exv4w1



 






Exhibit 4.1




STOCK PURCHASE AGREEMENT




     This STOCK PURCHASE AGREEMENT (this “Agreement”) is entered into as of December 14, 2005 by
and among BioCryst Pharmaceuticals, Inc., a Delaware corporation (together with its successors and
permitted assigns, the “Issuer”) and the investors named on the signature pages hereto (together
with their successors and permitted assigns, the “Investors”). Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in Section 6.1.



RECITALS




     WHEREAS, subject to the terms and conditions of this Agreement, the Investors desire to
subscribe for and purchase, and the Issuer desires to issue and sell to the Investors, certain
shares of the Issuer’s common stock, par value $0.01 per share (the “Common Stock”). The Issuer is
offering shares of Common Stock, as provided below, to the Investors at a purchase price of
Thirteen Dollars and Forty-Six Cents ($13.46) per share and on the other terms and conditions
contained in this Agreement (the “Offering”).



     WHEREAS, the Issuer has filed with the SEC the Registration Statements relating to the offer
and sale from time to time of the Issuer’s securities.



     NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Issuer and each of the Investors hereby agree as follows:



ARTICLE 1

PURCHASE AND SALE OF COMMON STOCK




     1.1 Subscription and Issuance of Common Stock. Subject to the terms and conditions of
this Agreement, the Issuer will issue and sell to the Investors and each Investor severally and not
jointly, subscribes for and will purchase from the Issuer the number of shares of Common Stock set
forth on the signature pages of the Investors hereof (the “Shares”) for the aggregate purchase
price set forth on the signature pages of the Investors hereof, which shall be equal to the product
of the number of Shares subscribed for by the Investor times the per share purchase price specified
in the above Recitals to this Agreement (the “Purchase Price”).



     1.2 Board Member. Kleiner Perkins Caufield & Byers Holdings, LLC (“Kleiner Perkins”)
will have the right to appoint a member of the Issuer’s Board as of the Closing Date (“Investor
Director”), who shall initially be Beth Seidenberg. In connection therewith, the Issuer and
Kleiner Perkins shall enter into a Nomination and Observer Agreement in the form of Exhibit
A hereto (the “Nomination Agreement”). The Investor Director may resign from the Board of
Directors at any time without notice and may not be removed from the Board of Directors by the
Issuer without “Cause.” For purposes of this Section 1.3, the following shall constitute “Cause”:
(i) any action by the Investor Director constituting fraud or embezzlement in the course of his
tenure on the Board of Directors, (ii) any conviction of Investor Director of a



 









 







felony which would materially and adversely interfere with the Investor Director’s ability to
perform his or her duties as a member of the Board of Directors; (iii) continued gross neglect or
willful refusal by the Investor Director to perform his or her duties hereunder for a period of ten
(10) days following notice to the Investor Director of such inaction; or (iv) a material breach by
the Investor Director of any other material obligations under this Agreement or the Issuer’s
By-laws if such breach is not curable or, if curable, is not cured within thirty (30) days after
written notice thereof by the Issuer to the Investor Director.



     1.3 Board Observation Rights.



          (a) Subject to the execution of a non-disclosure agreement, customary in form and substance,
as requested in good faith by the Issuer, the Issuer shall allow one representative of TPG
Biotechnology Partners, L.P. (“TPG”), for so long as TPG and its Affiliates beneficially own in the
aggregate at least 375,000 shares of Common Stock, subject to proportional adjustments to reflect
stock-splits, combinations, subdivisions, or the like, to attend all meetings of the Board in a
nonvoting capacity, and in connection with such observer’s attendance, the Issuer shall give such
representative copies of all notices, minutes, consents and other materials, financial or
otherwise, which the Issuer provides to the Board prior to any such meeting. TPG shall provide the
Issuer with written notice identifying the individual who shall exercise board observation rights
on behalf of TPG from time to time, which individual shall be reasonably acceptable to the Issuer.
Effective upon execution and delivery of this Agreement, TPG hereby appoints Fred Cohen as its
initial board observer. TPG shall be responsible for all travel and other expenses incurred by its
representative in attending Board meetings.




          (b) Notwithstanding the provisions of subsection (a), the Board reserves the right, in the
good faith exercise of its reasonable business judgment, to exclude any board observer from (i)
attending any portion(s) of any Board meeting or (ii) receiving materials delivered to the rest of
the Board in connection with such portion(s) of such Board meeting; provided, however, that
notwithstanding the foregoing, the Board may, in the exercise of its reasonable business judgment,
permit such observer to attend such portions of a Board meeting and receive such materials on the
condition that such observer does not trade in the Issuer’s common stock based on such information
or share the contents of the meeting or the materials with any person or entity. The decision of
the Board with respect to any such exclusion shall be final and binding.




ARTICLE 2

CLOSING




     2.1 Closing. The closing of the transactions contemplated herein (the “Closing”)
shall take place on a date designated by the Issuer, which date shall be on or before December 19,
2005 (the “Closing Date”). The Closing shall take place at the offices of Fenwick & West LLP, 801
California Street, Mountain View, California 94041, or at such other time and place as the Issuer
and the Investors mutually agree. At the Closing, unless the Investors and the Issuer otherwise
agree (i) the Investors shall pay the Purchase Price to the Issuer, by wire transfer of immediately
available funds to the account designated on Exhibit C hereto; (ii) the Issuer shall



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issue to the Investors the Shares, and deliver to the Investors certificates for the Shares duly
registered in the name of the Investor; and (iii) all other agreements and other documents
referred to in this Agreement which are required for the Closing shall be executed and delivered
(if that is not done prior to the Closing).



     2.2 Termination. This Agreement may be terminated at any time prior to the Closing:



          (a) by mutual written consent of the Issuer and the Investors;




          (b) by the Investors, upon a breach of any material representation and warranty, covenant or
agreement on the part of the Issuer set forth in this Agreement, or if any material representation
and warranty of the Issuer shall have become untrue in any material respect, in either case such
that the conditions in Section 5.1 would be incapable of being satisfied by the date of the
Closing; or




          (c) by the Issuer upon a breach of any material representation and warranty, covenant or
agreement on the part of the Investors set forth in this Agreement, or if any material
representation and warranty of the Investors shall have become untrue in any material respect, in
either case such that the conditions in Section 5.2 would be incapable of being satisfied by the
date of the Closing.




     2.3 Effect of Termination. In the event of termination of this Agreement pursuant to
Section 2.2, this Agreement shall forthwith become void, there shall be no liability on the part of
the Issuer or the Investor to each other and all rights and obligations of any party hereto shall
cease; provided, however, that nothing herein shall relieve any party from
liability for the willful breach of any of its representations and warranties, covenants or
agreements set forth in this Agreement.



ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF THE ISSUER




     As a material inducement to the Investors entering into this Agreement and subscribing for the
Shares, the Issuer hereby represents and warrants to the Investors as follows (it being understood
that, except in the case of any representation or warranty that by its terms is made only as of a
specified date, each representation and warranty set forth in this Article 3 shall be deemed to be
made by the Issuer both as of the date of this Agreement and, if the Closing occurs, as of the date
of the Closing):



     3.1 Corporate Status. The Issuer is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any business so as to require
such qualification, except for such jurisdictions wherein the failure to be so qualified and in
good standing would not individually or in the aggregate have a material adverse effect on the



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business, results of operations or financial condition of the Issuer (a “Material Adverse Effect”).
The Issuer has no Subsidiaries.



     3.2 Corporate Power and Authority. The Issuer has the corporate power and authority
to execute and deliver this Agreement and the Nomination Agreement and to perform its obligations
hereunder and thereunder, and consummate the transactions contemplated hereby and thereby. The
Issuer has taken all necessary corporate and stockholder action to authorize the execution,
delivery and performance of this Agreement and the Nomination Agreement and the consummation of the
transactions contemplated hereby and thereby.



     3.3 Enforceability. This Agreement and the Nomination Agreement have been duly
executed and delivered by the Issuer and constitute legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights generally and general equitable
principles, regardless of whether such enforceability is considered in a proceeding at law or in
equity.



     3.4 No Violation. The execution and delivery by the Issuer of this Agreement and the
Nomination Agreement, the consummation of the transactions contemplated hereby and thereby, and the
compliance by the Issuer with the terms and provisions hereof and thereof, will not result in a
default under (or give any other party the right, with the giving of notice or the passage of time
(or both), to declare a default or accelerate any obligation under) or violate the Certificate of
Incorporation or Bylaws of the Issuer or any material Contract to which the Issuer is a party
(except to the extent such a default would not, in the case of a Contract, have a Material Adverse
Effect on the Issuer), or any material Requirement of Law applicable to the Issuer, or result in
the creation or imposition of any material Lien upon any of the properties or assets of the Issuer
(except where such Lien would not have a Material Adverse Effect on the Issuer).



     3.5 Consents/Approvals. Except for filings with the SEC and Nasdaq that are permitted
to be made after the date hereof, no consents, filings, authorizations or other actions of any
Governmental Authority are required to be obtained or made by the Issuer for the Issuer’s
execution, delivery and performance of this Agreement which have not already been obtained or made.
No consent, approval, waiver or other action by any Person under any Contract to which the Issuer
is a party or by which the Issuer or any of its properties or assets are bound is required or
necessary for the execution, delivery or performance by the Issuer of this Agreement and the
consummation of the transactions contemplated hereby, except where the failure to obtain such
consents would not have a Material Adverse Effect on the Issuer.



     3.6 Valid Issuance. Upon payment of the Purchase Price by the Investors and delivery
to the Investors of the certificates for the Shares, such Shares will be validly issued, fully paid
and non-assessable.



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     3.7 SEC Reports and Nasdaq Compliance. The Issuer has timely made all filings
required to be made by it under the Exchange Act within the three (3) years prior to the date of
this Agreement (the “SEC Reports”). The SEC Reports, when filed, complied in all material respects
with all applicable requirements of the Exchange Act. None of the SEC Reports, at the time of
filing, contained any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements therein not
misleading in light of the circumstances in which they were made. The Common Stock is currently
listed on the Nasdaq National Market. The Issuer is currently in compliance with all currently
effective inclusion requirements of the Nasdaq National Market. There are no proceedings pending
or to the Issuer’s knowledge threatened against the Issuer relating to the continued listing of the
Common Stock on the Nasdaq National Market and the Issuer has not received any notice of the
delisting of the Common Stock from the Nasdaq National Market. The Shares are qualified for
listing on the Nasdaq National Market.



     3.8 Registration Statements; Effectiveness. The sale and issuance by the Issuer of
the Shares have been validly registered pursuant to the Registration Statements and such Shares of
Common Stock will be issued without a restrictive legend. The Registration Statements have been
declared effective by the SEC and at the time they became effective, and as of the date hereof, the
Registration Statements complied and comply with Rule 415 under the Securities Act. To the
Issuer’s knowledge, no stop order suspending the effectiveness of the Registration Statements has
been issued and no proceeding for that purpose has been initiated or threatened by the SEC. On the
effective dates of the Registration Statements, the Registration Statements and the Prospectuses
fully conformed, and at the date of the Closing, the Registration Statements and the Prospectuses
will fully conform, in all material respects with the applicable provisions of the Securities Act
and the applicable rules and regulations of the SEC thereunder; on the effective dates of the
Registration Statements, the Registration Statements, including the exhibits attached thereto, or
the documents incorporated by reference therein, did not, and at the date of the Closing, the
Registration Statements, including the exhibits attached thereto, the documents incorporated by
reference therein, will not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein
not misleading; on the effective dates of the Registration Statements, the Prospectuses, including
the exhibits attached thereto, or the documents incorporated by reference therein, did not, and on
the date the Prospectus Supplement is filed with the Commission pursuant to Rule 424(b) under the
Securities Act and the date of the Closing, the Prospectuses, including the exhibits attached
thereto, or the documents incorporated by reference therein, will not, contain an untrue statement
of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and when filed with the Commission, the
exhibits attached thereto and the documents incorporated by reference in the Registration
Statements and the Prospectuses, taken as a whole, fully conformed or will fully conform in all
material respects with the applicable provisions of the Exchange Act, and the applicable rules and
regulations of the SEC thereunder.



     3.9 Commissions. The Issuer has not incurred any other obligation for any finder’s or
broker’s or agent’s fees or commissions in connection with the transactions contemplated hereby.



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     3.10 Capitalization. The authorized capital stock of the Issuer consists of
Forty-Five Million (45,000,000) shares of Common Stock and Five Million (5,000,000) shares of
preferred stock, par value $0.01 per share (the “Preferred Stock”). All issued and outstanding
shares of capital stock of the Issuer have been, and as of the Closing Date will be, duly
authorized and validly issued and are fully paid and non-assessable. As of December 13, 2005, the
Issuer has
issued and outstanding 26,519,398 shares of Common Stock and no shares of Preferred Stock.
Except for: (i) the approximately 3,300,000 shares of Common Stock issuable upon exercise of
options outstanding as of December 13, 2005, and (ii) approximately 573,000 shares of Common Stock
reserved for issuance under the Issuer’s equity incentive, stock option or stock purchase plans
described in the SEC Reports, there are not outstanding any options, warrants, rights (including
conversion or preemptive rights) or agreements for the purchase or acquisition from the Issuer of
any shares of its capital stock or any securities convertible into or ultimately exchangeable or
exercisable for any shares of the Issuer’s capital stock (including conversion or preemptive rights
and rights of first refusal and similar rights) or agreements, orally or in writing, for the
purchase or acquisition from the Issuer of any shares of capital stock and the Issuer is not a
party to or subject to any agreement or understanding, and there is no agreement or understanding
between any person and/or entities, which affects or relates to the voting or giving of written
consents with respect to any security or by a director of the Issuer. Except for as set forth in
agreements under which the Issuer has the option to repurchase shares of Common Stock at cost, upon
the occurrence of certain events, such as the termination of employment or services, the Issuer has
no obligation, contingent or otherwise, to redeem or repurchase any equity security or any security
that is a combination of debt and equity.



     3.11 Financial Statements. The consolidated financial statements and financial
schedules of the Issuer included in the SEC Reports, or incorporated by reference in the
Prospectuses, have been prepared in conformity with generally accepted accounting principles
(except, with respect to the unaudited consolidated financial statements, for the footnotes and
subject to customary audit adjustments) applied on a consistent basis, are consistent in all
material respects with the books and records of the Issuer, and accurately present in all material
respects the consolidated financial position, results of operations and cash flow of the Issuer as
of and for the periods covered thereby.



     3.12 Absence of Changes. The Issuer has not sustained since September 30, 2005 any
material loss or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as disclosed in or incorporated by reference in the Prospectuses;
and, since September 30, 2005, there has not been any material change in the capital stock or
long-term debt of the Issuer, the Issuer has not incurred any material liabilities or obligations,
direct or contingent, nor entered into any material transactions not in the ordinary course of
business and there has not been any Material Adverse Change otherwise than as disclosed in or
incorporated by reference in the Prospectuses.



     3.13 Litigation. Except as set forth in or incorporated by reference in the
Prospectuses, there is no action, suit, proceeding or investigation pending or, to the Issuer’s
knowledge, currently threatened against the Issuer that questions the validity of this Agreement



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or the Nomination Agreement or the right of the Issuer to enter into it, or to consummate the
transactions contemplated hereby, or that might result, either individually or in the aggregate, in
a Material Adverse Effect on the Issuer or any material change in the current equity ownership of
the Issuer. The foregoing includes, without limitation, actions pending or, to the Issuer’s
knowledge, threatened involving the prior employment of any of the Issuer’s employees or their use
in connection with the Issuer’s business of any information or techniques allegedly
proprietary to any of their former employers. The Issuer is not a party to or subject to the
provisions of any order, writ, injunction, judgment or decree of any court or government agency or
instrumentality. There is no action, suit, proceeding or investigation by the Issuer currently
pending or which the Issuer currently intends to initiate.



     3.14 Rights of Registration and Voting Rights. Except as contemplated in this
Agreement or as set forth in or incorporated by reference in the Prospectuses, the Issuer has not
granted or agreed to grant any registration rights, including piggyback rights, to any person or
entity, and no stockholder of the Issuer has entered into any agreements with respect to the voting
of capital shares of the Issuer.



     3.15 Sarbanes-Oxley Act; Foreign Corrupt Practices Act.



          (a) The Issuer is in substantial compliance with the applicable provisions of the
Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), and the rules and regulations promulgated
thereunder, that are effective and intends to comply substantially with other applicable provisions
of the Sarbanes-Oxley Act, and the rules and regulations promulgated thereunder, upon the
effectiveness of such provisions. Since the date of the Issuer’s most recent Quarterly Report on
Form 10-Q, there have been no changes in internal controls over financial reporting or disclosure
controls and procedures.




          (b) The Issuer has not and, to the knowledge of the Issuer, no director, officer, agent,
employee or other person associated with or acting on behalf of the Issuer, has (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds; (iii) violated or is in violation of
any provision of the U.S. Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.




     3.16 Intellectual Property. The Issuer owns and possesses all right, title and
interest in and to, or has duly licensed from third parties, all patents, patent rights, trade
secrets, inventions, know-how, trademarks, trade names, copyrights, service marks and other
proprietary rights (“Intellectual Property”) material to the business of the Issuer. The Issuer
has not received any notice of infringement, misappropriation of conflict from any third party as
to such that has not been resolved or disposed of and to the Issuer’s knowledge, the Issuer has not
infringed, missapropriated, or otherwise conflicted with Intellectual Property of any third
parties, which infringement, missapropriation of conflict would individually or in the aggregate
have a Material Adverse Effect.



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     3.17 Environmental Laws. The Issuer has obtained all permits, licenses and other
authorizations which are required under United States federal, state, provincial and local laws
relating to pollution or protection of the environment, including laws related to emissions,
discharges, releases or threatened releases of pollutants, contaminants or hazardous or toxic
material or wastes into ambient air, surface water, ground water or land, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling
or pollutants, contaminants or hazardous or toxic materials or wastes (“Environmental Laws”),
except where the failure to obtain such permits, license or authorizations and are also in
full compliance with all other limitations, restrictions, conditions and requirements contained in
the Environmental Laws or contained in any plan, except where the failure to do so comply would not
have a Material Adverse Effect. The Issuer is not aware of, nor has the Issuer received notice of,
any events, conditions, circumstances, actions or plans which may interfere with or prevent
continued compliance or which would give rise to any liability under any Environmental Laws.



     3.18 Title to Properties. The Issuer has good title to all the properties and assets
reflected as owned by it in the financial statements contained in or incorporated by reference in
the Prospectuses, subject to no Lien except (i) those, if any, reflected in such financial
statements or (ii) those which are not material in amount and do not adversely affect the use made
and intended to be made of such property by the Issuer. The Issuer holds its leased properties
under valid and binding leases. Except as disclosed in or incorporated by reference in the
Prospectuses, the Issuer owns or leases all such properties as are necessary to its operations as
now conducted.



     3.19 Investment Company Act. The Issuer is not an “investment company” or a company
“controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940,
as amended and does not intend to conduct its business in a manner in which it would become, an
“investment company” as defined in Section 3(a) of the Investment Company Act of 1940, as amended.



     3.20 Insurance. The Issuer maintains insurance of the types, against such losses and
in the amounts and with such insurers as are reasonably prudent, including, but not limited to,
insurance covering all real and personal property owned or leased by the Issuer against theft,
damage, destruction, acts of vandalism and all other risks customarily insured against by similarly
situated companies, all of which insurance is in full force and effect.



     3.21 ERISA; Employee Matters. The Issuer is in compliance in all material respects
with all presently applicable provisions of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations thereunder (“ERISA”); no
“reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as
defined in ERISA) for which the Issuer would have any material liability; the Issuer has not
incurred and does not expect to incur any material liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of
the Internal Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the “Code”); and each “pension plan” for which the Issuer would have
any liability that is intended to be qualified under Section 401(a) of the Code is so



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qualified in
all material respects and nothing has occurred, whether by action or by failure to act, which would
cause the loss of such qualification. The Issuer is not involved in any material labor dispute
with its employees nor is any such dispute, to the Issuer’s knowledge, threatened or imminent.



     3.22 Permits. The Issuer has made all filings, applications and submissions required
by, and possesses all approvals, licenses, certificates, certifications, clearances, consents,
exemptions, marks, notifications, orders, permits and other authorizations issued by, the
appropriate federal, state or foreign regulatory authorities (including, without limitation,
the U.S. Food and Drug Administration of the Department of Health and Human Services (the “FDA”),
and any other foreign, federal, state or local government or regulatory authorities performing
functions similar to those performed by the FDA) necessary for the ownership or lease of its
properties or to conduct its businesses (collectively, “Permits”), except for such Permits the
failure of which to possess, obtain or make the same would not reasonably be expected to have a
Material Adverse Effect; and the Issuer has not received any written notice of proceedings relating
to the limitation, revocation, cancellation, suspension, modification or non-renewal of any such
Permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect, and has no reason to believe that any such license,
certificate, permit or authorization will not be renewed in the ordinary course.



     3.23 Clinical Studies. The clinical, pre-clinical and other studies and tests
conducted by or on behalf of or sponsored by the Issuer were and, if still pending, are being
conducted in accordance in all material respects with all statutes, laws, rules and regulations, as
applicable (including, without limitation, those administered by the FDA or by any foreign,
federal, state or local governmental or regulatory authority performing functions similar to those
performed by the FDA). The Issuer has not received any notices or other correspondence from the
FDA or any other foreign, federal, state or local governmental or regulatory authority performing
functions similar to those performed by the FDA with respect to any ongoing clinical or
pre-clinical studies or tests requiring the termination or suspension of such studies or tests.



     3.24 Compliance Program. The Issuer has established and administers a compliance
program applicable to the Issuer, to assist the Issuer and the directors, officers and employees of
the Issuer in complying with applicable regulatory guidelines (including, without limitation, those
administered by the FDA and any other foreign, federal, state or local governmental or regulatory
authority performing functions similar to those performed by the FDA).



     3.25 Disclosure. To the best of Issuer’s knowledge, neither this Agreement nor any
other documents, certificates or instruments furnished to the Investors by or on behalf of the
Issuer contain any untrue statement of a material fact or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not
misleading.



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ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF THE INVESTORS




     As a material inducement to the Issuer entering into this Agreement and issuing the Shares,
each Investor represents and warrants to the Issuer, severally and not jointly, as follows:



     4.1 Power and Authority. The Investor, if other than a natural person, is an entity
duly organized, validly existing and in good standing under the laws of the state of its
incorporation or formation. The Investor has the corporate, partnership or other power and
authority under applicable law to execute and deliver this Agreement and with respect to Kleiner
Perkins, the Nomination Agreement, and consummate the transactions contemplated hereby, and thereby
and has all necessary authority to execute, deliver and perform its obligations under this
Agreement and consummate the transactions contemplated hereby and thereby. The Investor has
taken all necessary action to authorize the execution, delivery and performance of this
Agreement and with respect to Kleiner Perkins, the Nomination Agreement and the transactions
contemplated hereby and thereby.



     4.2 No Violation. The execution and delivery by the Investor of this Agreement and
with respect to Kleiner Perkins, the Nomination Agreement, the consummation of the transactions
contemplated hereby and thereby, and the compliance by the Investor with the terms and provisions
hereof, will not result in a default under (or give any other party the right, with the giving of
notice or the passage of time (or both), to declare a default or accelerate any obligation under)
or violate any charter or similar documents of the Investor, or violate any Requirement of Law
applicable to the Investor which violation would reasonably be expected to prevent the consummation
of the transactions contemplated hereby.



     4.3 Consents/Approvals. No consents, filings, authorizations or actions of any
Governmental Authority are required for the Investor’s execution, delivery and performance of this
Agreement or with respect to Kleiner Perkins, the Nomination Agreement.



     4.4 Enforceability. Each of this Agreement and with respect to Kleiner Perkins, the
Nomination Agreement, has been duly executed and delivered by the applicable Investor and
constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor
in accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditor’s
rights generally and general equitable principles, regardless of whether enforceability is
considered in a proceeding at law or in equity.



     4.5 Commissions. The Investor has not incurred any obligation for any finder’s or
broker’s or agent’s fees or commissions in connection with the transactions contemplated hereby.



     4.6 No General Solicitation. At no time was Investor presented with or solicited by
any publicly issued or circulated newspaper, mail, radio, television or other form of general
advertising or solicitation in connection with the Shares.



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ARTICLE 5

CONDITIONS TO CLOSING




     5.1 Conditions to the Obligations of the Investors. The obligations of the Investors
to proceed with respect to its purchase of the Shares at the Closing is subject to the following
conditions any and all of which may be waived, in whole or in part, to the extent permitted by
applicable law:



          (a) Representations and Warranties. Each of the representations and warranties of the
Issuer contained in this Agreement shall be true and correct in all material respects as of the
Closing as though made on and as of the Closing, except (i) for changes specifically permitted by
this Agreement, and (ii) that those representations and warranties which address matters only as of
a particular date shall remain true and correct as of such date, except
in any case for such failures to be true and correct which would not, individually or in the
aggregate, have a Material Adverse Effect on the Issuer.




          (b) Agreement and Covenants. The Issuer shall have performed or complied in all
material respects with all agreements and covenants required by this Agreement to be performed or
complied with by it on or prior to the Closing.




          (c) Officers’ Certificates. The Investors shall have received certificates of the
Chief Executive Officer and Chief Financial Officer of the Issuer, dated as of the Closing Date,
certifying in their capacity as officers of the Issuer, as to the fulfillment of the conditions set
forth in subparagraphs (a) and (b), certifying that the SEC has not issued an order preventing or
suspending the use of the Registration Statements or the Prospectuses, and that for that purpose,
no proceedings have been instituted or are pending or, to their knowledge, contemplated by the SEC,
and shall have received a certificate, dated as of the Closing Date and executed on behalf of the
Issuer by its Secretary, certifying the Issuer’s (A) certificate of incorporation, (B) bylaws, (C)
board resolutions approving and adopting this Agreement, and (D) other matters which the parties
may reasonably agree are necessary to facilitate the adoption of this Agreement and the
consummation of the transactions contemplated hereby.




          (d) No Material Adverse Change. At Closing, the Chief Executive Officer and the Chief
Financial Officer of the Issuer shall have provided a certificate to the Investors confirming that
there have been no Material Adverse Changes in the condition (financial or otherwise) or prospects
of the Issuer from the date of the financial statements included in the SEC Documents other than as
set forth or contemplated in the Purchase Agreement.




          (e) Nomination Agreement. The Issuer and Kleiner Perkins shall have executed and
delivered the Nomination Agreement and the Issuer shall have appointed the initial Investor
Director to serve as a member of the third class of directors, with a term of office to expire at
the annual meeting of the stockholders of the Issuer to be held in 2007.




          (f) Stock Certificates. The Issuer shall have delivered to the Investor certificates
representing that number of Shares purchased by such Investor.




          (g) No Order. No governmental authority or other agency or commission or federal or
state court of competent jurisdiction shall have enacted, issued, promulgated, enforced




11









 







or entered
any statute, rule, regulation, executive order, decree, injunction, or other order (whether
temporary, preliminary or permanent) which is in effect and which materially restricts, prevents or
prohibits consummation of the Closing or any transaction contemplated by this Agreement or the
Nomination Agreement.




          (h) Opinion of Issuer’s Counsel. The Investors shall have received an opinion of
Issuer’s counsel, dated the Closing Date, in the form of Exhibit D.




          (i) Prospectus Supplement. The Prospectus Supplement shall have been filed with the
SEC pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed
for such filing, no stop order suspending the effectiveness of the Registration Statements or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the SEC, and the Issuer shall have delivered the
Prospectus Supplement to the Investors in accordance with the federal securities laws.




     5.2 Conditions to the Obligations of the Issuer. The obligations of the Issuer to
proceed with the Closing is subject to the following conditions any and all of which may be waived,
in whole or in part, to the extent permitted by applicable law:



          (a) Representations and Warranties. Each of the representations and warranties of the
Investors contained in this Agreement shall be true and correct as of the Closing as though made on
and as of the Closing, except (i) for changes specifically permitted by this Agreement, and (ii)
that those representations and warranties which address matters only as of a particular date shall
remain true and correct as of such date.




          (b) Agreement and Covenants. The Investors shall have performed or complied in all
material respects with all agreements and covenants required by this Agreement to be performed or
complied with by them on or prior to the Closing.




          (c) No Order. No governmental authority or other agency or commission or federal or
state court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered
any statute, rule, regulation, executive order, decree, injunction, or other order (whether
temporary, preliminary or permanent) which is in effect and which materially restricts, prevents or
prohibits consummation of the Closing or any transaction contemplated by this Agreement or the
Nomination Agreement.




          (d) Purchase Price. The Investors shall have delivered the purchase price for the
Shares.




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ARTICLE 6

MISCELLANEOUS




     6.1 Defined Terms. As used herein the following terms shall have the following
meanings:



          “Affiliate” shall have the meaning ascribed to it in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act, as in effect on the date hereof.




          “Certificate of Incorporation” means the Issuer’s Certificate of Incorporation, as the same
may be supplemented, amended or restated from time to time.




          “Contract” means any material indenture, lease, sublease, loan agreement, mortgage, note,
restriction, commitment, obligation or other contract, agreement or instrument.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended and the rules and
regulations thereunder, or any similar successor statute.




          “GAAP” means generally accepted accounting principles in effect in the United States of
America from time to time.




          “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, and any entity or official exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.




          “Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind
(including any conditional sale or other title retention agreement, any lease in the nature
thereof, and the filing of or agreement to give any financing statement under the Uniform
Commercial Code or comparable law or any jurisdiction in connection with such mortgage, pledge,
security interest, encumbrance, lien or charge).




          “Material Adverse Change (or Effect)” means a material and adverse change in (or effect on)
the financial condition, properties, assets, liabilities, rights, obligations, operations or
business, of a Person and its Subsidiaries taken as a whole.




          “Person” means an individual, partnership, corporation, business trust, joint stock company,
estate, trust, unincorporated association, joint venture, Governmental Authority or other entity,
of whatever nature.




          “Prospectuses” means the final base prospectuses dated January 5, 2004 and September 20, 2005
forming a part of the respective Registration Statements. References herein to the term
“Prospectuses” as of any date shall mean such prospectus, as amended or supplemented to such date,
including by the Prospectus Supplement (as defined below), and including all documents incorporated
by reference therein as of such date.




          “Prospectus Supplement” means the supplement to the Prospectuses dated December 14, 2005
relating to the sale of the Shares.




          “Registration Statements” means (a) the Registration Statement on Form S-3 (File No.
333-111226), which registration statement was declared effective by the SEC on January 5, 2004, and
(b) the Registration Statement on Form S-3 (File No. 333-128087) filed by the Issuer, which
registration statement was declared effective by the SEC on September 20, 2005.




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          “Requirements of Law” means as to any Person, the certificate of incorporation, bylaws or
other organizational or governing documents of such person, and any domestic or foreign and
federal, state or local law, rule, regulation, statute or ordinance or determination of any
arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon
such Person or any of its properties or to which such Person or any of its property is subject.




          “SEC” means the Securities and Exchange Commission.




          “Securities Act” means the Securities Act of 1933, as amended and the rules and regulations
thereunder, or any similar successor statute.




          “Subsidiary” means as to any Person, a corporation or limited partnership of which more than
50% of the outstanding capital stock or partnership interests having full voting power is at the
time directly or indirectly owned or controlled by such Person.




     6.2 Other Definitional Provisions.



          (a) All terms defined in this Agreement shall have the defined meanings when used in any
certificates, reports or other documents made or delivered pursuant hereto or thereto, unless the
context otherwise requires.




          (b) Terms defined in the singular shall have a comparable meaning when used in the plural, and
vice versa.




          (c) All accounting terms shall have a meaning determined in accordance with GAAP.




          (d) As used herein, the neuter gender shall also denote the masculine and feminine, and the
masculine gender shall also denote the neuter and feminine, where the context so permits.




          (e) The words “hereof,” “herein” and “hereunder,” and words of similar import, when used in
this Agreement shall refer to this Agreement as a whole (including any Exhibits hereto) and not to
any particular provision of this Agreement.




     6.3 Survival of Representations, Warranties and Covenants. Notwithstanding any
investigation made by any party to this Agreement, all representations, warranties and covenants
made by the Issuer and each of the Investors herein shall survive the execution of this Agreement,
the delivery to the Investors of the Shares being purchased and the payment therefor.



     6.4 Notices. All notices, requests, demands, claims, and other communications
hereunder shall be in writing and shall be delivered by certified or registered mail (first class
postage pre-paid), guaranteed overnight delivery, or facsimile transmission if such transmission is
confirmed by delivery by certified or registered mail (first class postage pre-paid) or guaranteed
overnight delivery, to the following addresses and telecopy numbers (or to such other



14









 







addresses or telecopy numbers which such party shall subsequently designate in writing to the other party):



          (a) if to the Issuer to:



BioCryst Pharmaceuticals, Inc.

2190 Parkway Lake Drive

Birmingham, AL 35244

Facsimile No. (205) 444-4640



          (b) if to the Investor to the address set forth next to its name on the signature page hereto.




     Each such notice or other communication shall for all purposes of this Agreement be treated as
effective or having been given when delivered if delivered by hand, by messenger or by courier, or
if sent by facsimile, upon confirmation of receipt.



     6.5 Entire Agreement. This Agreement (including the Exhibits attached hereto) and
other documents delivered at the Closing pursuant hereto, contain the entire understanding of the
parties in respect of its subject matter and supersedes all prior agreements and understandings
between or among the parties with respect to such subject matter. The Exhibits constitute a part
hereof as though set forth in full above.



     6.6 Costs; Expenses; Taxes. The Issuer shall pay the reasonable fees and
out-of-pocket expenses of Fenwick & West LLP, special counsel to Kleiner Perkins, in connection
with the transactions contemplated hereby, including without limitation, in connection with due
diligence investigations and the preparation, execution and delivery of this Agreement, the
Nomination Agreement and the agreements relating hereto and thereto, and the issuance of the
Shares. Any sales tax, stamp duty, deed transfer or other tax (except taxes based on the income of
the Investor) arising out of the issuance of the Shares by the Issuer to the Investor and
consummation of the transactions contemplated by this Agreement shall be paid by the Issuer.



     6.7 Amendment; Waiver. This Agreement may not be modified, amended, supplemented,
canceled or discharged, except by written instrument executed by each party hereto. No failure to
exercise, and no delay in exercising, any right, power or privilege under this Agreement shall
operate as a waiver, nor shall any single or partial exercise of any right, power or privilege
hereunder preclude the exercise of any other right, power or privilege. No waiver of any breach of
any provision shall be deemed to be a waiver of any preceding or succeeding breach of the same or
any other provision, nor shall any waiver be implied from any course of dealing between the
parties. No extension of time for performance of any obligations or other acts hereunder or under
any other agreement shall be deemed to be an extension of the time for performance of any other
obligations or any other acts. The rights and remedies of the parties under this Agreement are in
addition to all other rights and remedies, at law or equity, that they may have against each other.



15









 





     6.8 Binding Effect; Assignment. The rights and obligations of this Agreement shall
bind and inure to the benefit of the parties and their respective successors and legal assigns.
The rights and obligations of this Agreement may not be assigned by any party without the prior
written consent of the other party.



     6.9 Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be an original but all of which together shall constitute one and the same
instrument.



     6.10 Headings. The headings contained in this Agreement are for convenience of
reference only and are not to be given any legal effect and shall not affect the meaning or
interpretation of this Agreement.



     6.11 Governing Law; Consent to Jurisdiction. This Agreement shall be construed in
accordance with and governed for all purposes by the laws of the State of Delaware applicable to
contracts executed and to be wholly performed within such State. THIS AGREEMENT SHALL BE ENFORCED,
GOVERNED AND CONSTRUED IN ALL RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS PRINCIPLES. FURTHERMORE, THE INVESTOR HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA AND THE UNITED
STATES OF AMERICA FOR THE DISTRICT OF CALIFORNIA IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT.



     6.12 Severability. The parties stipulate that the terms and provisions of this
Agreement are fair and reasonable as of the date of this Agreement. However, any provision of this
Agreement shall be determined by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
If, moreover, any of those provisions shall for any reason be determined by a court of competent
jurisdiction to be unenforceable because excessively broad or vague as to duration, activity or
subject, it shall be construed by limiting, reducing or defining it, so as to be enforceable.



     6.13 Independent Nature of Investors’ Obligations and Rights. The obligations of each
Investor under this Agreement are several and not joint with the obligations of any other Investor,
and no Investor shall be responsible in any way for the performance of the obligations of any other
Investor under this Agreement. Nothing contained herein, and no action taken by any Investor
pursuant hereto or thereto, shall be deemed to constitute the Investors as a partnership, an
association, a joint venture or any other kind of entity, or create a presumption that the
Investors are in any way acting in concert or as a group with respect to such obligations or the
transactions contemplated by this Agreement and the Issuer acknowledges that the Investors are not
acting in concert or as a group with respect to such obligations or the transactions contemplated
by this Agreement, or the agreements contemplated hereto. Each Investor confirms that it is not
acting in concert or as a group with respect to such obligations or



16









 







the transactions contemplated
by this Agreement, or the agreements contemplated hereto, and it has independently participated in
the negotiation of the transaction contemplated hereby with the advice of its own counsel and
advisors. Each Investor shall be entitled to independently protect and enforce its rights,
including, without limitation, the rights arising out of this Agreement, and it shall not be
necessary for any other Investor to be joined as an additional party in any proceeding for such
purpose.



[Remainder of this page intentionally left blank]




17









 





     IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase Agreement to be duly
executed and delivered as of the date first written above.



	 	 	 	 	 
	 	BIOCRYST PHARMACEUTICALS, INC.:

 	 
	 	By:  	     /s/ Michael A. Darwin
 	 
	 	 	Name        Michael A. Darwin 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



[Signature Page to Stock Purchase Agreement]





18









 





Kleiner Perkins Caufield & Byers Holdings, LLC




	 	 	 	 	 
	By:

	 	/s/ Brook H. Byers
	 	 
	 

	 	 	 	 
	Name: Brook H. Byers	 	 
	Title: Managing Member	 	 






ADDRESS FOR NOTICES:

2750 Sand Hill Road

Menlo Park, CA 94025

Facsimile: (650) 233-0300

Tax Identification #: 20-3923027




	 	 	 
	Exact Name to appear on Stock Certificate:

	 	Kleiner Perkins Caufield & Byers Holdings, LLC
	 
	 	 
	Number of Shares Subscribed For:

	 	1,114,414
	 
	 	 
	Aggregate Purchase Price (see Section 1.1):

	 	$15,000,012.44






[Signature Page to Stock Purchase Agreement]




19









 





KPTV, LLC




	 	 	 	 	 
	By:

	 	/s/ L. John Doerr III
	 	 
	 

	 	 	 	 
	Name: L. John Doerr III	 	 
	Title: Managing Member	 	 






ADDRESS FOR NOTICES:

2750 Sand Hill Road

Menlo Park, CA 94025

Facsimile: (650) 233-0300

Tax Identification #: 77-0564784




	 	 	 
	Exact Name to appear on Stock Certificate:

	 	KPTV, LLC
	 
	 	 
	Number of Shares Subscribed For:

	 	371,472
	 
	 	 
	Aggregate Purchase Price (see Section 1.1):

	 	$5,000,013.12






[Signature Page to Stock Purchase Agreement]




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TPG Biotechnology Partners, L.P.

By: TPG Biotechnology Genpar, L.P.

By: TPG Biotech Advisors, LLC




	 	 	 	 	 
	By:

	 	/s/ Jeffery D. Ekberg
	 	 
	 

	 	 	 	 
	Name: Jeffery D. Ekberg	 	 
	Title: Vice President	 	 






ADDRESS FOR NOTICES:

301 Commerce Street, Suite 3300

Forth Worth, TX 76102

Facsimile: (817) 850-4084

Tax Identification #: 40-0001764




	 	 	 
	Exact Name to appear on Stock Certificate:

	 	TPG Biotechnology Partners, L.P.
	 
	 	 
	Number of Shares Subscribed For:

	 	742,943
	 
	 	 
	Aggregate Purchase Price (see Section 1.1):

	 	$10,000,012.78






[Signature Page to Stock Purchase Agreement]





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