Attached files
| file | filename |
|---|---|
| EX-4.1 - EXHIBIT 4.1 - BIOCRYST PHARMACEUTICALS INC | nt10011234x7_ex4-1.htm |
| EX-1.1 - EXHIBIT 1.1 - BIOCRYST PHARMACEUTICALS INC | nt10011234x7_ex1-1.htm |
| 8-K - FORM 8K - BIOCRYST PHARMACEUTICALS INC | nt10011234x7_8k.htm |
Exhibit 5.1
June 1, 2020
BioCryst Pharmaceuticals, Inc.
4505 Emperor Blvd., Suite 200
Durham, North Carolina 27703
| Re: |
BioCryst Pharmaceuticals, Inc.
|
|
Registration Statement on Form S-3 (File No. 333-237820)
|
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3, File No. 333-237820 (the “Registration Statement”) of BioCryst Pharmaceuticals, Inc., a Delaware corporation (the “Company”), filed with the Securities and Exchange Commission
(the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), in connection with the offering by the Company of up to 22,044,447 shares (the “Underwritten Shares”) of the Company’s common stock, par
value $0.01 per share (the “Common Stock”), and pre-funded warrants (the “Warrants,” and together with the Underwritten Shares, the “Securities”) to purchase up to an aggregate of 3,511,111 shares of Common Stock (such shares
issuable upon exercise of the Warrants, the “Warrant Shares”). The Securities will be issued pursuant to the Underwriting Agreement, dated May 27, 2020 (the “Underwriting Agreement,” and together with the Warrants, the “Documents”),
among the Company, J.P. Morgan Securities LLC, and Piper Sandler & Co., as representatives of the underwriters named therein (the “Underwriters”).
In arriving at the opinion expressed below, we have examined originals, or copies certified or otherwise identified to our satisfaction as being true and complete copies of the originals, of forms of the Warrants, specimen Common Stock certificates
and such other documents, corporate records, certificates of officers of the Company and of public officials and other instruments as we have deemed necessary or advisable to enable us to render the opinions set forth below. In our examination, we
have assumed without independent investigation the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all
documents submitted to us as copies.
Based upon the foregoing, and subject to the assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that:
1. The Shares, when issued and delivered to and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and non-assessable;
BioCryst Pharmaceuticals, Inc.
June 1, 2020
Page 2
2. The Warrants, when issued and delivered and paid for in accordance with the terms of the Underwriting Agreement, will be legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms; and
3. The Warrant Shares, when issued upon exercise of the Warrants in accordance with their terms, for the additional consideration specified therein, will be validly issued, fully paid and
non-assessable.
The opinions expressed above are subject to the following exceptions, qualifications, limitations and assumptions:
A. We render no opinion herein as to matters involving the laws of any jurisdiction other than the State of New York and the Delaware General Corporation Law. This opinion is limited to the effect of the current
state of the laws of the State of New York, the Delaware General Corporation Law and the facts as they currently exist. We assume no obligation to revise or supplement this opinion in the event of future changes in such laws or the interpretations
thereof or such facts.
B. The opinion above with respect to the Warrants is subject to (i) the effect of any bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws affecting the rights and remedies of creditors
generally, including without limitation the effect of statutory or other laws regarding fraudulent transfers or preferential transfers, (ii) general principles of equity, including without limitation concepts of materiality, reasonableness, good faith
and fair dealing and the possible unavailability of specific performance, injunctive relief or other equitable remedies regardless of whether enforceability is considered in a proceeding in equity or at law, and (iii) the provisions of Article SIXTH of
the Third Restated Certificate of Incorporation of the Company, as amended.
C. We express no opinion regarding the effectiveness of (i) any waiver of stay, extension or usury laws, (ii) provisions relating to indemnification, exculpation or contribution, to the extent such provisions may
be held unenforceable as contrary to public policy or federal or state securities laws or due to the negligence or willful misconduct of the indemnified party; (iii) any provision in any Document waiving the right to object to venue in any court; (iv)
any agreement to submit to the jurisdiction of any Federal court; (v) any waiver of the right to jury trial or (vi) any provision to the effect that every right or remedy is cumulative and may be exercised in addition to any other right or remedy or
that the election of some particular remedy does not preclude recourse to one or more others.
D. In rendering our opinions expressed in paragraph 3, we have assumed that the Exercise Price (as defined in the Warrants) will not be adjusted to an amount, on a per-share basis, less than the par value of the
Common Stock.
BioCryst Pharmaceuticals, Inc.
June 1, 2020
Page 3
We consent to the filing of this opinion as an exhibit to the Registration Statement, and we further consent to the use of our name under the caption “Legal Matters” in the Registration Statement and the prospectus that forms a part thereof.
In giving these consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission.
Very truly yours,
/s/ Gibson, Dunn & Crutcher LLP