As filed with the Securities and Exchange Commission on February 28, 2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BEIGENE, LTD.
(Exact name of registrant as specified in its charter)
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Cayman Islands |
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Not applicable |
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(State or other jurisdiction of
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(I.R.S. Employer
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c/o Mourant Ozannes Corporate Services (Cayman) Limited
94 Solaris Avenue, Camana Bay
Grant Cayman KY1-1108
Cayman Islands
+1 (345) 949 4123
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
2016 Share Option and Incentive Plan, as amended
(Full title of the plan)
C T Corporation System
111 Eighth Avenue
New York, New York 10011
(212) 894-8940
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Scott A. Samuels
Senior Vice President, General Counsel
c/o Mourant Ozannes Corporate Services (Cayman) Limited
94 Solaris Avenue, Camana Bay
Grant Cayman KY1-1108
Cayman Islands
+1 (345) 949 4123
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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(Do not check if a smaller reporting company) |
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Smaller reporting company |
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Emerging growth company |
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o
CALCULATION OF REGISTRATION FEE
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Title of Securities
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Amount
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Proposed
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Proposed
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Amount of
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Ordinary Shares, par value $0.0001 per share |
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29,931,801 |
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11.81 |
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353,494,570 |
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44,011 |
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(1) These shares may be represented by the Registrant’s American Depositary Shares (“ADSs”). Each ADS represents 13 Ordinary Shares. ADSs issuable upon deposit of the Ordinary Shares registered hereby were registered pursuant to a separate Registration Statement on Form F-6 (File No. 333-209044).
(2) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional Ordinary Shares which become issuable under the Registrant’s 2016 Share Option and Incentive Plan (as amended, the “Plan”) by reason of any share dividend, share split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of our outstanding Ordinary Shares.
(3) Represents (i) an automatic increase to the number of shares available for issuance under the Plan, consisting of an increase of 29,603,616 Ordinary Shares, effective January 1, 2018 and (ii) 328,185 Ordinary Shares returned to the Plan as a result of the forfeiture of restricted share awards previously granted under the Plan.
(4) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act, and based on the average of the high and low sale prices of the Registrant’s ADSs, as quoted on the NASDAQ Global Select Market, on February 23, 2018.
REGISTRATION OF ADDITIONAL SECURITIES PURSUANT TO GENERAL INSTRUCTION E
This Registration Statement on Form S-8 registers additional ordinary shares under the 2016 Share Option and Incentive Plan (as amended, the “Plan”). The number of ordinary shares reserved and available for issuance under the Plan is subject to an automatic annual increase on each January 1, which began in 2017, by an amount equal to five percent of the number of ordinary shares issued and outstanding on the immediately preceding December 31 or such lesser number of ordinary shares as determined by the Administrator (as defined in the Plan). Accordingly, on January 1, 2018, the number of ordinary shares reserved and available for issuance under the Plan increased by 29,603,616 shares. In addition, 328,185 ordinary shares were returned to the Plan as a result of the forfeiture of restricted share awards previously granted under the Plan. This Registration Statement registers these additional 29,931,801 ordinary shares. The additional shares are of the same class as other securities relating to the Plan for which the Registrant’s registration statements filed on Form S-8 (Registration Nos. 333-209410, 333-214064 and 333-216885) on February 25, 2016, October 11, 2016 and March 22, 2017 are effective. The information contained in those registration statements is hereby incorporated by reference pursuant to General Instruction E.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS
See the Exhibit Index on the page immediately preceding the exhibits for a list of exhibits filed as part of this Registration Statement, which Exhibit Index is incorporated herein by reference.
EXHIBIT INDEX
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Exhibit
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Description |
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4.1(1) |
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4.2(2) |
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4.3(3) |
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4.4(4) |
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4.5(5) |
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4.6(6) |
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4.7(7) |
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4.8(8) |
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Letter Agreement, dated as of July 11, 2016, between the Registrant and Citibank, N.A. |
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4.9(9) |
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Form of Letter Agreement, between the Registrant and Citibank, N.A. |
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4.10(10) |
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Share Subscription Agreement, dated July 5, 2017, between the Registrant and Celgene Switzerland LLC |
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5.1 |
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Opinion of Mourant Ozannes regarding the issue of ordinary shares being registered |
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23.1 |
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23.2 |
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24.1 |
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99.1(11) |
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2011 Option Plan, as amended and form of option agreement thereunder |
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99.2(12) |
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2016 Share Option and Incentive Plan and forms of agreements thereunder |
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99.3(13) |
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Amendment No. 1 to the Registrant’s 2016 Share Option and Incentive Plan |
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99.4(14) |
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(1) Filed as Exhibit 3.1 to Registrant’s Current Report on Form 8-K (File No. 001-37686), filed with the U.S. Securities and Exchange Commission on February 11, 2016, and incorporated herein by reference.
(2) Filed as Exhibit 4.1 to Registrant’s Current Report on Form 8-K (File No. 001-37686), filed with the U.S. Securities and Exchange Commission on February 11, 2016, and incorporated herein by reference.
(3) Filed as Exhibits 4.1 and 4.2 to Registrant’s Current Report on Form 8-K (File No. 001-37686), filed with the U.S. Securities and Exchange Commission on April 11, 2016, and incorporated herein by reference.
(4) Filed as Exhibit 4.3 to the Registrant’s Registration Statement on Form S-1 (File No. 333-207459), filed with the U.S. Securities and Exchange Commission on December 9, 2015, and incorporated herein by reference.
(5) Filed as Exhibit 4.4 to the Registrant’s Registration Statement on Form S-1 (File No. 333-207459), filed with the U.S. Securities and Exchange Commission on October 16, 2015, and incorporated herein by reference.
(6) Filed as Exhibit 10.21 to the Registrant’s Registration Statement on Form S-1 (File No. 333-207459), filed with the U.S. Securities and Exchange Commission on January 27, 2016, and incorporated herein by reference.
(7) Filed as Exhibit 4.1 to the Registrant’s Current Report on Form 8-K (File No. 001-37686) filed with the U.S. Securities and Exchange Commission on November 17, 2016, and incorporated herein by reference.
(8) Filed as Exhibit 4.7 to the Registrant’s Quarterly Report on Form 10-Q (File No. 001-37686), filed with the U.S. Securities and Exchange Commission on August 10, 2016, and incorporated herein by reference.
(9) Filed as Exhibit 4.9 to Registrant’s Quarterly Report on Form 10-Q (File No. 001-37686), filed with the U.S. Securities and Exchange Commission on May 10, 2017, and incorporated herein by reference.
(10) Filed as Exhibit 10.1 to Registrant’s Current Report on Form 8-K (File No. 001-37686), filed with the U.S. Securities and Exchange Commission on July 6, 2017, and incorporated herein by reference.
(11) Filed as Exhibit 10.1 to Registrant’s Registration Statement on Form S-1 (File No. 333-207459), filed with the U.S. Securities and Exchange Commission on October 16, 2015, and incorporated herein by reference.
(12) Filed as Exhibit 10.2 to Registrant’s Registration Statement on Form S-1 (File No. 333-207459), filed with the U.S. Securities and Exchange Commission on January 19, 2016, and incorporated herein by reference.
(13) Filed as Exhibit 10.4 to Registrant’s Quarterly Report on Form 10-Q (File No. 001-37686), filed with the U.S. Securities and Exchange Commission on November 13, 2017, and incorporated herein by reference.
(14) Filed as Exhibit 10.5 to Registrant’s Quarterly Report on Form 10-Q (File No. 001-37686), filed with the U.S. Securities and Exchange Commission on November 13, 2017, and incorporated herein by reference.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Hong Kong on February 28, 2018.
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BEIGENE, LTD. |
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By: |
/s/ John V. Oyler |
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Name: |
John V. Oyler |
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Title: |
Chief Executive Officer and Chairman |
We, the undersigned directors, officers and/or authorized representative in the United States of BeiGene, Ltd., hereby severally constitute and appoint John V. Oyler and Howard Liang, and each of them singly, our true and lawful attorneys, with full power to any of them, and to each of them singly, to sign for us and in our names in the capacities indicated below the registration statement on Form S-8 filed herewith, and any and all pre-effective and post-effective amendments to said registration statement, under the Securities Act of 1933, as amended, in connection with the registration under the Securities Act of 1933, as amended, of equity securities of BeiGene, Ltd., and to file or cause to be filed the same, with all exhibits thereto and other documents in connection therewith, with the U.S. Securities and Exchange Commission, granting unto said attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as each of them might or could do in person, and hereby ratifying and confirming all that said attorneys, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue of this Power of Attorney.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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Chief Executive Officer and Chairman |
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February 28, 2018 |
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/s/ John V. Oyler |
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(Principal Executive Officer) |
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John V. Oyler |
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Chief Financial Officer and Chief Strategy Officer (Principal Financial and Accounting Officer) |
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February 28, 2018 |
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/s/ Howard Liang |
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Howard Liang |
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/s/ Timothy Chen |
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Director |
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February 28, 2018 |
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Timothy Chen |
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/s/ Donald W. Glazer |
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Director |
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February 28, 2018 |
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Donald W. Glazer |
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/s/ Michael Goller |
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Director |
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February 28, 2018 |
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Michael Goller |
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/s/ Ranjeev Krishana |
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Director |
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February 28, 2018 |
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Ranjeev Krishana |
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/s/ Thomas Malley |
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Director |
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February 28, 2018 |
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Thomas Malley |
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/s/ Xiaodong Wang |
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Director |
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February 28, 2018 |
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Xiaodong Wang |
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/s/ Qingqing Yi |
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Director |
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February 28, 2018 |
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Qingqing Yi |
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BeiGene USA, Inc. |
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Authorized Representative in the United States |
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February 28, 2018 |
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By: |
/s/ John V. Oyler |
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Name: |
John V. Oyler |
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Title: |
Chief Executive Officer |
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6th Floor
T +44 20 7796 7600
mourantozannes.com |
BeiGene, Ltd.
94 Solaris Avenue
Camana Bay
PO Box 1348
Grand Cayman, KY1-1108
Cayman Islands
28 February 2018
Dear Sirs,
BeiGene, Ltd. (the Company )
We have acted as Cayman Islands legal advisers to the Company and have examined the registration statement on Form S-8 (the Registration Statement ), to be filed by the Company with the Securities and Exchange Commission (the Commission ) relating to the registration under the Securities Act of 1933, as amended, of an additional amount of Ordinary Shares of par value US$0.0001 in the capital of the Company (the Shares ) for issuance pursuant to the Company’s 2016 Share Option and Incentive Plan (as amended, the Plan ).
As Cayman Islands counsel to the Company, we have examined the corporate authorisations of the Company in connection with the establishment of the Plan, the registration of the Plan with the Commission and the issue of the Shares pursuant to the Plan by the Company and have assumed that the Shares have been and will be issued in accordance with the Plan and the resolutions authorising their issue. Furthermore, we have assumed that the resolutions upon which we have relied were passed by the directors of the Company and/or the shareholders of the Company in the manner provided for in the articles of association of the Company which were in full force and effect at the time that the authorisations were given and that those authorisations have not been in any way amended, revoked or superseded and are in full force and effect.
It is our opinion that the Shares to be issued by the Company have been duly and validly authorised, and when issued, sold and paid for in the manner described in the Plan in accordance with the resolutions adopted by the Board of Directors of the Company (or any committee to whom the Board of Directors have delegated their powers with respect to administration of the Plan) and when appropriate entries have been made in the Register of Members of the Company, will be legally issued and credited as fully paid and non-assessable.
This opinion is subject to the qualification that under the Companies Law (as amended) of the Cayman Islands, the register of members of a Cayman Islands company is by statute regarded as prima facie evidence of any matters which the Companies Law (as amended) directs or authorises to be inserted therein. A third party interest in the shares in question would not appear. An entry in the register of members may yield to a court order for rectification (for example, in the event of fraud or manifest error).
In this opinion the phrase non-assessable means, with respect to Shares in the Company, that a member shall not, solely by virtue of its status as a member, be liable for additional assessments or calls on the Shares by the Company or its creditors (except in exceptional circumstances and subject to the Company’s articles of association, 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).
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us in the Registration Statement and any amendments thereto.
Mourant Ozannes is a Cayman Islands partnership
A list of the partners is available at mourantozannes.com
In giving such consent, we do not consider that we are “ experts ” within the meaning of such term as used in the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission issued thereunder, with respect to any part of the Registration Statement, including this opinion as an exhibit or otherwise.
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Yours faithfully |
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/s/ Mourant Ozannes |
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Mourant Ozannes |
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Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2016 Share Option and Incentive Plan, as amended, of BeiGene, Ltd. of our reports dated February 28, 2018, with respect to the consolidated financial statements of BeiGene, Ltd. and the effectiveness of internal control over financial reporting of BeiGene, Ltd. included in its Annual Report (Form 10-K) for the year ended December 31, 2017, filed with the Securities and Exchange Commission.
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/s/ Ernst & Young Hua Ming LLP |
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Beijing, People’s Republic of China |
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February 28, 2018 |