BeyondSpring Inc 6-K, filed Jun 12, 2024
BeyondSpring Inc. (BYSI)
6-K
2024-06-12
For: 2024-06-12
View Original
Added on
April 10, 2026
About this 6-K
BeyondSpring Inc filed this 6-K on June 12, 2024.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
Dated June 12, 2024
Commission File Number: 001-38024
BeyondSpring Inc.
BeyondSpring Inc.
100 Campus Drive, West Side, 4th Floor, Suite 410
Florham Park, New Jersey 07932
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F ☐
On June 12, 2024, BeyondSpring Inc. (the “Company”) entered into a Securities Purchase Agreement (the “Purchase Agreement”) with Dr. Quanqi Song (the “Investor”), pursuant to which the Company issued
and sold, in a registered offering, an aggregate of 1,271,187 shares of the Company’s ordinary shares, par value $0.0001 per share (the “Shares”), at a purchase price of $2.36 per share.
The gross proceeds from the offering were approximately $3 million, before deducting expenses.
Under the terms of the Purchase Agreement, the Shares were offered pursuant to a registration statement on Form F-3 (File No. 333-257639), which was filed with the Securities and Exchange Commission
on July 2, 2021 and was declared effective on July 13, 2021.
Under the terms of the Purchase Agreement, the Investor agreed to a customary lock-up period for sixty (60) days from the date of closing, during which time the Investor agreed not to sell the
Shares, enter into any derivative transactions with respect to the Shares or publicly disclose the intention to do any of the foregoing, in each case without the Company’s prior written consent, subject to certain exceptions.
The foregoing description of the Purchase Agreement is not complete and is qualified in its entirety by reference to the full text of the Purchase Agreement, a copy of which is filed herewith as
Exhibit 10.1 to this Report on Form 6-K and is incorporated herein by reference.
This Report on Form 6-K is incorporated by reference into the Registration Statement on Form F-3, File No. 333-257639, and the Registration Statements on Form S-8, File No. 333-216639 and File No.
333-240082, of the Company.
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Exhibit No.
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Description
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Opinion of Maples and Calder (Hong Kong) LLP, Cayman counsel to the Registrant, as to the validity of the ordinary shares being registered (including consent)
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Securities Purchase Agreement dated as of June 12, 2024, between BeyondSpring Inc. and Dr. Quanqi Song
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Consent of Maples and Calder (Hong Kong) LLP (included in the opinion filed as Exhibit 5.1)
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
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BeyondSpring Inc.
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By:
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/s/ Lan Huang
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Name:
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Lan Huang
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Title:
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Chairperson and Chief Executive Officer
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Date: June 12, 2024
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Exhibit 5.1
Our ref VSL/715660-000001/29609673v2
BeyondSpring Inc.
100 Campus Drive, West Side
4th Floor, Suite 410
Florham Park, New Jersey 07932
12 June 2024 Dear Sirs,
BeyondSpring Inc.
We have acted as Cayman Islands legal advisers to BeyondSpring Inc. (the “Company”) in connection with the Company’s registration statement on Form F-3, including all amendments or supplements thereto, filed with the
Securities and Exchange Commission (the “SEC”) under the
U.S. Securities Act of 1933 on 2 July 2021, as amended to date (the “Registration Statement”) relating to the offering by the Company of certain ordinary shares of par value US$0.0001 each (the “Shares”) and the prospectus supplement to the Registration Statement dated 12 June 2024 (the “Prospectus
Supplement”), relating to the sale of 1,271,187 Shares (the “Sale Shares”) by the Company in accordance with the Securities Purchase
Agreement dated 12 June 2024 entered into between the Company and the investors named therein (the “Securities Purchase Agreement”).
We are furnishing this opinion as Exhibits 5.1 and 23.1 to the Registration Statement.
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1
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Documents Reviewed
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For the purposes of this opinion, we have reviewed only originals, copies or final drafts of the
following documents:
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1.1
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The certificate of incorporation of the Company dated 21 November 2014.
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1.2
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The amended and restated memorandum and articles of association of the Company as conditionally adopted by a special
resolution passed on 24 February 2017 and effective immediately prior to the completion of the Company’s initial public offering of the Shares (the “Memorandum and Articles”).
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1.3
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The written resolutions of the board of directors of the Company (the “Board”) dated 29 May 2024 and 12 June 2024 (the “Resolutions”).
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1.4
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A certificate from a director of the Company, a copy of which is attached hereto (the “Director’s Certificate”).
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1.5
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A certificate of good standing dated 21 May 2024, issued by the Registrar of Companies in the Cayman Islands (the “Certificate of Good Standing”).
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1.6
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The Registration Statement.
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1.7
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The Prospectus Supplement.
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1.8
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The Securities Purchase Agreement.
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2
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Assumptions
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The following opinions are given only as to, and based on, circumstances and matters of fact
existing and known to us on the date of this opinion letter. These opinions only relate to the laws of the Cayman Islands which are in force on the date of this opinion letter. In giving these opinions we have relied (without further verification)
upon the completeness and accuracy of the Director’s Certificate and the Certificate of Good Standing. We have also relied upon the following assumptions, which we have not independently verified:
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2.1
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Copies of documents, conformed copies or drafts of documents provided to us are true and complete copies of, or in the final forms of, the
originals, and translations of documents provided to us are complete and accurate.
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2.2
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All signatures, initials and seals are genuine.
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2.3
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There is nothing under any law (other than the law of the Cayman Islands), and there is nothing contained in the minute book
or corporate records of the Company (which we have not inspected), which would or might affect the opinions set out below.
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2.4
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The Securities Purchase Agreement has been or will be authorised and duly executed and unconditionally delivered by or on
behalf of all relevant parties in accordance with all relevant laws (other than, with respect to the Company, the laws of the Cayman Islands).
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2.5
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The Securities Purchase Agreement is, or will be, legal, valid, binding and enforceable against all relevant parties in
accordance with their terms under the laws of the State of New York and all other relevant laws (other than, with respect to the Company, the laws of the Cayman Islands).
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2.6
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The choice of the laws of the State of New York as the governing law of the Securities Purchase Agreement has been made in good
faith and would be regarded as a valid and binding selection which will be upheld by the state and federal courts sitting in the City of New York, Borough of Manhattan and any other relevant jurisdiction (other than the Cayman Islands) as a
matter of the laws of the State of New York and all other relevant laws (other than the laws of the Cayman Islands).
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2.7
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The Company has, or will have, sufficient authorized but unissued Shares in its authorized share capital to enable the Company
to issue the Sale Shares.
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2.8
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The Company will receive money or money’s worth in consideration for the issue of the Sale Shares, and none of such Sale Shares
will be issued for less than their par value.
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2.9
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The capacity, power, authority and legal right of all parties under all relevant laws and regulations (other than, with respect to the Company,
the laws and regulations of the
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Cayman Islands) to enter into, execute, unconditionally deliver and perform their respective obligations under the Securities Purchase
Agreement.
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2.10
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There is no contractual or other prohibition or restriction (other than as arising under Cayman Islands
law) binding on the Company prohibiting or restricting it from entering into and performing its obligations under the Securities Purchase Agreement.
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2.11
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No monies paid to or for the account of any party under the Securities Purchase Agreement or any property
received or disposed of by any party to the Securities Purchase Agreement in each case in connection with the Securities Purchase Agreement or the consummation of the transactions contemplated thereby represent or will represent proceeds of
criminal conduct or criminal property or terrorist property (as defined in the Proceeds of Crime Act (As Revised) and the Terrorism Act (As Revised), respectively).
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2.12
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The issue of the Sale Shares under the Securities Purchase Agreement will be of commercial benefit to the Company.
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2.13
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No invitation has been or will be made by or on behalf of the Company to the public in the Cayman
Islands to subscribe for any of the Sale Shares.
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3
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Opinion
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Based upon the foregoing and subject to the qualifications set out below and having regard to such legal considerations
as we deem relevant, we are of the opinion that:
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3.1
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The Company has been duly incorporated as an exempted company with limited liability and is validly existing and in good
standing under the laws of the Cayman Islands.
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3.2
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The authorised share capital of the Company is US$50,000 divided into 500,000,000 ordinary shares of a par value of
US$0.0001 each.
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3.3
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The issue and allotment of the Sale Shares have been duly authorised and when allotted, issued and paid for as contemplated in
the Registration Statement and the Securities Purchase Agreement, such Shares will be legally issued and allotted, fully paid and non- assessable. As a matter of Cayman law, a share is only issued when it has been entered in the register of
members (shareholders).
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4
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Qualifications
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The opinions expressed above are subject to the following qualifications:
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4.1
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To maintain the Company in good standing under the laws of the Cayman Islands, annual filing fees must be paid and returns
made to the Registrar of Companies within the time frame prescribed by law.
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4.2
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The obligations assumed by the Company under the Securities Purchase Agreement will not necessarily be enforceable in all
circumstances in accordance with their terms. In particular:
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(a)
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enforcement may be limited by bankruptcy, insolvency, liquidation, reorganisation, readjustment of debts or moratorium or other laws of general
application relating to, protecting or affecting the rights of creditors;
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(b)
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enforcement may be limited by general principles of equity. For example, equitable remedies such as specific performance may
not be available, inter alia, where damages are considered to be an adequate remedy;
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(c)
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some claims may become barred under relevant statutes of limitation or may be or become subject to defences of set off,
counterclaim, estoppel and similar defences;
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(d)
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where obligations are to be performed in a jurisdiction outside the Cayman Islands, they may not be enforceable in the Cayman
Islands to the extent that performance would be illegal under the laws of that jurisdiction;
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(e)
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the courts of the Cayman Islands have jurisdiction to give judgment in the currency of the relevant obligation and statutory
rates of interest payable upon judgments will vary according to the currency of the judgment. If the Company becomes insolvent and is made subject to a liquidation proceeding, the courts of the Cayman Islands will require all debts to be
proved in a common currency, which is likely to be the “functional currency” of the Company determined in accordance with applicable accounting principles. Currency indemnity provisions have not been tested, so far as we are aware, in the
courts of the Cayman Islands;
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(f)
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arrangements that constitute penalties will not be enforceable;
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(g)
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enforcement may be prevented by reason of fraud, coercion, duress, undue influence, misrepresentation, public policy or
mistake or limited by the doctrine of frustration of contracts;
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(h)
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provisions imposing confidentiality obligations may be overridden by compulsion of applicable law or the requirements of legal
and/or regulatory process;
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(i)
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the courts of the Cayman Islands may decline to exercise jurisdiction in relation to substantive proceedings brought under or
in relation to the Securities Purchase Agreement in matters where they determine that such proceedings may be tried in a more appropriate forum;
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(j)
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we reserve our opinion as to the enforceability of the relevant provisions of the Securities Purchase Agreement to the extent that they purport
to grant exclusive jurisdiction as there may be circumstances in which the courts of the Cayman Islands would accept jurisdiction notwithstanding such provisions;
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(k)
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a company cannot, by agreement or in its articles of association, restrict the exercise of a statutory power and there is
doubt as to the enforceability of any provision in the Securities Purchase Agreement whereby the Company covenants to restrict the exercise of powers specifically given to it under the Companies Act, including, without limitation, the power
to increase its authorised share capital, amend its memorandum and articles of association or present a petition to a Cayman Islands court for an order to wind up the Company.
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4.3
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Applicable court fees will be payable in respect of the enforcement of the Securities Purchase Agreement.
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4.4
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We express no opinion as to the meaning, validity or effect of any references to foreign (i.e. non-Cayman Islands) statutes,
rules, regulations, codes, judicial authority or any other promulgations and any references to them in the Securities Purchase Agreement.
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4.5
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In this opinion the phrase “non-assessable” means, with respect to shares in the Company, that a shareholder shall not,
solely by virtue of its status as a shareholder and in absence of a contractual arrangement, or an obligation pursuant to the memorandum and articles of association, to the contrary, be liable for additional assessments or calls on the
shares by the Company or its creditors (except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship or an illegal or improper purpose or other circumstances in which a court may be prepared to
pierce or lift the corporate veil).
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Except as specifically stated herein, we make no comment with respect to any representations
and warranties which may be made by or with respect to the Company in any of the documents or instruments cited in this opinion or otherwise with respect to the commercial terms of the transactions the subject of this opinion.
We hereby consent to the filing of this opinion as an exhibit to the Form 6-K incorporated by
reference into the Registration Statement and to the reference to our name under the headings “Enforceability of Civil Liabilities” and “Legal Matters” and elsewhere in the prospectus included in the Registration Statement and the Prospectus
Supplement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933, as amended, or the Rules and Regulations of the Commission
thereunder.
Yours faithfully
/s/ Maples and Calder (Hong Kong) LLP
Maples and Calder (Hong Kong) LLP
Encl
Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (as may be amended, modified, or supplemented from time to time, this “Agreement”)
is made and entered into as of June 12, 2024, by and between BeyondSpring Inc., an exempt company with limited liability organized under the laws of the Cayman Islands (the “Company”) and Quanqi Song (the “Purchaser”).
WHEREAS, the Company has prepared and filed with the Securities and Exchange Commission (the “SEC”), in accordance with the
provisions of the Securities Act of 1933, as amended (the “Securities Act”), and the applicable rules and regulations thereunder, a registration statement on Form F-3 (File No. 333-257639), including a prospectus, relating to the shares to be
issued and sold pursuant to this Agreement. The term “Registration Statement” as used herein refers to such registration statement (including all financial schedules and exhibits), as amended or as supplemented and includes information
contained or incorporated by reference in the prospectus filed with the Registration Statement (the “Prospectus”) and any supplement thereto (a “Prospectus Supplement”), in each case, filed with the SEC pursuant to Rule 424(b) of the
rules under the Securities Act and deemed to be part thereof at the time of effectiveness (the “Effective Date”) pursuant to Rule 430B of the rules under the Securities Act.
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements set forth
herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to the terms and conditions herein contained, the parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE
PURCHASE AND SALE
1.1 Closing. The Purchaser agrees to purchase from the Company, and the Company agrees to
issue and sell to the Purchaser, 1,271,187 shares (the “Shares”) of the Company’s ordinary shares, par value $0.0001 per share (the “Ordinary Shares”), at a purchase price of $2.36 per share, for an aggregate purchase price of
$3,000,001.32 (the “Purchase Price”). Upon satisfaction of the conditions set forth in Section 1.2, the closing of the purchase and sale of the Shares (the “Closing Date”) shall occur at the offices of Skadden, Arps, Slate, Meagher
& Flom LLP on June 12, 2024, or at such other place or on such other date as the parties shall mutually agree. Unless otherwise agreed upon by the Company and the Purchaser, settlement of the Shares shall occur via “Delivery Free of Payment”
(i.e., the Purchaser shall make payment for the Shares purchased by it by wire transfer to the Company on the Closing Date, upon confirmation of receipt of the wire, the Company shall issue the Shares registered in the Purchaser’s name and address,
which shall be released by the Transfer Agent (as defined herein) directly to the account of the Purchaser).
1.2 Closing Conditions.
(a) As a condition to the Purchaser’s obligation to consummate the transactions contemplated hereby, at the Closing, the Company shall
have satisfied or the Purchaser shall waive each of the conditions set forth below or shall deliver or cause to be delivered to the Purchaser the items set forth below, as appropriate:
(i) a copy of this Agreement duly executed by the Company;
(ii) (a) a copy of the irrevocable instructions to Continental Stock Transfer & Trust (the
“Transfer Agent”) instructing the Transfer Agent to deliver the Shares, registered in the name of the Purchaser and (b) Company has released the Shares for delivery to the Purchaser;
(iii) the representations and warranties made by the Company herein shall be true and correct
in all material respects on the date hereof and on the date of the Closing;
(iv) all covenants, agreements and conditions contained in this Agreement to be performed by
the Company on or prior to the date of the Closing shall have been performed or complied with in all material respects; and
(v) no statute, regulation, executive order, decree, ruling or injunction shall have been
enacted, promulgated, endorsed or threatened or is pending by or before any governmental authority of competent jurisdiction which prohibits or threatens to prohibit the consummation of the transaction contemplated by this Agreement.
(vi) a copy of the filed notification form listing the Shares on the Nasdaq Stock Market.
(vii) the Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule
172 under the Securities Act).
(viii) there shall have been no Material Adverse Effect (as defined below) with respect to the
Company since the date hereof.
(ix) from the date hereof to the Closing Date, trading in the Ordinary Shares shall not have
been suspended by the SEC or the NASDAQ Stock Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been
established on securities whose trades are reported by such service, or on any trading market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material
outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, makes it impracticable or inadvisable to purchase the
Shares at the Closing.
(b) As a condition to the Company’s obligation to consummate the transactions contemplated hereby, at the Closing,
the Purchaser shall have satisfied each of the conditions set forth below or shall deliver or cause to be delivered to the Company the items set forth below, as appropriate:
(i) a copy of this Agreement duly executed by the Purchaser;
(ii) the Purchase Price is paid by wire transfer of immediately available funds to the account
of the Company set forth below:
Bank: China Merchants Bank, New York Branch
Swift Code: CMBCUS33
Beneficiary Name: BeyondSpring Inc.
Beneficiary Account Number: 1016130015
Fedwire ABA: 026014559
(iii) the representations and warranties made by the Purchaser herein shall be true and correct
in all material respects on the date hereof and on the date of the Closing;
(iv) the Purchaser shall have performed, satisfied and complied in all material respects with
all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Purchaser at or before the Closing; and
(v) no statute, regulation, executive order, decree, ruling or injunction shall have been
enacted, promulgated, endorsed or threatened or is pending by or before any governmental authority of competent jurisdiction which prohibits or threatens to prohibit the consummation of the transaction contemplated by this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Company. Except as set forth in
the Company’s filings under the Securities Exchange Act of 1934, as amended, the Company hereby makes the following representations and warranties as of the date hereof and as of the date of the Closing to the Purchaser:
(a) The Company has the requisite corporate power and authority and legal capacity to enter into, and to carry out
its obligations under, this Agreement. The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly authorized by all necessary corporate action
on the part of the Company.
(b) This Agreement has been duly executed and delivered by the Company and constitutes a valid and binding
obligation of the Company, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar law of general application affecting rights of creditors and general principles
of equity.
(c) Assuming the accuracy of the representations made by the Purchaser in Section 2.2 of this Agreement, no consent,
approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of the Company in connection with the consummation of the
transactions contemplated by this Agreement, except for any filings which have been made or will be made in a timely manner.
(d) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated
thereby will not result in any violation of or be in conflict with or constitute, with or without the passage of time and giving of notice, either (i) a default under the provisions of its organizational documents, or any instrument, judgment, order,
writ, decree, contract or agreement of the Company or (ii) an event which results in the creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, forfeiture, or nonrenewal of any material permit or
license applicable to the Company; except in each case as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the condition (financial or otherwise), results of operations, shareholders’ equity,
properties, business or prospects of the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”).
(e) The Registration Statement relating to the Shares has (i) been prepared by the Company in conformity with the
requirements of the Securities Act, and the rules and regulations of the SEC thereunder; (ii) been filed with the SEC under the Securities Act; (iii) become effective under the Securities Act and (iv) no stop order preventing or suspending the
effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus or Prospectus Supplement has been issued by the SEC and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are
threatened by the SEC.
(f) The Registration Statement conformed and will conform in all material respects on the Effective Date and on the
Closing Date to the requirements of the Securities Act and the rules and regulations thereunder. The Prospectus conformed, and the Prospectus Supplement will conform, in all material respects when filed with the SEC pursuant to Rule 424(b) under the
Securities Act and on the Closing Date to the requirements of the Securities Act and the rules and regulations thereunder. The documents incorporated by reference in the Registration Statement conformed in all material respects to the requirements of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or the Securities Act, as applicable, and the rules and regulations thereunder.
(g) The Registration Statement did not, as of the Effective Date, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The documents incorporated by reference in the Registration Statement did not, and any further documents filed and incorporated by
reference therein will not, as of the respective filing dates of each document, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(h) The Prospectus does not, and the Prospectus Supplement will not, in each case, as of its date or as of the
Closing Date, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(i) The Company and each of its subsidiaries have been duly organized, are validly existing and in good standing
(where such concept is applicable) as a corporation or other business entity under the laws of its jurisdiction of organization and is duly qualified to do business and in good standing (where such concept is applicable) as a foreign corporation or
other business entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, except where the failure to be so qualified or in good standing could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries have all power and authority necessary to own or hold their properties and to conduct the businesses in which they are engaged.
(j) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly authorized and, upon
payment and delivery in accordance with this Agreement, will be validly issued, fully paid and non-assessable, will conform in all material respects to the description thereof contained in the Prospectus and the Prospectus Supplement, will be issued
in compliance with U.S. federal and state securities laws, and will be free of statutory and contractual preemptive rights, rights of first refusal and any other similar rights of any share holder.
(k) Marcum LLP and Ernst & Young Hua Ming LLP, who have certified certain financial statements of the Company
and its consolidated subsidiaries, whose report appears in the Prospectus and the Prospectus Supplement or is incorporated by reference therein, are independent public accountants as required by the Securities Act and the rules and regulations
thereunder.
(l) Neither the Company nor any of its subsidiaries is, and as of the Closing Date and after giving effect to the
offer and sale of the Shares and the application of the proceeds therefrom as described under “Use of Proceeds” in the Prospectus and the Prospectus Supplement, none of them will be, (i) an “investment company” or a company “controlled” by an
“investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the SEC thereunder, or (ii) a “business development company” (as defined in Section
2(a)(48) of the Investment Company Act).
(m) No brokerage or finder’s fees or commissions are or will be payable by the Company or any of its subsidiaries
to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other person with respect to the transactions hereby. To the knowledge of the Company, the Purchaser shall have no obligation with respect to any fees
or with respect to any claims made by or on behalf of other persons for fees of a type contemplated in this section that may be due in connection with the transactions contemplated hereby.
2.2 Representations and Warranties of the Purchaser. The Purchaser hereby
represents and warrants as of the date hereof and as of the date of the Closing to the Company as follows:
(a) The Purchaser is an entity duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with full right, corporate, limited liability or partnership power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder.
The execution, delivery and performance by the Purchaser of this Agreement and the consummation by the Purchaser of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Purchaser.
(b) This Agreement has been duly executed and delivered by the Purchaser and constitutes a valid and binding
obligation of the Purchaser, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar law of general application affecting rights of creditors and general
principles of equity.
(c) The Purchaser and its advisors, if any, have been furnished with all publicly available materials relating to
the business, finances and operations of the Company and such other publicly available materials relating to the offer and sale of the Shares as have been requested by the Purchaser. The Purchaser and its advisors, if any, have been afforded the
opportunity to ask questions of the Company. The Purchaser understands that its investment in the Shares involves a high degree of risk. The Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed
investment decision with respect to its acquisition of the Shares. Other than to the Purchaser’s representatives, including, without limitation, its officers, directors, partners, legal and other advisors, employees, agents and affiliates, the
Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction).
(d) The Purchaser understands that no United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Shares or the fairness or suitability of the investment in the Shares, nor have such authorities passed upon or endorsed the merits of the offering of the Shares.
(e) From and after the date the Purchaser received any information about the sale of Shares to be sold pursuant to
this Agreement, the Purchaser has not offered, pledged, sold, contracted to sell, sold any option or contract to purchase, purchased any option or contract to sell, granted any option, right or warrant to purchase, loaned, or otherwise transferred or
disposed of, directly or indirectly, any Ordinary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares, entered into any swap or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Ordinary Shares, or directly or indirectly, through related parties, affiliates or otherwise sold “short” or “short against the box” (as those terms are generally understood) any equity security of the
Company. The Purchaser covenants that it will not, nor will it authorize or permit any person acting on its behalf to, engage in any such transactions until the expiration of the Lock-Up Period (as defined below).
ARTICLE III
MISCELLANEOUS
3.1 Lock-Up. For a period commencing on the date hereof and ending on the sixtieth (60th) day after the date hereof (the “Lock-Up Period”), the Purchaser agrees not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any
transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Shares or securities convertible into or exercisable or exchangeable for Shares or sell or grant options,
rights or warrants with respect to any Shares or securities convertible into or exchangeable for Shares, (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of
ownership of such Shares, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Shares or other securities, in cash or otherwise, or (C) publicly disclose the intention to do any of the foregoing, in each
case without the prior written consent of the Company.
3.2 Fees and Expenses. Each party shall pay the fees and expenses of its advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement.
3.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto relating to the
subject matter hereof and supersedes all prior contracts, agreements, discussions and understandings between them. No course of prior dealings between the parties shall be relevant to supplement or explain any term used in this Agreement.
3.4 Notices. Any and all notices or other communications or deliveries required or permitted to be provided
hereunder shall be in writing and shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered via e-mail prior to 6:30 p.m. (New York City time) on a Trading Day, (b) the next
Trading Day after the date of transmission, if such notice or communication is delivered via e-mail on a day that is not a Trading Day or later than 6:30 p.m. (New York City time) on any Trading Day, (c) the Trading Day following the date of mailing,
if sent by U.S. nationally recognized overnight courier service, or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications is set forth on the Company and the Purchaser
signature pages attached hereto, as applicable. For purposes of this Agreement, “Trading Day” shall mean a day on which the Company’s Ordinary Shares are traded on the Nasdaq Stock Market, or, if the Company’s Ordinary Shares are not eligible for
trading on the Nasdaq Stock Market, any day except Saturday, Sunday and any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
3.5 Amendments and Waivers. No provision of this Agreement may be amended, terminated or waived except by a
written instrument referring specifically to this Agreement and signed by all parties hereto or their authorized representatives. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be
a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the
exercise of any such right.
3.6 Construction. The headings herein are for convenience only, do not constitute a part of this Agreement and
shall not be deemed to limit or affect any of the provisions hereof. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied
against any party.
3.7 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. Neither Company nor the Purchaser may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party.
3.8 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this
Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York without regard to conflict of laws principles.
3.9 Survival. The representations, warranties, agreements and covenants contained herein shall survive the
Closing and delivery of the Shares.
3.10 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together
shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. Facsimile or other
electronically scanned and delivered signatures (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g.,
www.docusign.com), including by e-mail attachment, shall be deemed to have been duly and validly delivered and be valid and effective for all purposes of this Agreement.
3.11 Severability. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the
validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute
therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.
3.12 Termination. This Agreement may be terminated by either party by written notice to the other party, if the Closing has not been consummated on or before
June 21, 2024.
3.13 Waiver of Jury Trial. The Company and the Purchaser hereby irrevocably waive, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
3.14 Submission to Jurisdiction, Etc. The Company hereby submits to the non-exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan, The
City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any lawsuit, action or
other proceeding in such courts, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such lawsuit, action or other proceeding brought in any such court has been brought in an
inconvenient forum.
* * * * *
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the parties hereto on the date first above written.
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BeyondSpring Inc. | |
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By: |
/s/ Lan Huang |
| Name: |
Lan Huang | |
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Title: |
CEO |
Address for Notice:
BeyondSpring Inc.
100 Campus Drive, West Side, 4th Floor, Suite 410
Florham Park, New Jersey 07932
Tel: +1 (646) 305-6387
Attention: Lan Huang, CEO
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the parties hereto on the date first above written.
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By: |
/s/ Quanqi Song |
| Name: |
Quanqi Song |
Address for Notice:
Flat A,59/F, Tower 1, Grand Promenade
38 Tai Hong St, Hong Kong, China
Email: Songquanqi@126.com
[Signature Page to Securities Purchase Agreement]