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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 2, 1999
REGISTRATION NO. 333-87669
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 5
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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BIOCRYST PHARMACEUTICALS, INC.
(Exact name of Registrant as specified in its Charter)
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<S> <C>
DELAWARE 62-1413174
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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2190 PARKWAY LAKE DRIVE, BIRMINGHAM, ALABAMA 35244
(205) 444-4600
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
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CHARLES E. BUGG, PH.D.
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
BIOCRYST PHARMACEUTICALS, INC.
2190 PARKWAY LAKE DRIVE
BIRMINGHAM, ALABAMA 35244
(205) 444-4600
(Name, address, including zip code, and telephone number,
including area code, of agent for service of process)
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COPIES TO:
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RICHARD R. PLUMRIDGE, ESQ. JOHN W. WHITE, ESQ.
LUCI STALLER ALTMAN, ESQ. CRAVATH, SWAINE & MOORE
BRUCE E. CUNNINGHAM, ESQ. WORLDWIDE PLAZA
BROBECK, PHLEGER & HARRISON LLP 825 EIGHTH AVENUE
370 INTERLOCKEN BLVD., SUITE 500 NEW YORK, NEW YORK 10019-7475
BROOMFIELD, COLORADO 80021 (212) 474-1000
(303) 410-2000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable on or after this Registration Statement is declared effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SECTION 8(A), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all costs and expenses, other than the
underwriting discounts and commissions, payable by the company in connection
with the sale of common stock being registered hereby. All of the amounts shown
are estimates except the SEC registration fee, the NASD filing fee and the
Nasdaq National Market additional listing fee.
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<CAPTION>
AMOUNT
TO BE PAID
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<S> <C>
SEC registration fee........................................ $ 15,985
NASD filing fee............................................. 6,250
Nasdaq additional listing of shares fee..................... 17,500
Accounting fees and expenses................................ 40,000
Legal fees and expenses..................................... 260,000
Printing and engraving expenses............................. 150,000
Transfer Agent and registrar fees........................... 5,000
Miscellaneous............................................... 55,265
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Total....................................................... $550,000
========
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's Board of Directors to grant, indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Act"). Article Eight of the Registrant's Composite Certificate
of Incorporation provides for indemnification of its directors and officers and
permissible indemnification of employees and other agents to the maximum extent
permitted by the Delaware General Corporation Law. The Registrant has liability
insurance for its Directors and Officers.
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ITEM 16. EXHIBITS
The following is a list of Exhibits filed as part of the Registration
Statement:
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1.1 Form of Underwriting Agreement.+
4.1 Specimen certificate for shares of the Registrant's Common
Stock, incorporated herein by reference to Exhibit 4.1 the
Registrant's Registration Statement No. 33-73868.
4.2 Provisions of the Composite Certificate of Incorporation and
By-Laws of the Registrant defining rights of holders of
Common Stock of the Registrant, incorporated herein by
reference to Exhibits 3.1 and 3.2 to the Company's Form 10-Q
for the second quarter ending June 30, 1995 dated August 11,
1995.
5.1 Opinion of Brobeck, Phleger & Harrison LLP.+
23.1 Consent of Brobeck, Phleger & Harrison LLP (included in the
opinion filed as Exhibit 5.1).+
23.2 Consent of Ernst & Young LLP, independent accountants.+
23.3 Consent of Pollock, Vande Sande & Amernick, R.L.L.P.,
special patent counsel to the Registrant.++
24.1 Power of Attorney (included with signature page).+
27.1 Financial Data Schedule.+
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+ Previously filed
++Filed herewith.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described in Item 15 above, 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
Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than 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 our
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 Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities offered hereby, a post-effective amendment to this
Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the 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 the 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
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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 the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 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 the 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.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on our behalf by the undersigned, thereunto duly
authorized, in the City of Birmingham, State of Alabama, on November 2, 1999.
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BIOCRYST PHARMACEUTICALS, INC.
By: /s/ CHARLES E. BUGG
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Charles E. Bugg, Ph.D. Chairman and Chief
Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 2, 1999.
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SIGNATURE TITLE
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<C> <S>
/s/ CHARLES E. BUGG Chairman, Chief Executive Officer and
- -------------------------------------------- Director (principal executive officer)
Charles E. Bugg, Ph.D.
* President, Chief Operating Officer and
- -------------------------------------------- Director
J. Claude Bennett, M.D.
* Senior Vice President, Secretary, Chief
- -------------------------------------------- Scientific Officer and Director
John A. Montgomery, Ph.D.
* Chief Financial Officer (principal financial
- -------------------------------------------- and accounting officer)
Ronald E. Gray
* Director
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William W. Featheringill
* Director
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Edwin A. Gee, Ph.D.
* Director
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Zola P. Horovitz, Ph.D.
* Director
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Joseph H. Sherrill, Jr.
* Director
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William M. Spencer, III
* Director
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Randolph C. Steer, M.D., Ph.D.
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*By: /s/ CHARLES E. BUGG
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Charles E. Bugg, Ph.D.
ATTORNEY-IN-FACT**
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** Pursuant to the power of attorney filed as part of the signature page to the
Registration Statement on Form S-3, No. 333-87669, filed September 23, 1999.
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EXHIBIT INDEX
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1.1 Form of Underwriting Agreement.+
4.1 Specimen certificate for shares of the Registrant's Common
Stock, incorporated herein by reference to Exhibit 4.1 the
Registrant's Registration Statement No. 33-73868.
4.2 Provisions of the Composite Certificate of Incorporation and
By-Laws of the Registrant defining rights of holders of
Common Stock of the Registrant, incorporated herein by
reference to Exhibits 3.1 and 3.2 to the Company's Form 10-Q
for the second quarter ending June 30, 1995 dated August 11,
1995.
5.1 Opinion of Brobeck, Phleger & Harrison LLP.+
23.1 Consent of Brobeck, Phleger & Harrison LLP (included in the
opinion filed as Exhibit 5.1).+
23.2 Consent of Ernst & Young LLP, independent accountants.+
23.3 Consent of Pollock, Vande Sande & Amernick, R.L.L.P.,
special patent counsel to the Registrant.++
24.1 Power of Attorney (included with signature page).+
27.1 Financial Data Schedule.+
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+ Previously filed
++Filed herewith.
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EXHIBIT 23.3
CONSENT OF EXPERTS
We hereby consent to the reference to our firm under the caption "Experts"
in the Registration Statement (Form S-3, No. 333-87669) and the related
Prospectus of BioCryst Pharmaceuticals, Inc. for the registration of 2,300,000
shares of its common stock.
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/s/ BURTON A. AMERNICK
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Burton A. Amernick
Pollock, Vande Sande & Amernick,
R.L.L.P.
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Washington, D.C.
November 2, 1999
