EX-3.1 3 a18-3548_1ex3d1.htm EX-3.1

Exhibit 3.1

 

FIRST AMENDMENT

 

TO

 

AMENDED AND RESTATED BY-LAWS

 

OF

 

BIOCRYST PHARMACEUTICALS, INC.

 

The Amended and Restated By-Laws of BioCryst Pharmaceuticals, Inc., as previously approved and adopted on October 29, 2008 (the “By-Laws”) are hereby amended, effective January 21, 2018, as set forth below.

 

The By-Laws are hereby amended by adding the following Article 8:

 

ARTICLE 8 — Forum for Adjudication of Certain Disputes

 

Section 8.1.  Forum for Adjudication of Certain Disputes.  Unless the corporation consents in writing to the selection of an alternative forum (an “Alternative Forum Consent”), the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, stockholder, employee or agent of the corporation to the corporation or the corporation’s stockholders, (iii) any action asserting a claim against the corporation or any director, officer, stockholder, employee or agent of the corporation arising out of or relating to any provision of the General Corporation Law of Delaware or the corporation’s Certificate of Incorporation or these By-Laws, or (iv) any action asserting a claim against the corporation or any director, officer, stockholder, employee or agent of the corporation governed by the internal affairs doctrine of the State of Delaware; provided, however, that, in the event that the Court of Chancery of the State of Delaware

 



 

lacks subject matter jurisdiction over any such action or proceeding, the sole and exclusive forum for such action or proceeding shall be another state or federal court located within the State of Delaware, in each such case, unless the Court of Chancery (or such other state or federal court located within the State of Delaware, as applicable) has dismissed a prior action by the same plaintiff asserting the same claims because such court lacked personal jurisdiction over an indispensable party named as a defendant therein. Failure to enforce the foregoing provisions would cause the corporation irreparable harm and the corporation shall be entitled to equitable relief, including injunctive relief and specific performance, to enforce the foregoing provisions. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the corporation shall be deemed to have notice of and consented to the provisions of this Section 8.1. The existence of any prior Alternative Forum Consent shall not act as a waiver of the corporation’s ongoing consent right as set forth above in this Section 8.1  with respect to any current or future actions or claims.

 

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Adopted as of: January 21, 2018