The PD-1 License Agreement contains customary representations, warranties and covenants by the Company and Celgene. Unless earlier terminated, the agreement will expire on a licensed product-by-product and country-by-country basis upon the expiration of the royalty term in such country for such licensed product. The agreement may be terminated by Celgene upon 30 days’ prior written notice, or by either party upon the other party’s bankruptcy or uncured material breach.

The PD-1 License Agreement is subject to the closing of the other transactions described in this Current Report on Form8-K, and the expiration or termination of applicable waiting periods under all applicable antitrust laws.

Share Subscription Agreement

In connection with the PD-1 License Agreement, on July5, 2017, the Company also entered into a Share Subscription Agreement (the “Share Subscription Agreement”) with Celgene Switzerland to which the Company will issue and sell to Celgene Switzerland $150 million worth of the Company’s ordinary shares, par value $0.0001 per share, consisting of 32,746,416 ordinary shares, or approximately 5.9% of the Company’s outstanding shares as of the date of the agreement, at a price per share equal to $4.58, or $59.55 per American Depositary Share (“ADS”), which represents a 35% premium over the 11-day volume weighted average price of the Company’s ADSs on The NASDAQ Global Select Market during the period from June16, 2017 through June30, 2017.

to the Share Subscription Agreement, Celgene has agreed to a lock-up for one year, a standstill, and a voting agreement for the duration of the standstill period, all under specified circumstances and as set forth in the agreement. Celgene will also have specified registration rights in the event the purchased shares are not eligible for sale under Rule144 upon expiration of the lock-up.

The Share Subscription Agreement contains customary representations and warranties and may be terminated at any time prior to closing by (i)mutual written consent of the parties; (ii)upon written notice by either party before December31, 2017 if the closing has not been consummated by that date; (iii)either party if certain closing conditions are not met; or (iv)by either party upon the other party’s uncured material breach of the Share Subscription Agreement.

The closing of the share purchase is subject to the effectiveness of the PD-1 License Agreement, customary closing conditions, and the expiration or termination of applicable waiting periods under all applicable antitrust laws.

The offer and sale of the shares to be issued to the Share Subscription Agreement will be made in a private placement in reliance upon the exemption from registration provided by Section4(a)(2)of the Securities Act of 1933, as amended (the “Securities Act”), for transactions by an issuer not involving a public offering, and/or Regulation D under the Securities Act. All certificates evidencing the shares will bear a standard restrictive legend under the Securities Act.

The foregoing summary description of the Share Subscription Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Share Subscription Agreement, a copy of which is filed as Exhibit10.1 to this Current Report on Form8-K, and which is incorporated herein by reference.

Celgene China Agreements

On July 5, 2017, the Company and a wholly-owned subsidiary of Celgene, Celgene Logistics Sàrl (“Celgene Logistics”), entered into a License and Supply Agreement (the “China License Agreement”), to which the Company will be granted the right to exclusively distribute and promote the Celgene Products in China, excluding Hong Kong, Macau and Taiwan (the “Commercial Territory”). In addition, if Celgene decides to commercialize a new oncology product through a third party in the Commercial Territory during the first five years of the term, the Company has a right of first negotiation to obtain the right to commercialize the product, subject to certain conditions.

The term of the China License Agreement is 10 years and may be terminated by either party upon written notice in the event of uncured material breach or bankruptcy of the other party, or if the underlying regulatory approvals for

the covered products are revoked. Celgene Logistics also has the right to terminate the agreement with respect to REVLIMID® at any time upon written notice to the Company.

The China License Agreement contains customary representations and warranties and confidentiality and mutual indemnification provisions, and is subject to the closing of the acquisition transaction described below.

On July 5, 2017, a wholly owned subsidiary of the Company, BeiGene (Hong Kong) Co.,Ltd., acquired 50% of the equity interests of Celgene Pharmaceutical (Shanghai) Co.,Ltd. (“Celgene Shanghai”), a wholly foreign-owned subsidiary of Celgene Holdings East Corporation established under the laws of China, for an undisclosed cash payment. Celgene Shanghai is in the business of, among other things, providing marketing and promotional services in connection with certain pharmaceutical products manufactured by its affiliates. Prior to closing, Celgene Shanghai will separate certain business functions, including regulatory and drug safety, that will continue to support the business acquired by BeiGene. The acquisition is subject to customary closing conditions, including receipt of governmental approvals.

* * *

The foregoing descriptions of the terms of the PD-1 License Agreement and the China License Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of such agreements, which the Company intends to file as exhibits to a subsequent periodic report or on an amendment to this Current Report on Form8-K.

* * *

The representations and warranties and other statements in the various agreements (1)speak only as to the date on which they were made, and may be modified or qualified by confidential schedules or other disclosures, agreements or understandings among the parties, which the parties believe are not required by the securities laws to be publicly disclosed, and (2)may be subject to a different materiality standard than the standard that is applicable to disclosures to investors. Moreover, it was advised that information concerning the subject matter of the representations and warranties and other statements made in the various agreements would likely change after the execution date of such agreements, and subsequent information may or may not be fully reflected in the Company’s public disclosures. Accordingly, investors should not rely upon representations and warranties and other statements in the various agreements as factual characterizations of the actual state of affairs of the Company. Investors should instead look to disclosures contained in the Company’s reports under the Securities Exchange Act of 1934, as amended.

Item 3.02 Unregistered Sales of Equity Securities.

The disclosure set forth under Item 1.01 under the caption “Share Subscription Agreement” is incorporated by reference into this Item 3.02.

Item 7.01 Regulation FD Disclosure.

On July5, 2017, the Company issued a joint press release with Celgene announcing the above-described transactions. A copy of the press release is furnished as Exhibit99.1 to this Current Report on Form8-K and shall not be deemed to be “filed” for purposes of Section18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that Section11 and 12(a)(2) of the Securities Act of 1933, as amended.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

Forward Looking Statements

This Current Report on Form8-K and the materials furnished herewith contain forward-looking information about BeiGene within the meaning of the Private Securities Litigation Reform Act of 1995 and other federal securities laws. Any statements contained herein and therein which do not describe historical facts, including, among others, statements regarding each party’s respective performance of its obligations under the various agreements, including with respect to funding additional clinical trials and conducting commercialization activities; anticipated clinical development plans and costs; expected timing for the closing of the transactions under the various agreements; the timing and amounts of future milestone and royalty payments; and those statements in the materials furnished herewith that are designated as “forward-looking statements” are forward-looking statements which involve risks and uncertainties that could cause actual results to differ materially from those discussed in such forward-looking statements.

Such risks and uncertainties include, among others, (1)the possibility that the closing conditions set forth in the various agreements, including, those related to antitrust clearance, will not be met and that the parties will be unable to consummate the proposed transactions; (2)the possibility that BeiGene will not realize the expected benefits of the transactions, including the anticipated market opportunity; (3)the possibility that significant safety problems could arise with respect to product candidates; (4)uncertainties relating to the manufacture and commercialization; (5)uncertainties relating to patents and proprietary rights; (6)that the cost of the transaction to BeiGene will be more than planned and/or will not provide the intended positive financial results; (7)that BeiGene or Celgene will fail to fully perform their respective obligations under the various agreements; and (8)other risks identified in BeiGene’s Securities and Exchange Commission (“SEC”) filings, including its Annual Report on Form10-K for the year ended December31, 2016, its Quarterly Report on Form10-Q for the quarter ended March31, 2017 and subsequent filings with the SEC. BeiGene cautions you not to place undue reliance on any forward-looking statements, which speak only as of the date they are made. BeiGene disclaims any obligation to publicly update or revise any such statements to reflect any change in expectations or in events, conditions or circumstances on which any such statements may be based, or that may affect the likelihood that actual results will differ from those set forth in the forward-looking statements.

BeiGene, Ltd. Exhibit
EX-10.1 2 a17-16972_1ex10d1.htm EX-10.1 Exhibit 10.1   Execution Version   SHARE SUBSCRIPTION AGREEMENT   By and Between   Celgene Switzerland LLC   and   BeiGene,…
To view the full exhibit click here

About BEIGENE,LTD. (NASDAQ:BGNE)

BeiGene, Ltd. is a biopharmaceutical company. The Company is engaged in the discovery and development of molecularly targeted and immuno-oncology drugs for the treatment of cancer. It is developing its product candidate, BGB-3111, a potent and selective small molecule Bruton’s tyrosine kinase (BTK) inhibitor, as a monotherapy and in combination with other therapies for the treatment of a range of lymphomas. It is developing its product candidate, BGB-A317, a humanized monoclonal antibody against the immune checkpoint receptor programmed cell death protein 1 (PD-1), as a monotherapy and as a combination agent for various solid-organ and blood-borne cancers. It is developing BGB-290, a molecularly targeted, orally available, potent and selective inhibitor of poly ADP ribose polymerase 1 (PARP1) and PARP2, as a monotherapy and in combination with other therapies for the treatment of homologous recombination deficient cancers. It is also developing BGB-283 for the treatment of cancers.