BeyondSpring Inc. (Form: 6-K, Received: 02/07/2020 17:15:47)

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

For the month of February, 2020

Commission File Number: 001-38024

BeyondSpring Inc.

28 Liberty Street, 39th Floor

New York, New York 10005

(Address of principal executive office)

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 ☐

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐

Note: Regulation S-T Rule 101(b)(1) only permits the submission in paper of a Form 6-K if submitted solely to provide an attached annual report to security holders.

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ☐

Note: Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form 6-K if submitted to furnish a report or other document that the registrant foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrant’s “home country“), or under the rules of the home country exchange on which the registrant’s securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrant’s security holders, and, if discussing a material event, has already been the subject of a Form 6-K submission or other Commission filing on EDGAR.

On February 7, 2020, BeyondSpring Inc. (the “Company”) entered into Amendment No.1 (the “Amendment”) to the Open Market Sale Agreement^SM, dated May 21, 2019 (the “Original Sales Agreement” and together with the Amendment, the “Sales Agreement”), with Jefferies LLC as sales agent (the “Agent”) in connection with the Company’s “at the market offering” program (the “ATM Program”). Under the Original Sales Agreement, the Company may offer and sell under the ATM Program ordinary shares of the Company, par value $0.0001 per share (the “Ordinary Shares”), having a maximum aggregate sales price of up to $30,000,000 from time to time through the Agent. Pursuant to the Amendment, the Company may offer and sell up to 2,202,080 Ordinary Shares in the aggregate from time to time through the Agent. Pursuant to a prospectus supplement filed on the date hereof, 1,581,327 Ordinary Shares (the “Offered Shares”) remain available for offer and sale under the Sales Agreement. The Company has previously sold 620,753 Ordinary Shares, having aggregate gross proceeds of $13,023,256 under the ATM Program.

Subject to the terms and conditions of the Sales Agreement, the Agent has agreed to use its commercially reasonable efforts to sell the Ordinary Shares from time to time, based upon the Company’s instructions. The Agent will be entitled to a commission at a fixed rate of 3.0% of the gross sales price for such Ordinary Shares sold pursuant to the Sales Agreement. The sales, if any, of the Ordinary Shares under the Sales Agreement will be made by any method permitted by law that is deemed an “at the market offering” as defined in Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”). The Sales Agreement contains customary representations and warranties of the parties and indemnification and contribution provisions under which the Company has agreed to indemnify the Agent against certain liabilities, including liabilities under the Securities Act. The Agent and the Company have the right, by giving written notice as specified in the Sales Agreement, to terminate the Sales Agreement.

The offering has been registered under the Securities Act pursuant to the Company’s shelf registration statement on Form F-3 (Registration No. 333-224437), as supplemented by the Prospectus Supplement dated February 7, 2020 relating to the sale of the Ordinary Shares. This report shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of the Ordinary Shares in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.

Copies of the Original Sales Agreement and the Amendment are attached as Exhibit 1.1 and Exhibit 1.2 hereto and are incorporated herein by reference. The foregoing description of the Original Sales Agreement, the Amendment and the Sales Agreement does not purport to be complete and is qualified in its entirety by reference to such exhibits.

A copy of the opinion of Maples and Calder (Hong Kong) LLP relating to the validity of the Offered Shares is filed herewith as Exhibit 5.1.

The information contained in this report is hereby incorporated by reference into the Registration Statement on Form F-3, File No. 333-224437, the Registration Statement on Form F-3, File No. 333-234193 and the Registration Statement on Form S-8, File No. 333-216639.

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.

	BeyondSpring Inc.

	By:	/s/ Lan Huang
	Name:	Lan Huang
	Title:	Chairman and Chief Executive Officer

Date: February 7, 2020

EXHIBIT INDEX

Exhibit No.	Exhibit

1.1	Open Market Sale Agreement, dated as of May 21, 2019, by and between the Company and Jefferies LLC (incorporated by reference to Exhibit 1.1 of the Current Report on Form 6-K filed on May 22, 2019).

1.2	Amendment No. 1 to the Open Market Sale Agreement, dated as of February 7, 2020, by and between the Company and Jefferies LLC.

5.1	Opinion of Maples and Calder (Hong Kong) LLP.

23.1	Consent of Maples and Calder (Hong Kong) LLP (included in Exhibit 5.1).

Exhibit 1.2

AMENDMENT NO. 1 TO THE OPEN MARKET SALE AGREEMENT^SM

February 7, 2020

JEFFERIES LLC

520 Madison Avenue

New York, New York 10022

Ladies and Gentlemen:

This Amendment No. 1 to the Open Market Sale Agreement^SM(this “Amendment”) is entered into as of the date first written above by BeyondSpring Inc., a Cayman Islands exempted company (the “Company”), and Jefferies LLC (“Agent”), that are parties to that certain Open Market Sale Agreement^SM, dated May 21, 2019 (the “Original Agreement”). All capitalized terms not defined herein shall have the meanings ascribed to them in the Original Agreement. The parties, intending to be legally bound, hereby amend the Original Agreement as follows:

1. The preamble to the Original Agreement is hereby deleted in its entirety and replaced with the following:

“BeyondSpring, Inc., a Cayman Islands exempted company (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell from time to time through Jefferies LLC, as sales agent and/or principal (the “Agent”), up to 2,202,080 ordinary shares of the Company, par value $0.0001 per share (the “Ordinary Shares”) under the registration statement on Form F-3 (File No. 333-224437) on the terms set forth in this agreement (this “Agreement”).

2. The last sentence of Section 3(d) to the Original Agreement is hereby deleted and replaced with the following:

“Notwithstanding the foregoing, the fees and disbursements of Agent’s counsel shall not exceed (A) $35,000 in connection with the execution of the Amendment No. 1 to the Open Market Sale Agreement^SM, dated as of February 7, 2020 (the “Amendment”), and the first Issuance Notice after the execution of the Amendment and (B) $15,000 in connection with each Triggering Event Date occurring after the date hereof, on which the Company is required to provide a certificate pursuant to Section 4(o).”

3. The Company represents and warrants to, and agrees with the Agent that as of the date of this Amendment: (a) this Amendment has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company, enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.

4. This Amendment together with the Original Agreement constitutes the entire agreement of the parties hereto and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Amendment may not be amended or modified unless in writing by all the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The invalidity or unenforceability of any provision contained herein shall not affect the validity or enforceability of any other provision hereof. If any provision of this Amendment is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable. All references in the Original Agreement to the “Agreement” shall mean the Original Agreement as amended by this Amendment; provided, however, that all references to “date of this Agreement” in the Original Agreement shall continue to refer to the date of the Original Agreement.

5. This Amendment shall be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed in such state. Any legal suit, action or proceeding arising out of or based upon this Amendment or the transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts of the United States of America located in the Borough of Manhattan in the City of New York or the courts of the State of New York in each case located in the Borough of Manhattan in the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum. The provisions of this paragraph shall survive any termination of this Amendment.

6. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed amendment by one party to the other may be made by facsimile transmission or electronic transmission (e.g., PDF).

[Remainder of Page Intentionally Blank]

If the foregoing correctly sets forth the understanding between the Company and the Agent, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding amendment to the Original Agreement between the Company and the Agent.

Very truly yours,

JEFFERIES LLC

By:	/s/ Michael Magarro
Name:	Michael Magarro
Title:	Managing Director

ACCEPTED as of the date first-above written:

BEYONDSPRING INC.

By:	/s/ Edward Dongheng Liu
Name:	Edward Dongheng Liu
Title:	Chief Financial Officer

[Signature Page to Amendment No. 1 to the Open Market Sale Agreement]

Our ref RDS/715660-000001/16116033v2

28 Liberty Street, 39th Floor

New York, New York 10005

Dear Sirs and/or Madams

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 filed with the Securities and Exchange Commission (the "SEC") under the U.S. Securities Act of 1933 on 25 April 2018 and declared effective by the SEC on 3 May 2018, 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").

We are furnishing this opinion as Exhibits 5.1 and 23.1 to the Registration Statement.

1	Documents Reviewed

For the purposes of this opinion, we have reviewed only originals, copies or final drafts of the following documents:

1.1	The certificate of incorporation of the Company dated 21 November 2014.

1.2	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 Shares (the "Memorandum and Articles").

1.3	The written resolutions of the board of directors of the Company dated 24 April 2018 (the "Directors' Resolutions").

1.4	The written resolutions of the offering committee of the board of directors of the Company (the "Offering Committee") dated 17 May 2019 and 6 February 2020 (together, the "Committee Resolutions").

1.5	A certificate from a director of the Company, a copy of which is attached hereto (the "Director's Certificate").

1.6	A certificate of good standing dated 11 July 2019, issued by the Registrar of Companies in the Cayman Islands (the "Certificate of Good Standing").

1.7	The Registration Statement.

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:

2.1	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.

2.2	All signatures, initials and seals are genuine.

2.3	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.

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:

3.1	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.

3.2	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.

3.3

The issue and allotment of the Shares have been duly authorised and when allotted, issued and paid for as contemplated in the Registration Statement, the 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).

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, 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).

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 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. 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.

/s/ Maples and Calder (Hong Kong) LLP

Maples and Calder (Hong Kong) LLP