoing obligation to assist the Company shall continue beyond the termination of my employment, but the Company shall compensate me at a reasonable rate after such termination for time actually spent by me at the Company’s request on such assistance.

 

 

6.

As a matter of record I attach hereto a complete list of all inventions or improvements relevant to the subject matter of my employment by the Company Group which have been conceived, made, or reduced to practice by me, alone or jointly with others, prior to my engagement by the Company Group which I desire to remove from the operation of this Agreement. I covenant that such list is complete. If no such list is attached to this Agreement, I represent that I have no such inventions and improvements at the time of signing this Agreement.

 

 

7.

I represent that my performance of all of the terms of this Agreement and as an employee of the Company Group does not and will not breach any agreement to keep in confidence proprietary information of any third party acquired by me in confidence or in trust prior to my employment by the Company Group. I have not entered into, and I agree that I will not enter into, any agreement either written or oral, in conflict herewith.

 

 

8.

I understand that, as part of the consideration of the offer of employment extended to me by the Company or of my continued employment by the Company Group, as the case may be, I will not bring, have not brought, with me to the Company Group and I will not use, have not used, in the performance of my responsibilities at the Company Group, materials or documents of a former employer, unless I have obtained written authorization from the former employer for their possession and use. Accordingly, this is to advise the Company that the only materials that I will bring to the Company Group or use in my employment are identified on the attached sheet and, as to each such item, I represent that I have obtained, prior to the effective date of my employment with the Company, written authorization for their possession and use in my employment with the Company Group. I also understand that, in my employment with the Company Group, I am not to breach any obligation of confidentiality that I have to former employers, and I agree that I shall fulfill all such obligations during my employment with the Company Group.

 

A-3
 

 

 

9.

This Agreement shall be effective as of the first day of my employment by the Company. I understand and agree that this Agreement is not a contract of employment.

 

 

10.

This Agreement shall be binding upon me, my heirs, executors, assigns, administrators, and other legal representatives and shall inure to the benefit of the Company, its successors and assigns.

 

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A-4
 

 

IN WITNESS WHEREOF, the Company has caused this Proprietary Information and Inventions Agreement to be executed by its duly authorized officer and Employee has executed the same as of the dates set forth below.

 

 

 

 

 

BIOCRYST PHARMACEUTICALS, INC.

  

EMPLOYEE
       
       
       

By:

 ___________________________________   ___________________________________
 

Jon Stonehouse

  

Helen Thackray, MD
 

Chief Executive Officer

    
       
       

Date:

 ___________________________________

Date:

___________________________________

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A-5
 

 

______, 20__

 

BioCryst Pharmaceuticals, Inc.

4505 Emperor Blvd., Suite 200

Durham, NC 27703

 

 

 

 

Dear Sir or Madam:

 

I, Helen Thackray, propose to bring to my BioCryst employment the following tangible materials and previously unpublished documents, which materials and documents may be used in my BioCryst employment:

 

         

___ No materials

  

___ See below

  

___ Additional sheets attached

 

The signature below by a representative of my current or former employer confirms that my continued possession and use of these materials is authorized.

 

AUTHORIZATION:

 

COMPANY:

 ___________________________________  

EMPLOYEE
       
       
       
  ___________________________________   ___________________________________

By:

 ___________________________________  

Helen Thackray, MD

Its:

 ___________________________________    
       

 

 

 

 

 

 
 

 

Exhibit B

(Non-Competition and Non-Solicitation Agreement)

 

 

This Non-Competition and Non-Solicitation Agreement (the “Agreement”) is made and entered into this ____ day of _________, 20__ (the “Effective Date”) by and between BioCryst Pharmaceuticals, Inc., (the “Company”) and Helen Thackray (the “Employee”). The Company and Employee are sometimes referred to in this Agreement individually as a “Party” and collectively as “Parties.”

 

WHEREAS, Employee is commencing employment with the Company pursuant to an Employment Agreement entered into between Employee and the Company (the “Employment Agreement”) and is simultaneously entering into an Employee’s Proprietary Information and Inventions Agreement (the “PIIA”) with the Company; and

 

WHEREAS, in consideration for Employee’s promises and obligations set forth herein, the Company is offering Employee severance pay as specifically described in the Employment Agreement to which Employee was not previously entitled.

 

NOW THEREFORE, in consideration of the mutual promises and obligations set forth below and other good and valuable consideration, the receipt and sufficiency of which the Parties acknowledge, the Company and Employee agree as follows:

 

1.    COMPANY BUSINESS AND PROTECTABLE INTERESTS. Employee acknowledges that: (i) by virtue of Employee’s position with the Company, Employee will have access to Proprietary Information, as that term is defined in the PIIA, which information has not become publicly available (“Confidential Information”); (ii) the Company together with its subsidiaries (including existing and future subsidiaries, the “Company Group”) is currently engaged primarily, but not exclusively, in the business of the discovery, development and commercialization of medicines and programs for rare diseases (the “Business”); (iii) during the course of Employee’s employment, the Company Group’s Business may expand or change, in which case, such expansions or changes shall correspondingly expand or (if abandoned) contract the definition of “Business” and Employee’s obligations under this Agreement; (iv) due to the nature of the Business, Confidential Information developed by the Company Group in furtherance of the treatment for a particular rare disease would have commercial value to any other entity pursuing the development of medicines for the same disease regardless of the location of that entity, and the use of that information by such an entity would have a negative commercial impact on the Company Group; (v) the Company Group has clients, customers and collaborative partners throughout the United States and the world and the specific location of a competing business is not necessarily relevant to the capacity of that business to compete with the Company Group; and (vi) the provisions of this Agreement are reasonably necessary to protect the Company Group’s legitimate business interests, are reasonable as to time, territory and scope of activities which are restricted, do not interfere with public policy or public interest and are described with sufficient accuracy and definiteness to enable Employee to understand the scope of the restrictions imposed upon Employee.

 

 

B-1
 

 

2.    COMPETITIVE BUSINESS ACTIVITIES. Employee agrees that during the period of Employee’s employment with the Company Group and for a period of time ending on the date occurring one year after the date such Employee is no longer employed by any member of the Company Group (irrespective of the circumstances of such termination), Employee will not:

 

(a)    on Employee’s own or another’s behalf, whether as an officer, director, manager, stockholder, partner, member, associate, owner, employee, consultant, or otherwise do any of the following or provide material assistance to any other party or entity to do so:

 

(i)    engage in the Business with respect to medicines or programs with which Employee was materially involved on behalf of the Company Group during Employee’s employment or with respect to which Employee obtained Confidential Information during Employee’s employment;

 

(ii)    solicit or do business which is the same, similar to or otherwise in competition with the Business, from or with persons or entities: (a) who are clients, customers or collaborative partners of the Company Group; (b) with whom or which Employee or someone for whom Employee was responsible solicited, negotiated, contracted, serviced or had material contact with on the Company Group’s behalf; (c) with respect to whom or which Employee obtained Confidential Information during and as a consequence of Employee’s employment by the Company Group; or (d) who were clients, customers or collaborative partners of the Company at any time during the last year of Employee’s employment with the Company Group; nor shall Employee request, induce, or solicit such persons or entities to curtail or cancel their business with the Company Group;

 

(iii)    offer employment to, hire or otherwise solicit for employment any employee or other person who had been employed or retained by the Company Group during the last year of Employee’s employment with the Company Group and with whom Employee had material contacts during the course of Employee’s employment; nor shall Employee request, induce, or solicit any employee or independent contractor of the Company Group who had been employed or retained by the Company Group during the last year of Employee’s employment with the Company Group and with whom Employee had material contacts during the course of Employee’s employment to terminate his or her employment or independent contractor relationship with the Company Group; or

 

(b)    take any action, which is materially detrimental, or otherwise intended to be adverse to the Company Group’s goodwill, name, business relations, prospects and operations.

 

(c)    The restrictions set forth in Section 2(a)(i) apply to the following separate and distinct geographical areas: (i) the world; (ii) North America (iii) Europe; (iv) the United States; (v) the United Kingdom; (vi) the State of North Carolina; (vii) the State of Alabama; (viii) within a 60-mile radius of any location of the Company Group in which Employee had an office or performed material services during Employee’s employment with the Company Group; (ix) any city, metropolitan area, county, state or country in which Employee’s substantial services were provided, or for which Employee had substantial responsibility, or in which Employee worked on Company Group projects, while employed by the Company Group; (x) any city, metropolitan area, county, state or country in which the Company Group is located or does or, during Employee’s employment with the Company Group, did business.

 

B-2
 

 

(d)    The restrictions set forth in Section 2(a)(i) apply only to prohibit Employee from engaging in activities that are materially similar to the activities in which Employee engaged on behalf of the Company Group or with respect to which Employee would reasonably be expected to use Confidential Information.

 

(e)    Notwithstanding the foregoing, Employee’s ownership, directly or indirectly, of not more than one percent of the issued and outstanding stock of a corporation the shares of which are regularly traded on a national securities exchange or in the over-the-counter market shall not violate Sections 2(a)-(b).

 

3.    REMEDIES. Employee acknowledges that Employee’s failure to abide by this Agreement would cause irreparable harm to the Company Group for which legal remedies would be inadequate. Therefore, in addition to any legal or other relief to which the Company Group may be entitled by virtue of Employee’s failure to abide by these provisions; the Company Group, or any member thereof, may seek equitable relief, including, but not limited to, preliminary and permanent injunctive relief, for Employee’s actual or threatened failure to abide by these provisions, and Employee will indemnify the Company Group for all expenses including attorneys’ fees in seeking to enforce these provisions.

 

4.    TOLLING. The period during which Employee must refrain from the activities set forth in Sections 2(a)-(b) shall be tolled during any period in which Employee fails to abide by these provisions.

 

5.    VIOLATION BY COMPANY. In the event that Employee alleges and proves a violation by the Company Group of any obligation of the Company Group to Employee by agreement or operation of law, such violation shall not excuse Employee from Employee’s obligations pursuant to this Agreement, but rather Employee shall be entitled to remedies available for the specific violation alleged and proven.

 

6.    OTHER AGREEMENTS. Nothing in this Agreement shall terminate, revoke, or diminish Employee’s obligations or the Company Group’s rights and remedies under law or pursuant to the PIIA, relating to trade secrets or proprietary information.

 

7.    ENTIRE AGREEMENT. This Agreement and the PIIA, together constitute the exclusive and complete agreement between the Parties with respect to this subject matter and supersedes any other right of the Employee to severance under any plan, arrangement or agreement of the Company. No change or modification of this Agreement shall be valid or binding upon the Parties unless such change or modification is in writing and is signed by the Parties.

 

B-3
 

 

8.    WAIVER OF BREACH. The Company’s or Employee’s waiver of any breach of a provision of this Agreement shall not waive any subsequent breach by the other Party.

 

9.    SEVERABILITY. If a court of competent jurisdiction holds that any provision or sub-part thereof contained in this Agreement is invalid, illegal, or unenforceable, that invalidity, illegality, or unenforceability shall not affect any other provision in this Agreement. Additionally, if any of the provisions of this Agreement are held unenforceable by a court of competent jurisdiction, then the Parties desire that such provision, clause, or phrase be “blue-penciled” or rewritten by the court to the extent necessary to render it enforceable.

 

10.   PARTIES BOUND. The terms, provisions, covenants and agreements contained in this Agreement shall apply to, be binding upon and inure to the benefit of the Company’s successors and assigns, and Employee’s heirs, executors, administrators, and other legal representatives. Employee may not assign this Agreement.

 

11.   REMEDIES. Employee acknowledges that Employee’s breach of this Agreement would cause the Company irreparable harm for which damages would be difficult, if not impossible, to ascertain and legal remedies would be inadequate. Therefore, in addition to any legal or other relief to which the Company may be entitled by virtue of Employee’s breach or threatened breach of this Agreement, the Company may seek equitable relief, including but not limited to preliminary and permanent injunctive relief and all other available remedies.

 

12.   GOVERNING LAW. This Agreement and the employment relationship created by it shall be interpreted and construed in accordance with the laws of the State of North Carolina, including its statutes of limitations, without giving effect to any conflict-of-laws rule that would result in the application of the laws of a different jurisdiction. The Parties consent to exclusive jurisdiction in North Carolina for the purpose of any litigation relating to this Agreement and agree that any litigation by or involving them relating to this Agreement shall be conducted in the state courts of North Carolina or the appropriate federal district court located in North Carolina. Employee consents to the exercise of personal jurisdiction in any state or federal court located in North Carolina and waives any objection based upon personal jurisdiction or forum non conveniens with respect to any action commenced in such courts.

 

13.   COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be an original, with the same effect as if the signatures affixed thereto were upon the same instrument.

 

14.   EMPLOYEE ACKNOWLEDGMENT. Employee understands and agrees that this Agreement is not a contract of employment for any particular term.

 

[Signature Page Follows]

 

B-4
 

 

IN WITNESS WHEREOF, the Company has caused this Non-Competition and Non-Solicitation Agreement to be executed by its duly authorized officer and Employee has executed the same as of the dates set forth below.

 

 

 

 

 

BIOCRYST PHARMACEUTICALS, INC.

  

EMPLOYEE
       
       
       

By:

 ______________________________________   ______________________________________
 

Jon Stonehouse

  

Helen Thackray, MD
 

Chief Executive Officer

    
       
       

Date:

 ______________________________________

Date:

 ______________________________________

 

 

 

 

 

 

 

 

 

 

 

B-5

 

Exhibit 10.2

 

BIOCRYST PHARMACEUTICALS, INC.

STOCK INCENTIVE PLAN

 

NOTICE OF RESTRICTED STOCK UNIT AWARD

 

Notice is hereby given that BioCryst Pharmaceuticals, Inc. (the “Company”) has selected you to receive an award of restricted stock units with respect to the Company’s Common Stock (such award referred to herein as the “RSUs” or “Award”) as described below and granted pursuant to the BioCryst Pharmaceuticals, Inc. Stock Incentive Plan (the “Plan”) and the accompanying Restricted Stock Unit Agreement (the “Agreement”):

 

   

Name of Recipient:

  
   

Number of Underlying Shares:

  
   

Grant Date:

  
   

Vesting:

  

 

Recipient understands that the Award is granted subject to and in accordance with the express terms and conditions of the Plan and agrees to be bound by and conform to the terms and conditions of the Plan, the Plan Prospectus, this Notice of Restricted Stock Unit Award, and the accompanying Agreement. Recipient acknowledges that, notwithstanding anything to the contrary in any employment or other agreement between Recipient and the Company, the vesting of the RSUs shall not accelerate upon a Change in Control (or any equivalent term as set forth in any applicable written employment agreement); rather, vesting shall accelerate only to the extent provided in the Plan. Recipient acknowledges that copies of the Plan, the Plan Prospectus, and the Agreement have been made available to Recipient.

 

Nothing in this Notice of Restricted Stock Unit Award, the accompanying Agreement, or the Plan shall confer upon the Recipient the right to continue in the service or employment of the Company for any period of specific duration or otherwise restrict in any way the rights of the Company or the Recipient, which rights are hereby expressly reserved by each, to terminate Recipient’s service or employment at any time for any reason whatsoever, with or without cause.

 

By my signature below, I hereby acknowledge receipt of the Award granted to me on the Grant Date specified above and issued to me pursuant to the terms and conditions of the Plan and the attached Agreement.

 

Agreed and Accepted:

 

By: _____________________________

Recipient: ________________________

BIOCRYST PHARMACEUTICALS, INC.

 

____________________________________

Jon P. Stonehouse
President and Chief Executive Officer

Dated: ___________________________

  

 

 
 

 

BIOCRYST PHARMACEUTICALS, INC.

 

RESTRICTED STOCK UNIT AGREEMENT

 

WITNESSETH:

 

RECITALS

 

A.    The Board of Directors (the “Board”) of BioCryst Pharmaceuticals, Inc. (the “Company”) has adopted the Company’s Stock Incentive Plan (the “Plan”) for the purpose of attracting and retaining the services of its employees (including officers and directors), non-employee Board members and consultants and other independent contractors who contribute to the financial success of the Company or its parent or subsidiary corporations.

 

B.    Recipient is an individual who has rendered and is to render valuable services to the Company or its parent or subsidiary corporations, and this Agreement is executed pursuant to, and is intended to carry out the purposes of, the Plan in connection with the Company’s grant of the Restricted Stock Unit Award to Recipient.

 

NOW, THEREFORE, it is hereby agreed as follows:

 

The terms and conditions of the Award of restricted stock units with respect to Common Stock of the Company (the “RSUs”) made to the Recipient, as set forth in the accompanying Notice of Restricted Stock Unit Award (the “Award Notice”), are as follows:

 

 

1.

Issuance of RSUs.

 

(a)    The RSUs are hereby granted and issued to the Recipient, effective as of the Grant Date set forth in the accompanying Award Notice, in consideration of the employment services rendered and to be rendered by the Recipient to the Company in accordance with Article Three of the Plan. Each RSU represents the right to receive one share of Common Stock, subject to the terms and conditions hereof. This Award is made subject to and awarded upon the terms and conditions set forth in this Agreement and the Plan.

 

(b)    As promptly as practicable following the vesting of the RSUs pursuant to Section 2 (and in all events no later than March 15 of the year following the year of vesting (unless earlier delivery is required by Section 409A of the Code or delivery is deferred pursuant to a nonqualified deferred compensation plan in accordance with the requirements of Section 409A of the Code)), the Company shall issue, in the name of the Recipient, the number of shares of Common Stock that have vested.

 

(c)    The Recipient agrees that the RSUs shall be subject to the forfeiture provisions set forth in Section 3 of this Agreement and the restrictions on transfer set forth in Section 4 of this Agreement.

 

 

2.

General Vesting Terms; Lapsing of Restrictions.

 

(a)    Vesting Schedule. Subject to Recipient’s continuous employment with or service to the Company from the Grant Date through each applicable Vesting Date, the RSUs shall vest and no longer be subject to forfeiture with respect to twenty-five percent (25%) of the RSUs on each of the first four (4) anniversaries of the Grant Date (each such anniversary a “Vesting Date”).

 

 
 

 

(b)    Change in Control. If a Change in Control occurs, Article III, Section 2 of the Plan shall govern the treatment of the RSUs in connection therewith.

 

(c)    Continuous Employment and Service. For purposes of this Agreement, Recipient shall be deemed to remain in continuous service with the Company for so long as the Recipient continues to render periodic services to the Company or any parent or subsidiary corporation, whether as an employee, a non-employee member of the Company’s Board of Directors or an independent consultant or advisor. The Recipient shall be deemed to be an “employee” and to continue in the Company’s employ for so long as Recipient remains in the employ of the Company or one or more of its parent or subsidiary corporations subject to the control and direction of the employer entity as to both the work to be performed and the manner and method of performance. For purposes of this Agreement, a corporation shall be considered to be a subsidiary corporation of the Company if it is a member of an unbroken chain of corporations beginning with the Company, provided each such corporation in the chain (other than the last corporation) owns, at the time of determination, stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. Similarly, for purposes of this Agreement, a corporation shall be considered to be a parent corporation of the Company if it is a member of an unbroken chain ending with the Company, provided each such corporation in the chain (other than the Company) owns, at the time of determination, stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.

 

 

3.

Forfeiture of Unvested RSUs Upon Employment Termination.

 

In the event that the Recipient ceases to be continuously employed by or continuously in service to the Company for any reason or no reason, with or without cause, except as otherwise expressly provided in Section 2 above, all of the RSUs that are unvested as of the time of such employment termination shall be forfeited immediately and automatically to the Company and no shares of Common Stock shall be issued with respect thereto, without the payment of any consideration to the Recipient, effective as of such termination of employment or separation from service. The Recipient shall have no further rights with respect to any RSUs that are so forfeited. If the Recipient is employed by a subsidiary of the Company, any references in this Agreement to employment with the Company shall instead be deemed to refer to employment with such subsidiary.

 

 

4.

Restrictions on Transfer.

 

The Recipient shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise (collectively “transfer”) any RSUs, or any interest therein (but may transfer Common Stock after its issuance pursuant to Section 1(b) above). Notwithstanding the foregoing to the extent permitted by applicable law, the RSUs may be assigned in whole or part during the Recipient’s lifetime pursuant to a domestic relations order; provided, however, that such RSUs shall in all cases remain subject to this Agreement (including, without limitation, the forfeiture provisions set forth in Section 3 and the restrictions on transfer set forth in this Section 4) and such permitted transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Agreement. The Company shall not be required: (i) to transfer on its books any of the RSUs (or issue shares of Common Stock with respect thereto) which have been transferred in violation of any of the provisions of this Agreement or (ii) to treat as owner of such RSUs any transferee to whom such RSUs have been transferred in violation of any of the provisions of this Agreement.

 

 

3
 

 

 

5.

Rights as a Shareholder.

 

The Recipient shall have no rights as a shareholder with respect to the RSUs until such times as shares of Common Stock are issued in settlement thereof; provided, however, that if any dividends and distributions with respect to the shares of Common Stock underlying the RSUs are paid in cash or shares, or consist of a dividend or distribution to holders of Common Stock other than an ordinary cash dividend, the shares, cash or other property will be credited to a notional account on behalf of the Recipient subject to the same restrictions on transferability and forfeitability as the related RSUs.

 

 

6.

Tax Matters.

 

(a)    Acknowledgments. The Recipient acknowledges that Recipient is responsible for obtaining the advice of the Recipient’s own tax advisors with respect to the acquisition and vesting of the RSUs and that Recipient is relying solely on such advisors and not on any statements or representations of the Company or any of its agents with respect to the tax consequences relating to the RSUs. The Recipient understands that the Recipient (and not the Company) shall be responsible for any and all of Recipient’s tax liabilities that may arise in connection with the acquisition, vesting and/or settlement of the RSUs.

 

(b)    Withholding. Unless the Plan Administrator expressly authorizes otherwise, the Recipient shall satisfy all tax withholding obligations arising in connection with the vesting of RSUs by automatically having withheld or otherwise transferring to the Company, effective as of each Vesting Date, such number of shares of Common Stock underlying the RSUs that vest on such Vesting Date as have a fair market value (calculated in accordance with the Plan) equal to the amount of the applicable tax withholding obligations in connection with the vesting and settlement of such RSUs. The Recipient further acknowledges and agrees that the Company has the right to deduct from payments of any kind otherwise due to the Recipient any other federal, state, local or other taxes of any kind required by law to be withheld with respect to the vesting and settlement of the RSUs in the event the withholding of shares of Common Stock authorized above is insufficient to satisfy all tax withholding obligations. If requested by the Plan Administrator, the Recipient agrees to satisfy such tax withholding obligations by making a cash payment to the Company on the date of vesting of the RSUs, in such amount as the Company determines is necessary to satisfy its withholding obligations in connection with the vesting and settlement of such RSUs.

 

 

7.

Miscellaneous.

 

(a)    Authority of the Plan Administrator. In making any decisions or taking any actions with respect to the matters covered by this Agreement, the Plan Administrator shall have full authority and discretion, and shall be subject to all of the protections provided for in the Plan. All decisions and actions by the Plan Administrator with respect to this Agreement shall be made in the Plan Administrator’s sole discretion and shall be final and binding on all.

 

(b)    No Employment or Service Contract. The Recipient acknowledges and agrees that, notwithstanding the fact that vesting and settlement of the RSUs is contingent upon Recipient’s continued employment with, or service to, the Company, this Agreement does not constitute an express or implied promise of continued employment or service and nothing herein or in the Plan shall confer upon the Recipient any rights to continue in the employment or service of the Company (or any parent or subsidiary corporation of the Company employing or retaining Recipient) for any period of time or interfere with or otherwise restrict in any way the rights of the Company (or any parent or subsidiary corporation of the Company employing or retaining Recipient) or Recipient, which rights are hereby expressly reserved by each, to terminate Recipient’s service or employment at any time for any reason whatsoever, with or without cause.

 

4
 

 

(c)    Notices. Any notice required to be given or delivered to the Company under the terms of this Agreement shall be in writing and addressed to the Company in care of the Corporate Secretary at its principal corporate offices. Any notice required to be given or delivered to Recipient shall be in writing and addressed to the Recipient at the address indicated below Recipient’s signature line of the Award Notice or such address as Recipient may provide for the Company to keep on file as updated from time to time. All notices shall be deemed to have been given or delivered upon personal delivery or upon deposit in the U. S. Mail, postage prepaid and properly addressed to the party to be notified.

 

(d)    Construction; Amendment. The Recipient acknowledges that Recipient has read this Agreement, has received and read the Plan, and understands the terms and conditions of this Agreement and the Plan. This Agreement and the RSUs evidenced hereby are made and granted pursuant to the Plan and are in all respects limited by and subject to the express terms and provisions of the Plan. All decisions of the Plan Administrator with respect to any question or issue arising under the Plan or this Agreement shall be conclusive and binding on all persons having or claiming an interest in the RSUs. This Agreement may only be amended by a writing executed by the parties hereto expressly providing for amendment of this Agreement except that the Plan Administrator may unilaterally make amendments that do not adversely affect Recipient’s rights hereunder, provided timely notice of such amendments is provided to Recipient.

 

(e)    Successors and Assigns. Except to the extent otherwise expressly provided herein, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, administrators, heirs, legal representatives and assigns of Recipient and the successors and assigns of the Company.

 

(f)    Liability of the Company. If the RSUs exceed, as of the Grant Date, the number of shares of Common Stock which may without shareholder approval be issued under the Plan, then this Award shall be void with respect to such excess shares unless shareholder approval of an amendment sufficiently increasing the number of shares of Common Stock issuable under the Plan is obtained in accordance with the provisions of this Plan and all applicable laws. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance and sale of any Common Stock pursuant to this Agreement shall relieve the Company of any liability with respect to the non-issuance or sale of the Common Stock as to which such approval shall not have been obtained. The Company, however, shall use its best efforts to obtain all such approvals.

 

(g)    Compliance with Laws and Regulations. The award of RSUs hereunder and the settlement thereof is subject to compliance by the Company and Recipient with all applicable requirements of law relating thereto and all applicable regulations of any stock exchange or over-the-counter market on which such shares may be listed or traded at the time of such exercise and issuance. In connection with the settlement of RSUs, Recipient shall execute and deliver to the Company such representations in writing as may be requested by the Company in order for it to comply with the applicable requirements of federal and state securities laws.

 

(h)    Capitalized Terms/Conflict. Capitalized terms not specifically defined herein have the meaning specified in the Plan. In the event of a conflict between the terms and conditions of this Agreement and the Plan, the Plan controls.

 

(i)    Electronic Delivery. Recipient hereby consents to the delivery of information (including, without limitation, information required to be delivered to Recipient pursuant to applicable securities laws) regarding the Company and its subsidiaries and affiliates, the Plan, and the RSUs via Company web site or other electronic delivery.

 

5
 

 

(j)    Headings. The headings preceding the text of the sections hereof are inserted solely for convenience of reference, and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction or effect.

 

(k)    Governing Law. The interpretation, performance, and enforcement of this Agreement shall be governed by the internal laws of the State of Delaware without regard to that state’s conflict-of-laws rules.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6

Exhibit 31.1

CERTIFICATIONS

I, Jon P. Stonehouse, certify that:

 

 

1.

I have reviewed this quarterly report on Form 10-Q of BioCryst Pharmaceuticals, Inc.;

 

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

 

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

 

4.

The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

 

a.

designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

 

b.

designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

 

c.

evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

 

d.

disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

 

5.

The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

 

a.

all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

 

b.

any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: May 7, 2021

/s/ Jon P. Stonehouse

  
 

Jon P. Stonehouse

  
 

President and Chief Executive Officer

  

 

 

Exhibit 31.2

CERTIFICATIONS

I, Anthony Doyle, certify that:

 

 

1.

I have reviewed this quarterly report on Form 10-Q of BioCryst Pharmaceuticals, Inc.;

 

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

 

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

 

4.

The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

 

a.

designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

 

b.

designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

 

c.

evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

 

d.

disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

 

5.

The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

 

a.

all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

 

b.

any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: May 7, 2021

/s/ Anthony Doyle

  
 

Anthony Doyle

  
 

Chief Financial Officer

  

 

 

Exhibit 32.1

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the Quarterly Report of BioCryst Pharmaceuticals, Inc. (the “Company”) on Form 10-Q for the period ended March 31, 2021 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Jon P. Stonehouse, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge:

 

 

1.

The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

 

2.

The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.

 

/s/ Jon P. Stonehouse  
Jon P. Stonehouse  
President and Chief Executive Officer  
Date: May 7, 2021  

 

 

 

 

 

 

 

 

 

Exhibit 32.2

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the Quarterly Report of BioCryst Pharmaceuticals, Inc. (the “Company”) on Form 10-Q for the period ended March 31, 2021 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Anthony Doyle, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge:

 

 

1.

The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

 

2.

The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.

 

/s/ Anthony Doyle  
Anthony Doyle  
Chief Financial Officer  
Date: May 7, 2021  

 

 

 

 

 

 

 

 

 

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