exv10w2








 




    Exhibit
10.2



 




    BIOCRYST
    PHARMACEUTICALS, INC.

    EMPLOYEE STOCK PURCHASE PLAN

    

    (As Amended and Restated March 31, 2010)



 




    I.  PURPOSE
    OF THE PLAN



 



    This Employee Stock Purchase Plan is intended to promote the
    interests of BioCryst Pharmaceuticals, Inc. by providing
    eligible employees with the opportunity to acquire a proprietary
    interest in the Corporation through participation in a payroll
    deduction based employee stock purchase plan designed to qualify
    under Section 423 of the Code. Capitalized terms herein
    shall have the meanings assigned to such terms in the attached
    Appendix.



 


		
	
    II.  
	
    ADMINISTRATION
    OF THE PLAN




 



    The Plan Administrator shall have full authority to interpret
    and construe any provision of the Plan and to adopt such rules
    and regulations for administering the Plan as it may deem
    necessary in order to comply with the requirements of Code
    Section 423. Decisions of the Plan Administrator shall be
    final and binding on all parties having an interest in the Plan.



 


		
	
    III.  
	
    STOCK
    SUBJECT TO PLAN




 



    A. The stock purchasable under the Plan shall be shares of
    authorized but unissued or reacquired Common Stock, including
    shares of Common Stock purchased on the open market. The maximum
    number of shares of Common Stock which may be issued over the
    term of the Plan shall not exceed 825,000 shares.



 



    B. In the event any change is made to the Common Stock by
    reason of any stock split, stock dividend, recapitalization,
    combination of shares, exchange of shares or other change
    affecting the outstanding Common Stock as a class without the
    Corporation’s receipt of consideration, appropriate
    adjustments shall be made to (i) the maximum number and
    class of securities issuable under the Plan, (ii) the
    maximum number and class of securities purchasable per
    Participant on any one Purchase Date and (iii) the number
    and class of securities and the price per share in effect under
    each outstanding purchase right in order to prevent the dilution
    or enlargement of benefits thereunder.



 


		
	
    IV.  
	
    PURCHASE
    PERIODS




 



    A. Shares of Common Stock shall be offered for purchase
    under the Plan through a series of successive purchase periods
    until such time as (i) the maximum number of shares of
    Common Stock available for issuance under the Plan shall have
    been purchased or (ii) the Plan shall have been sooner
    terminated.



 



    B. Each purchase period shall have a duration of six
    (6) months. Purchase periods shall run from the first
    business day in February to the last business day in July and
    from the first business day of August to the last business day
    of January.



 


		
	
    V.  
	
    ELIGIBILITY




 



    A. Each individual who is an Eligible Employee on the start
    date of any purchase period shall be eligible to participate in
    the Plan for that purchase period.



 



    B. To participate in the Plan for a particular purchase
    period, the Eligible Employee must complete the enrollment forms
    prescribed by the Plan Administrator (including a stock purchase
    agreement and a payroll deduction authorization form) and file
    such forms with the Plan Administrator (or its designate) on or
    before the start date of the purchase period.





    










 






		
	
    VI.  
	
    PAYROLL
    DEDUCTIONS




 



    A. The payroll deduction authorized by the Participant for
    purposes of acquiring shares of Common Stock under the Plan may
    be any multiple of one percent (1%) of the Base Salary paid to
    the Participant during each purchase period, up to a maximum of
    fifteen percent (15%). The deduction rate so authorized shall
    continue in effect for the entire purchase period and for each
    subsequent purchase period, except to the extent such rate is
    changed in accordance with the following guidelines:



 



    (i) The Participant may, at any time during the purchase
    period, reduce his or her rate of payroll deduction to become
    effective as soon as possible after filing of the appropriate
    form with the Plan Administrator. The Participant may not,
    however, effect more than one (1) such reduction per
    purchase period.



 



    (ii) The Participant may, prior to the commencement of any
    new purchase period, increase the rate of his or her payroll
    deduction by filing the appropriate form with the Plan
    Administrator. The new rate (which may not exceed the fifteen
    percent (15%) maximum) shall become effective as of the start
    date of the new purchase period.



 



    B. Payroll deductions shall begin on the first payday
    following the start date of the purchase period and shall
    (unless sooner terminated by the Participant) continue through
    the payday ending with or immediately prior to the last day of
    the purchase period. The amounts so collected shall be credited
    to the Participant’s book account under the Plan, but no
    interest shall be paid on the balance from time to time
    outstanding in such account. The amounts collected from the
    Participant shall not be held in any segregated account or trust
    fund and may be commingled with the general assets of the
    Corporation and used for general corporate purposes.



 



    C. Payroll deductions shall automatically cease upon the
    termination of the Participant’s purchase right in
    accordance with the provisions of the Plan.



 



    D. The Participant’s acquisition of Common Stock under
    the Plan during any purchase period shall neither limit nor
    require the Participant’s acquisition of Common Stock
    during any subsequent purchase period.



 


		
	
    VII.  
	
    PURCHASE
    RIGHTS




 



    A. Grant of Purchase Right. A Participant
    shall be granted a separate purchase right on the start date of
    each purchase period in which he or she participates. The
    purchase right shall grant the Participant the right to purchase
    shares of Common Stock on the Purchase Date upon the terms set
    forth below. The Participant shall execute a stock purchase
    agreement embodying such terms and such other provisions (not
    inconsistent with the Plan) as the Plan Administrator may deem
    advisable.



 



    Under no circumstances shall purchase rights be granted under
    the Plan to any Eligible Employee if such individual would,
    immediately after the grant, own (within the meaning of Code
    Section 424(d)) or hold outstanding options or other rights
    to purchase, stock possessing five percent (5%) or more of the
    total combined voting power or value of all classes of stock of
    the Corporation or any Corporate Affiliate.



 



    B. Exercise of the Purchase Right. Each
    purchase right shall be automatically exercised on the Purchase
    Date, and shares of Common Stock shall accordingly be purchased
    on behalf of each Participant (other than Participants whose
    payroll deductions have previously been refunded in accordance
    with the Termination of Purchase Right provisions below) on such
    date. The purchase shall be effected by applying the
    Participant’s payroll deductions for the purchase period
    (together with any carryover deductions from the preceding
    purchase period) to the purchase of whole shares of Common Stock
    (subject to the limitation on the maximum number of shares
    purchasable per Participant on any one Purchase Date) at the
    purchase price in effect for that purchase period.



 



    C. Purchase Price. The purchase price per
    share of Common Stock on any Purchase Date shall be equal to
    eighty-five percent (85%) of the lower of (i) the Fair
    Market Value per share of Common Stock on the start date of the
    purchase period or (ii) the Fair Market Value per share of
    Common Stock on the Purchase Date.





    










 







    D. Number of Purchasable Shares. The number
    of shares purchasable by a Participant on any Purchase Date
    shall be the number of whole shares obtained by dividing the
    amount collected from the Participant through payroll deductions
    during the purchase period ending with such Purchase Date
    (together with any carryover deductions from the preceding
    purchase period) by the purchase price in effect for that
    Purchase Date. However, the maximum number of shares of Common
    Stock purchasable per Participant on any one Purchase Date shall
    not exceed Three Thousand (3,000) shares, subject to periodic
    adjustments in the event of certain changes in the
    Corporation’s capitalization.



 



    E. Excess Payroll Deductions. Any payroll
    deductions not applied to the purchase of shares of Common Stock
    on any Purchase Date because they are not sufficient to purchase
    a whole share of Common Stock shall be held for the purchase of
    Common Stock on the next Purchase Date. However, any payroll
    deductions not applied to the purchase of Common Stock by reason
    of the limitation on the maximum number of shares purchasable by
    the Participant on the Purchase Date shall be promptly refunded.



 



    F. Termination of Purchase Right. The
    following provisions shall govern the termination of outstanding
    purchase rights:



 



    (i) A Participant may, at any time prior to the last day of
    the purchase period, terminate his or her outstanding purchase
    right by filing the appropriate form with the Plan Administrator
    (or its designate), and no further payroll deductions shall be
    collected from the Participant with respect to the terminated
    purchase right. Any payroll deductions collected during the
    purchase period in which such termination occurs shall, at the
    Participant’s election, be immediately refunded or held for
    the purchase of shares on the next Purchase Date. If no such
    election is made at the time such purchase right is terminated,
    then the payroll deductions collected with respect to the
    terminated right shall be refunded as soon as possible.



 



    (ii) The termination of such purchase right shall be
    irrevocable, and the Participant may not subsequently rejoin the
    purchase period for which the terminated purchase right was
    granted. In order to resume participation in any subsequent
    purchase period, such individual must re-enroll in the Plan (by
    making a timely filing of the prescribed enrollment forms) on or
    before the start date of the new purchase period.



 



    (iii) Should the Participant cease to remain an Eligible
    Employee for any reason (including death, disability or change
    in status) while his or her purchase right remains outstanding,
    then that purchase right shall immediately terminate, and all of
    the Participant’s payroll deductions for the purchase
    period in which such cessation of Eligible Employee status
    occurs shall be immediately refunded.



 



    G. Corporate Transaction. In the event of a
    Corporate Transaction during the purchase period, each
    outstanding purchase right shall automatically be exercised,
    immediately prior to the Effective Date of such Corporate
    Transaction, by applying the payroll deductions of each
    Participant for the purchase period to the purchase of whole
    shares of Common Stock at a purchase price per share equal to
    eighty-five percent (85%) of the lower of (i) the Fair
    Market Value per share of Common Stock on the start date of the
    purchase period or (ii) the Fair Market Value per share of
    Common Stock immediately prior to the effective date of such
    Corporate Transaction. However, the applicable share limitations
    per Participant shall continue to apply to any such purchase.



 



    The Corporation shall use its best efforts to provide at least
    ten (10)-days prior written notice of the occurrence of any
    Corporate Transaction, and Participants shall, following the
    receipt of such notice, have the right to terminate their
    outstanding purchase rights prior to the effective date of the
    Corporate Transaction.



 



    H. Proration of Purchase Rights. Should the
    total number of shares of Common Stock to be purchased pursuant
    to outstanding purchase rights on any particular date exceed the
    number of shares then available for issuance under the Plan, the
    Plan Administrator shall make a pro-rata allocation of the
    available shares on a uniform and nondiscriminatory basis, and
    the payroll deductions of each Participant, to the extent in
    excess of the aggregate purchase price payable for the Common
    Stock pro-rated to such individual, shall be refunded.



 



    I. Assignability. During the
    Participant’s lifetime, the purchase right shall be
    exercisable only by the Participant and shall not be assignable
    or transferable by the Participant.





    










 







    J. Stockholder Rights. A Participant shall
    have no stockholder rights with respect to the shares subject to
    his or her outstanding purchase right until the shares are
    purchased on the Participant’s behalf in accordance with
    the provisions of the Plan and the Participant has become a
    holder of record of the purchased shares.



 


		
	
    VIII.  
	
    ACCRUAL
    LIMITATIONS




 



    A. No Participant shall be entitled to accrue rights to
    acquire Common Stock pursuant to any purchase right outstanding
    under this Plan if and to the extent such accrual, when
    aggregated with (i) rights to purchase Common Stock accrued
    under any other purchase right granted under this Plan and
    (ii) similar rights accrued under other employee stock
    purchase plans (within the meaning of Code
    Section 423) of the Corporation or any Corporate
    Affiliate, would otherwise permit such Participant to purchase
    more than Twenty- Five Thousand Dollars ($25,000) worth of stock
    of the Corporation or any Corporate Affiliate (determined on the
    basis of the Fair Market Value of such stock on the date or
    dates such rights are granted) for each calendar year such
    rights are at any time outstanding.



 



    B. For purposes of applying such accrual limitations, the
    following provisions shall be in effect:



 



    (i) The right to acquire Common Stock under each purchase
    right shall accrue on the Purchase Date in effect for the
    purchase period for which such right is granted.



 



    (ii) No right to acquire Common Stock under any outstanding
    purchase right shall accrue to the extent the Participant has
    already accrued in the same calendar year the right to acquire
    Common Stock under one (1) or more other purchase rights at
    a rate equal to Twenty-Five Thousand Dollars ($25,000) worth of
    Common Stock (determined on the basis of the Fair Market Value
    of such stock on the date or dates of grant) for each calendar
    year such rights were at any time outstanding.



 



    C. If by reason of such accrual limitations, any purchase
    right of a Participant does not accrue for a particular purchase
    period, then the payroll deductions which the Participant made
    during that purchase period with respect to such purchase right
    shall be promptly refunded.



 



    D. In the event there is any conflict between the
    provisions of this article and one or more provisions of the
    Plan or any instrument issued thereunder, the provisions of this
    article shall be controlling.



 


		
	
    IX.  
	
    EFFECTIVE
    DATE AND TERM OF THE PLAN




 



    A. The Plan was originally adopted by the Board on
    December 9, 1994 and became effective on the Effective Date
    subject to approval by the stockholders of the Corporation and
    the Corporation having complied with all applicable requirements
    of the 1933 Act (including the registration of the shares
    of Common Stock issuable under the Plan on a
    Form S-8
    registration statement filed with the Securities and Exchange
    Commission) and applicable listing requirements of any stock
    exchange (or the NASDAQ Global Market, if applicable) on which
    the Common Stock is listed for trading and all other applicable
    requirements established by law or regulation.



 



    B. Unless sooner terminated by the Board, the Plan shall
    terminate upon the earlier of (i) the date on which all
    shares available for issuance under the Plan shall have been
    sold pursuant to purchase rights exercised under the Plan or
    (ii) the date on which all purchase rights are exercised in
    connection with a Corporate Transaction.



 


		
	
    X.  
	
    AMENDMENT
    OF THE PLAN




 



    The Board may alter, amend, suspend or discontinue the Plan
    following the close of any purchase period. However, the Board
    may not, without the approval of the Corporation’s
    stockholders, (i) materially increase the number of shares
    of Common Stock issuable under the Plan or the maximum number of
    shares purchasable per Participant on any one Purchase Date,
    except for permissible adjustments in the event of certain
    changes in the Corporation’s capitalization,
    (ii) alter the purchase price formula so as to reduce the
    purchase price payable for the shares purchasable under the
    Plan, or (iii) materially increase the benefits accruing to
    Participants under the Plan or materially modify the
    requirements for eligibility to participate in the Plan.





    










 






		
	
    XI.  
	
    GENERAL
    PROVISIONS




 



    A. All costs and expenses incurred in the administration of
    the Plan shall be paid by the Corporation.



 



    B. Nothing in the Plan shall confer upon the Participant
    any right to continue in the employ of the Corporation or any
    Corporate Affiliate for any period of specific duration or
    interfere with or otherwise restrict in any way the rights of
    the Corporation (or any Corporate Affiliate employing such
    person) or of the Participant, which rights are hereby expressly
    reserved by each, to terminate such person’s employment at
    any time for any reason, with or without cause.



 



    C. The provisions of the Plan shall be governed by the laws
    of the State of Alabama without resort to that State’s
    conflict-of-laws
    rules.





    










 








    Schedule A

    

    Corporations
    Participating in

    Employee Stock Purchase Plan

    

    As of the Effective Date



 




    BioCryst
    Pharmaceuticals, Inc.





    










 








    DEFINITIONS



 



    The following definitions shall be in effect under the Plan:



 



    A. Base Salary shall mean the regular base
    salary paid to a Participant by one or more Participating
    Companies during such individual’s period of participation
    in the Plan, plus any pre-tax contributions made by the
    Participant to any Code Section 401(k) salary deferral plan
    or any Code Section 125 cafeteria benefit program now or
    hereafter established by the Corporation or any Corporate
    Affiliate. The following items of compensation shall not be
    included in Base Salary: (i) all overtime payments,
    bonuses, commissions (other than those functioning as base
    salary equivalents), profit-sharing distributions and other
    incentive-type payments and (ii) any and all contributions
    (other than Code Section 401(k) or Code Section 125
    contributions) made on the Participant’s behalf by the
    Corporation or any Corporate Affiliate under any employee
    benefit or welfare plan now or hereafter established.



 



    B. Board shall mean the Corporation’s
    Board of Directors.



 



    C. Code shall mean the Internal Revenue Code
    of 1986, as amended.



 



    D. Common Stock shall mean the
    Corporation’s common stock.



 



    E. Corporate Affiliate shall mean any parent
    or subsidiary corporation of the Corporation (as determined in
    accordance with Code Section 424), whether now existing or
    subsequently established.



 



    F. Corporate Transaction shall mean either of
    the following stockholder-approved transactions to which the
    Corporation is a party:



 



    (i) a merger or consolidation in which securities
    possessing more than fifty percent (50%) of the total combined
    voting power of the Corporation’s outstanding securities
    are transferred to a person or persons different from the
    persons holding those securities immediately prior to such
    transaction, or



 



    (ii) the sale, transfer or other disposition of all or
    substantially all of the assets of the Corporation in complete
    liquidation or dissolution of the Corporation.



 



    G. Corporation shall mean BioCryst
    Pharmaceuticals, Inc., a Delaware corporation, and any corporate
    successor to all or substantially all of the assets or voting
    stock of BioCryst Pharmaceuticals, Inc. which shall by
    appropriate action adopt the Plan.



 



    H. Effective Date shall mean February 1,
    1995. Any Corporate Affiliate which becomes a Participating
    Corporation after such Effective Date shall designate a
    subsequent Effective Date with respect to its
    employee-Participants.



 



    I. Eligible Employee shall mean any person
    who is engaged, on a regularly-scheduled basis of more than
    twenty (20) hours per week for more than five
    (5) months per calendar year, in the rendition of personal
    services to any Participating Corporation as an employee for
    earnings considered wages under Section 3401 (a) of
    the Code.



 



    J. Fair Market Value per share of Common
    Stock on any relevant date shall be determined in accordance
    with the following provisions:



 



    (i) If the Common Stock is at the time traded on the Nasdaq
    Global Market, the Fair Market Value shall be the closing
    selling price per share of Common Stock on the date in question,
    as such price is reported on the Nasdaq Global Market or any
    successor system. If there is no closing selling price for the
    Common Stock on the date in question, then the Fair Market Value
    shall be the closing selling price on the last preceding date
    for which such quotation exists.



 



    (ii) If the Common Stock is at the time listed on any Stock
    Exchange, then the Fair Market Value shall be the closing
    selling price per share of Common Stock on the date in question
    on the Stock Exchange determined by the Plan Administrator to be
    the primary market for the Common Stock, as such price is
    officially quoted in the composite tape of transactions on such
    exchange. If there is no closing






    










 







    selling price for the Common Stock on the date in question, then
    the Fair Market Value shall be the closing selling price on the
    last preceding date for which such quotation exists.



 



    K. 1933 Act shall mean the Securities
    Act of 1933, as amended.



 



    L. 1934 Act shall mean the Securities
    Exchange Act of 1934, as amended.



 



    M. Participant shall mean any Eligible
    Employee of a Participating Corporation who is actively
    participating in the Plan.



 



    N. Participating Corporation shall mean the
    Corporation and such Corporate Affiliate or Affiliates as may be
    authorized from time to time by the Board to extend the benefits
    of the Plan to their Eligible Employees. The Participating
    Corporations in the Plan as of the Effective Date are listed in
    attached Schedule A.



 



    O. Plan shall mean the Corporation’s
    Employee Stock Purchase Plan, as set forth in this document.



 



    P. Plan Administrator shall mean the
    committee of two (2) or more Board members appointed by the
    Board to administer the Plan.



 



    Q. Purchase Date shall mean the last business
    day of each purchase period.



 



    R. Stock Exchange shall mean either the
    American Stock Exchange or the New York Stock Exchange.