BeyondSpring Inc.
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By:
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/s/ Lan Huang | ||
Name: Lan Huang
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Title: Chairman and Chief Executive Officer
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Date: July 24, 2020
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Exhibit No.
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Exhibit
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Amendment to the BeyondSpring Inc. 2017 Omnibus Incentive Plan, effective July 24, 2020.
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Form of Amendment to Director Agreement
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99.3
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Form of Director Agreement
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RE: |
First Amendment to BeyondSpring Inc. Director Agreement
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i.
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Annual retainer fee for service as Board member (the “Annual Fee”)
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$40,000
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ii.
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Annual retainer fee for serving on a committee of the Board, if so appointed (each, a “Committee Fee”)
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Audit Committee: $8,000 ($16,000 if chair)
Compensation Committee: $6,000 ($12,000 if chair)
Nominating and Corporate Governance Committee: $4,000 ($8,000 if chair)
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Sincerely,
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[__]
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[__]
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Accepted and agreed this _____ day of ____, 2020:
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[name]
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1. |
Definitions
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“Board”
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means the board of directors of the Company, including any committee of the Board duly constituted by it;
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“Businesses”
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means:
(a) the business of the research, development, design, production, manufacturing,
marketing, sale, distribution and other commercial activities of any Group Company in relation to the Group’s proprietary and/or licensed technology concerning the development of cancer therapies; and
(b) any other business that any Group Company shall at the relevant date
(i) be engaged in and with which you shall have been concerned or involved to any
material extent at any time during Your Appointment; or
(ii) have determined to carry on with a view to developing any other biotechnical
technology for commercial exploitation in the future and in relation to which determination you shall at the Termination Date possess any material Confidential Business Information;
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“Confidential Information”
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means all and any Corporate Information, Marketing Information, Technical Information and other information (whether or not recorded in documentary form or on computer disk or tape) which the Company or any
Group Company treats as confidential or in respect of which it owes an obligation of confidentiality to any third party, which is not in the public domain:
(a) which you shall have acquired or shall hereafter acquire at any time during Your Appointment in your capacity as a director; and
(b) which is not readily ascertainable to persons not connected with the Company or any Group Company;
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2. |
Duties
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2.1 |
As a director of the Company you will be expected to exercise the general fiduciary duties and duties of care and loyalty as provided under the laws of the Cayman Islands and provide such advice and services as the
Board may reasonably require.
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2.2 |
The Board as a whole is collectively responsible for the success of the Company. The Board’s role is to:
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2.2.1 |
provide entrepreneurial leadership of the Company within a framework of prudent and effective controls, which enable risk to be assessed and managed;
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2.2.2 |
set the Group’s strategic aims, develop the necessary financial and human resources for the Company to meet its objectives and review management performance; and
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2.2.3 |
set the Company’s values and standards in light of its obligations to its shareholders and others.
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2.3 |
In your role as a non-executive director, you shall be required to:
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2.3.1 |
constructively challenge and contribute to the development of the Group’s strategy;
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2.3.2 |
scrutinize the performance of management in meeting agreed goals and objectives and monitor the reporting of performance;
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2.3.3 |
satisfy yourself that financial information is accurate and that financial controls and systems of risk management are appropriate, robust and defensible;
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2.3.4 |
use your best efforts to attend all meetings of the Board and the annual and all other meetings of the shareholders of the Company;
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2.3.5 |
at all times comply with the Memorandum and Articles of Association of the Company, each as the same may be amended or restated from time to time;
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2.3.6 |
abide by your fiduciary duties as a director of the Company;
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2.3.7 |
diligently perform your duties;
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2.3.8 |
immediately report your own wrongdoing or the wrongdoing or proposed wrongdoing of any other employee or director of the Company of which you become aware to the Chairman of the Board; and
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2.3.9 |
comply with the terms of the BeyondSpring Inc. Code of Ethics and Business Conduct adopted by the Board (a copy of which is enclosed herewith) and any other code of practice issued by the Company from time to time
relating to dealing in the Company’s securities.
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2.4 |
In addition, your duties require that you shall:
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2.4.1 |
promote the highest standards of integrity, probity and corporate governance throughout the Company, particularly at Board level;
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2.4.2 |
use your best efforts to ensure that the Board receives accurate, timely and clear information;
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2.4.3 |
use your best efforts to ensure effective communication with shareholders;
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2.4.4 |
use your best efforts to facilitate the effective contribution of non-executive directors and promote constructive relations are maintained between the executive and non-executive directors;
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2.4.5 |
at the request of the Company, serve on committees of the Board as shall be agreed between you and the Chairman of the Board.
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3. |
Time Commitment
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4. |
Fees
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i.
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Annual retainer fee for service as Board member (the “Annual Fee”)
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$40,000
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ii.
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Annual retainer fee for serving on a committee of the Board, if so appointed (each, a “Committee Fee”)
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Audit Committee: $8,000 ($16,000 if chair)
Compensation Committee: $6,000 ($12,000 if chair)
Nominating and Corporate Governance Committee: $4,000 ($8,000 if chair)
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5. |
Term of Office
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6. |
Expenses
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7. |
Confidentiality
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7.1 |
Both during your service on the Board and after the Termination Date, you agree and will undertake to maintain any and all Confidential Information in strict confidence at all times and you shall not, directly or
indirectly, publish, reveal or otherwise disclose or make available any such Confidential Information to any person or entity and will not use Confidential Information for any purpose. Notwithstanding the foregoing, these obligations shall
not apply to any Confidential Information that:
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7.1.1 |
is necessary for the proper and effective performance of your duties as a director of the Company and then only with the prior written consent of the Company; and to a person who shall be subject to equivalent,
express, written confidentiality obligations to the Company or a Group Company;
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7.1.2 |
to the extent that such information is or (without default of your part) becomes generally available to the public;
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7.1.3 |
to the extent that you shall be required to disclose the same by any applicable law or legally binding order of any court, government, semi-governmental authority, administrative or judicial body, or a legally
binding requirement of a stock exchange or regulator; or
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7.1.4 |
to the extent the Company approved such release in a prior written consent.
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7.2 |
If you are required to make a disclosure as contemplated in clause 7.1.3:
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7.2.1 |
you must disclose only the minimum Confidential Business Information required to comply with the applicable law, order or requirement; and
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7.2.2 |
before making such disclosure, you must:
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(a) |
give the Company reasonable written notice of:
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(i) |
the full circumstances of the requirement for disclosure arising; and
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(ii) |
the Confidential Business Information which you propose to disclose; and
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(b) |
consult with the Company as to the form of the disclosure.
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7.3 |
By your counter-signature hereto, you acknowledge that:
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7.3.1 |
the Company and each Group Company possess a valuable body of Confidential Business Information;
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7.3.2 |
the Company has given and will continue to give you access to Confidential Business Information in order that you may carry out your duties hereunder;
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7.3.3 |
your duties include, without limitation, a duty of care and a duty of loyalty as provided under the laws of the Cayman Islands;
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7.3.4 |
the disclosure of any Confidential Business Information other than as permitted in Clause 7.3 could place Company and any impacted Group Company at a serious competitive disadvantage and could cause immeasurable
(financial and other) damage to the Businesses; and
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7.3.5 |
that the obligations of confidentiality assumed under the provisions of this clause 7 are reasonable and necessary for the protection of the Group, the Businesses and the Confidential Business Information.
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8. |
Other Interests and Restrictions
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8.1 |
It is accepted and acknowledged that you have business interests other than those of the Company and that you have declared any potential conflicts that are apparent at present. If you become aware of any potential
conflicts of interest after the date hereof, these should be disclosed to the Chairman of the Board and company secretary or otherwise in accordance with the articles of association of the Company as soon as you become aware thereof.
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8.2 |
By your counter-signature hereto, you agree and undertake that, during the term of Your Appointment, you shall not, without the Company’s written permission, assume or hold any Material Interest in any person, firm
or company which:
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8.2.1 |
impairs or might reasonably be expected by the Board to impair your ability to act at all times in the best interests of the Company; or
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8.2.2 |
requires or might reasonably be expected by the Board to require you to disclose any Confidential Business Information in order to properly discharge your duties to or to further your interest in such person, firm
or company.
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8.3 |
By your counter-signature hereto, you agree and undertake that you will not at any time after the Termination Date, represent or hold yourself out or permit yourself to be represented or held out by any person, firm
or company as being in any way then currently connected with or interested in the Company or any Group Company other than (if such be the case) as the holder of shares, options and/or warrants in the Company.
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8.4 |
By your counter-signature hereto, you agree and confirm that neither this Letter, nor your or our actions, past, present or future constitute a contract of employment and no employer-employee relationship exists or
will exist between the Company or any member of the Group and you and to indemnify and hold harmless the Company, its directors, officers, employees and assignees harmless from and against any and all demands and/or claims addressed against
the Company by you or on your behalf, or any third party, in connection with any alleged employment relationship between the Company and you, or in connection with any liability, obligation, debt or responsibility deriving from such
relationship, including by virtue of any agreement, arrangement, statute, extension order, custom or the like. You will be treated as an independent contractor for purposes of the Federal Insurance Contributions Act, Federal Income Tax
Withholding, the Employee Retirement Income Security Act, state unemployment or disability insurance laws, and any other employment taxes or laws. In this regard, the Company will not make deductions from payments made to you for taxes,
which shall be your responsibility.
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8.5 |
Each of the provisions of clauses 8.2, 8.3 and 8.4 and (where applicable) the sub-clauses thereof is independent and severable from the remaining provisions and enforceable accordingly. If any provision of the said
clauses/sub-clauses shall be unenforceable for any reason but would be enforceable if part of the wording thereof were deleted, it shall apply with such deletions as may be necessary to make it enforceable.
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8.6 |
You have given the undertakings contained in this clause 8 to the Company itself and to the Company as trustee for the benefit of each Group Company and will, at the request and cost of the Company, promptly enter
into direct undertakings with any Group Company which correspond to the undertakings in this clause 8.
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8.7 |
The Company agrees that each Material Interest that you assume or hold as of the date hereof is hereby permitted.
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8.8 |
Notwithstanding anything herein to the contrary, pursuant to 18 U.S.C. § 1833(b), you will not be held criminally or civilly liable under any U.S. federal or state trade secret law for the disclosure of a trade
secret of the Company that (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to your attorney and (ii) solely for the purpose of reporting or investigating a suspected violation
of law; or (b) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. If you file a lawsuit for retaliation by the Company for reporting a suspected violation of law, you may disclose the trade
secret to your attorney and use the trade secret information in the court proceeding, if you (I) file any document containing the trade secret under seal, and (II) do not disclose the trade secret, except pursuant to court order. Nothing
herein is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by such section. Further, nothing in any agreement you have with the Company shall prohibit or restrict
you from making any voluntary disclosure of information or documents related to any violation of law to any governmental agency or legislative body, or any self-regulatory organization, in each case, without advance notice to the Company.
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9. |
Independent Legal Advice
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10. |
Governing Law and Jurisdiction
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Date
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