As filed with the Securities and Exchange Commission on July 2, 2024
Registration No. 333-280153
Cayman Islands | | | Not Applicable |
(State or other jurisdiction of incorporation or organization) | | | (IRS Employer Identification No.) |
| | Emerging growth company ☐ |
• | the initiation, timing, progress and results of our studies in animals and clinical trials, and our research and development programs; |
• | our ability to advance our product candidates into, and successfully complete, clinical trials; |
• | our reliance on the success of our clinical-stage product candidates; |
• | the timing or likelihood of regulatory filings and approvals; |
• | our ability to address the concerns identified in the Complete Response Letter issued by the Food and Drug Administration, in November 2021 regarding the New Drug Application (“NDA”), seeking approval of Plinabulin in combination with granulocyte colony-stimulating factor for the prevention of CIN; |
• | our ability to re-file the NDA submission for the CIN indication with the National Medical Products Administration in China; |
• | the commercialization of our product candidates, if approved; |
• | our ability to develop sales and marketing capabilities; |
• | the pricing and reimbursement of our product candidates, if approved; |
• | the implementation of our business model, strategic plans for our business and technology; |
• | the scope of protection we are able to establish and maintain for intellectual property rights covering our product candidates and technology; |
• | our ability to operate our business without infringing the intellectual property rights and proprietary technology of third parties; |
• | costs associated with defending intellectual property infringement, product liability and other claims; |
• | regulatory development in the United States, China and other jurisdictions; |
• | estimates of our expenses, future revenues, capital requirements and our needs for additional financing; |
• | the potential benefits of strategic collaboration agreements and our ability to enter into strategic arrangements; |
• | our ability to maintain and establish collaborations or obtain additional grant funding; |
• | the rate and degree of market acceptance of our product candidates; |
• | developments relating to our competitors and our industry, including competing therapies; |
• | our ability to effectively manage our anticipated growth; |
• | our ability to attract and retain qualified employees and key personnel; |
• | our future revenue, hiring plans, expenses, capital expenditures, capital requirements and share performance; |
• | the future trading price of our ordinary shares and impact of securities analysts’ reports on these prices; |
• | our ability to meet Nasdaq’s continued listing requirements; |
• | the impact of widespread health developments, and the responses thereto, which could materially and adversely affect, among other things, enrollment of patients in our clinical trials, timing and completion of regulatory or other required inspections, our expected timeline for data readouts of our clinical trials and certain regulatory filings for our product candidates, and the review and approval timeline of regulatory authorities; |
• | our ability to continue as a going concern; and |
• | other risks and uncertainties, including those listed under the caption “Risk Factors” in this prospectus, any accompanying prospectus supplement, and in our most recent annual report on Form 20-F. |
• | the instrument of transfer is lodged with us, accompanied by the certificate for the ordinary shares to which it relates and such other evidence as our board of directors may reasonably require to show the right of the transferor to make the transfer; |
• | the instrument of transfer is in respect of only one class of shares; |
• | the instrument of transfer is properly stamped, if required; |
• | in the case of a transfer to joint holders, the number of joint holders to whom the ordinary share is to be transferred does not exceed four; and |
• | a fee of such maximum sum as the Nasdaq Capital Market may determine to be payable or such lesser sum as our directors may from time to time require is paid to us in respect thereof. |
(a) | is or is likely to become unable to pay its debts; and |
(b) | intends to present a compromise or arrangement to its creditors (or classes thereof) either pursuant to the Companies Act, the law of a foreign country or by way of a consensual restructuring. |
• | the designation of the series; |
• | the number of shares of the series; |
• | the dividend rights, dividend rates, conversion rights, voting rights; and |
• | the rights and terms of redemption and liquidation preferences. |
• | does not have to file an annual return of its shareholders with the Registrar of Companies; |
• | is not required to open its register of members for inspection; |
• | does not have to hold an annual general meeting; |
• | may issue shares with no par value; |
• | may obtain an undertaking against the imposition of any future taxation (such undertakings are usually given for a period of up to 30 years); |
• | may register by way of continuation in another jurisdiction and be deregistered in the Cayman Islands; |
• | may register as a limited duration company; and |
• | may register as a segregated portfolio company. |
• | the names and addresses of the members, together with a statement of the shares held by each member, and such statement shall confirm (i) the amount paid or agreed to be considered as paid, on the shares of each member (ii) the number and category of shares held by each member, and (iii) whether each relevant category of shares held by a member carries voting rights under the articles of association of the company, and if so, whether such voting rights are conditional; |
• | the date on which the name of any person was entered on the register as a member; and |
• | the date on which any person ceased to be a member. |
• | the statutory provisions as to the required majority vote have been met; |
• | the shareholders have been fairly represented at the meeting in question and the statutory majority are acting bona fide without coercion of the minority to promote interests adverse to those of the class; |
• | the arrangement is such that may be reasonably approved by an intelligent and honest man of that class acting in respect of his interest; and |
• | the arrangement is not one that would more properly be sanctioned under some other provision of the Companies Act. |
• | an act which is ultra vires the company or illegal and is therefore incapable of ratification by the shareholders, |
• | an act which constitutes a fraud against the minority where the wrongdoers are themselves in control of the company, or |
• | an act which requires a resolution with a qualified (or special) majority (i.e. more than a simple majority) which has not been obtained. |
• | through underwriters; |
• | through agents; |
• | to dealers; |
• | directly to one or more purchasers; |
• | in “at the market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market on an exchange or otherwise; |
• | in block trades; |
• | through a combination of any of the above; and |
• | any other method permitted pursuant to applicable law. |
• | at market prices prevailing at the time of sale; |
• | at varying prices determined at the time of sale; or |
• | at negotiated or fixed prices. |
• | our annual report on Form 20-F for the fiscal year ended December 31, 2023, filed with the SEC on April 29, 2024; |
• | our reports on Form 6-K furnished with the SEC on January 10, 2024, January 16, 2024, February 2, 2024, February 26, 2024 and March 18, 2024 (other than the portions of those reports not deemed to be filed); |
• | the description of share capital contained in the Registration Statement on Form 8-A, as filed with the SEC on March 6, 2017 (File No. 001-38024), and including any amendments or reports filed for the purpose of updating such description; and |
• | with respect to each offering of ordinary shares under this prospectus, each subsequent annual report on Form 20-F and each report of foreign private issuer on Form 6-K that indicates that it is being incorporated by reference, in each case, that we file with or furnish to the SEC on or after the date on which this registration statement is first filed with the SEC and until the termination or completion of that offering under this prospectus. |
Item 8. | Indemnification of Directors, Officers and Employees |
Item 9. | Exhibits |
Item 10. | Undertakings |
(a) | The undersigned registrant hereby undertakes: |
(i) | To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
(1) | to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
(2) | to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or any decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
(3) | to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; |
(ii) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(iii) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(iv) | To file a post-effective amendment to the Registration Statement to include any financial statements required by Item 8.A of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act of 1933 need not be furnished, provided, that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act of 1933 or Item 8.A of Form 20–F if such financial statements and information are contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Form F-3. |
(v) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(1) | each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the Registration Statement as of the date the filed prospectus was deemed part of and included in the Registration Statement; and |
(2) | each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(vi) | That, for the purpose of determining liability of the undersigned registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities of the undersigned registrant, the undersigned registrant undertakes that in a primary offering of its securities pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(1) | any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(2) | any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(3) | the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(4) | any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. |
Exhibit No. | Description |
Exhibit No. | | | Description |
1.1* | | | Form of Underwriting Agreement |
| | Amended and Restated Memorandum and Articles of Association of the Company | |
| | Registrant’s Specimen Certificate for Ordinary Shares | |
| | 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) | |
| | Consent of Maples and Calder (Hong Kong) LLP (included in the opinion filed as Exhibit 5.1) | |
| | Consent of Marcum LLP | |
| | Consent of Ernst & Young Hua Ming LLP | |
| | Powers of Attorney | |
| | Filing Fee Table |
* | To be filed as an exhibit to a post-effective amendment to this Registration Statement or as an exhibit to a report of foreign private issuer on Form 6-K to be filed under the Exchange Act and incorporated herein by reference. |
** | Previously filed with the Registration Statement on Form F-1 (File No. 333-214610), as amended, initially filed on November 15, 2016, and incorporated herein by reference. |
*** | Previously filed with this Registration Statement on Form F-3. |
† | Filed herewith. |
| | BeyondSpring Inc. | |||||||
| | | | | | ||||
| | By: | | | /s/ Lan Huang | ||||
| | | | Name: | | | Lan Huang | ||
| | | | Title: | | | Chairman of the Board of Directors and Chief Executive Officer (Principal Executive, Financial and Accounting Officer) |
Signature and Name | | | Title | | | Date |
/s/ Lan Huang | | | Chairman of the Board of Directors and Chief Executive Officer (Principal Executive, Financial and Accounting Officer) | | | July 2, 2024 |
Lan Huang | | |||||
| | | | |||
/s/ * | | | Chief Scientific Officer | | | July 2, 2024 |
Yangjuan Lu | | |||||
| | | | |||
/s/ * | | | Director | | | July 2, 2024 |
Patrick Fabbio | | |||||
| | | | |||
/s/ * | | | Director | | | July 2, 2024 |
Matthew Kirkby | | |||||
| | | | |||
/s/ * | | | Director | | | July 2, 2024 |
Jiangwen Majeti | | |||||
| | | | |||
/s/ * | | | Director | | | July 2, 2024 |
Sihai Xu | |
* By: | | | /s/ Lan Huang | | | |
| | Attorney-in-fact | | |