Form of Warrant to Purchase Ordinary Shares, dated October 16, 2019, issued by Lian Oncology
THIS WARRANT AND THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ACT). THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE DISTRIBUTION THEREOF. THESE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO THESE SECURITIES OR (2) THERE IS AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY, THAT AN EXEMPTION THEREFROM IS AVAILABLE.
FORM OF WARRANT TO PURCHASE ORDINARY SHARES
Issue Date: October 16, 2019
Warrant Number: A-1
THIS WARRANT IS TO CERTIFY THAT, QED Therapeutics, Inc. (the Purchaser and, together with its nominees, successors or assigns, including any subsequent holder of this Warrant to whom it has been legally transferred, the Holder) is entitled to purchase from Lian Oncology, an exempted company organized under the laws of the Cayman Islands (the Company), 33,333 ordinary shares, par value US$0.0001 per share (subject to adjustment in accordance with the terms hereof, the Warrant Shares), at US$0.0001 per share (subject to adjustment in accordance with the terms hereof, the Exercise Price). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Exclusive License Agreement, entered into as of October 16, 2019, by and between the Purchaser and the Company (the License Agreement).
Section 1. Exercise of Warrant.
(a) At any time on or after the first to occur of:
the consummation of any underwritten initial public offering and listing of the ordinary shares of the Company on a securities exchange approved by the Board of Directors of the Company (the Board); or
immediately prior to the consummation of: (x) a sale, transfer, exclusive license or other disposition, in one transaction or a series of related transactions, of all or substantially all of the Companys and its subsidiaries assets, taken as a whole or (y) a merger or consolidation of the Company with or into another entity, except any merger or consolidation in which the holders of equity of the Company immediately prior to such merger or consolidation continue to hold a majority of the voting power of the surviving entity (or, if the surviving entity is a wholly-owned subsidiary of another party immediately following such merger or consolidation, the parent entity of such surviving entity) approved by the Board, but in each case prior to the tenth (10th) anniversary of the Issue Date (the Exercise Period),
the Holder may, at any time and from time to time, exercise this Warrant, in whole or in part.
(b) The Holder shall exercise this Warrant by means of delivering to the Company:
a written Notice of Exercise in the form attached hereto as Exhibit A, which shall include the number of Warrant Shares to be delivered pursuant to such exercise (the Notice of Exercise);
this Warrant; and
payment equal to the Exercise Price by cash, certified check to the order of the Company or wire transfer of immediately available funds to an account specified by the Company.
(c) The Holder may, in lieu of exercising or converting this Warrant pursuant to the terms of Section 1(b), elect to exchange this Warrant, in whole or in part (except as to a fractional share), at any time and from time to time during normal business hours on any business day during the Exercise Period by (i) delivering to the Company a written notice, in the form attached hereto as Exhibit B (the Exchange Notice), duly executed by the Holder, specifying the number of Warrant Shares for which the Warrant is being exchanged, and (ii) surrendering this Warrant to the Company, properly endorsed by the Holder (or if this Warrant has been destroyed, stolen or has otherwise been misplaced, by delivering to the Company an affidavit of loss duly executed by the Holder), and the Holder shall thereupon been entitled to receive the number of Warrant Shares equal to the product of (i) the number of Warrant Shares issuable upon exercise of this Warrant (or, if only a portion of this Warrant is being exercised, issuable upon the exercise of such portion) for cash, determined as provided in Section 2, and (ii) a fraction, the numerator of which is the Fair Market Value (as defined below) per ordinary share of the Company at the time of such exercise minus the Warrant Price in effect at the time of such exercise, and the denominator of which is the Fair Market Value per ordinary share of the Company at the time of such exercise, such number of shares so issuable upon such exchange to be rounded up or down to the nearest whole number of ordinary shares of the Company. The exchange of this Warrant pursuant to this Section 1(c) is intended to qualify as a recapitalization within the meaning of Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended. For purposes of this Warrant, Fair Market Value means the fair market value of an ordinary share of the Company, as determined in good faith by the Board.
(d) Upon exercise of this Warrant in accordance with Section 1(b) or Section 1(c), the Company shall cause to be executed and delivered to the Holder a certificate or certificates representing the aggregate number of fully-paid and non-assessable Warrant Shares issuable upon such exercise. Such certificate or certificates shall be in such denominations as may be specified in the Notice of Exercise or Exchange Notice, as applicable, and shall be registered in the name of the Holder or such other name or names as may be designated in the Notice of Exercise or Exchange Notice, as applicable.
(e) The share certificate or certificates issuable upon exercise of this Warrant shall be deemed to have been issued, and the Holder or any other person so designated to be named therein shall be deemed to have become the holder of record of such shares (including to the extent permitted by law the right to vote such shares or to consent or to receive notice as stockholders), upon the delivery of all deliverables set forth in Section 1(b) or Section 1(c).
(f) The Holder shall be responsible for all transfer taxes resulting from the fact that any certificate issued in respect of Warrant Shares is not in the name of the Holder.
(g) All Warrant Shares issuable upon the exercise of this Warrant in accordance with the terms hereof shall be validly issued, fully paid and non-assessable, and free from all liens and other encumbrances thereon, other than liens or other encumbrances created by the Holder or restrictions upon transfer under federal or state securities laws.
(h) During the Exercise Period, the Company shall at all times reserve and keep available out of its authorized but unissued ordinary shares or other securities constituting Warrant
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Shares, solely for the purpose of issuance upon the exercise of this Warrant, the maximum number of Warrant Shares issuable upon the exercise of this Warrant, and the par value per Warrant Share shall at all times be less than or equal to the applicable Exercise Price. The Company shall not increase the par value of any Warrant Shares receivable upon the exercise of this Warrant above the Exercise Price then in effect, and shall take all such actions as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable ordinary shares of the Company upon the exercise of this Warrant.
(i) In no event shall any fractional Warrant Share be issued upon exercise of this Warrant. If, upon exercise of this Warrant, the Holder would, except as provided in this paragraph, be entitled to receive a fractional Warrant Share, then the Company shall, at the Companys sole discretion, either (i) deliver in cash to such holder an amount equal to such fractional interest, or (ii) issue a whole share in lieu of such fractional share.
Section 2. Adjustment of Exercise Price and Warrant Shares.
(a) Subdivision or Combination of Ordinary Shares. If, at any time during the Exercise Period, the number of outstanding ordinary shares of the Company is (i) increased by a share dividend payable in ordinary shares of the Company or by a subdivision or split-up of ordinary shares of the Company, or (ii) decreased by a combination of ordinary shares of the Company, then, following the record date fixed for the determination of holders of ordinary shares of the Company entitled to receive the benefits of such share dividend, subdivision, split-up, or combination, the Exercise Price shall be adjusted to a new amount equal to the product of (A) the Exercise Price in effect on such record date, and (B) the quotient obtained by dividing (x) the number of Warrant Shares into which this Warrant would be exercisable on such record date (without giving effect to the event referred to in the foregoing clause (i) or (ii)), by (y) the number of Warrant Shares which would be outstanding immediately after the event referred to in the foregoing clause (i) or (ii), if this Warrant had been exercised immediately prior to such record date.
(b) Adjustment to Warrant Shares. Upon each adjustment of the Exercise Price as provided in Section 2(a), the Holder shall thereafter be entitled to subscribe for and purchase, at the Exercise Price resulting from such adjustment, the number of Warrant Shares equal to the product of (i) the number of Warrant Shares into which this Warrant would be exercisable prior to such adjustment and (ii) the quotient obtained by dividing (A) the Exercise Price existing prior to such adjustment by (B) the new Exercise Price resulting from such adjustment
(c) Special Adjustment for Affiliate Financing. In the event the Company consummates an Affiliate Financing, the number of Warrant Shares into which this Warrant (together with each of the other warrants to purchase ordinary shares issued by the Company to Purchaser on or about the date hereof in connection with the License Agreement) could be exercisable will be proportionally increased by a number of ordinary shares such that the Purchasers percentage equity holding in the Company immediately following such increase (calculated on an as-converted and fully-diluted basis) shall equal sixty percent (60%) of the Purchasers percentage equity holdings in the Company as of immediately prior to such Affiliate Financing (calculated on an as-converted and fully-diluted basis), and the Exercise Price of the Warrant Shares in effect immediately before such issue will be proportionately decreased. Affiliate Financing shall mean any single equity financing after the Issue Date for the sole purpose of raising capital, whereby the Company issues and sells equity securities solely to an entity or entities that, directly or indirectly, controls, or is under common control with, the Company (Derivative Securities) and the Purchasers percentage equity holdings in the Company as of immediately following such Affiliate Financing (calculated on an as-converted and fully-diluted basis) is less than sixty percent (60%) of the Purchasers percentage equity holdings in the Company as of immediately prior to such Affiliate Financing (calculated on an as-converted and fully-diluted basis), but shall exclude in any case any of the following:
Ordinary shares or Derivative Securities of the Company issued by reason of a dividend, stock split, split-up or other distribution for which an adjustment is made pursuant to Section 2(a) above;
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Ordinary shares or Derivative Securities issued to employees or directors of, or consultants or advisors to, the Company or any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the Board;
Ordinary shares or Derivative Securities actually issued upon the exercise, conversion or exchange of Derivative Securities, in each case provided such issuance is pursuant to the terms of such Derivative Security;
Ordinary shares or Derivative Securities issued to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the Board;
Ordinary shares or Derivative Securities issued to suppliers or third-party service providers in connection with the provision of goods or services pursuant to transactions approved by the Board; and
Ordinary shares or Derivative Securities issued in connection with collaboration, license, development or other similar agreements or strategic partnerships approved by the Board.
(d) Right of Participation in a Qualified Financing. For so long as this Warrant is outstanding, the Purchaser shall have a right of first refusal to purchase its Pro Rata Share (as defined below) of any Qualified Financing after the Issue Date (the Right of Participation), as further set forth below.
The Purchasers Pro Rata Share for purposes of the Right of Participation is the ratio of (a) the number of ordinary shares (calculated on a fully-diluted and as-converted basis) held by the Purchaser to (b) the total number of ordinary shares (calculated on a fully-diluted and as-converted basis) then outstanding immediately prior to the consummation of the Qualified Financing giving rise to the Right of Participation.
Qualified Financing shall mean any bona fide equity financing of the Company after the Issue Date whereby the Company issues and sells equity securities of the Company (such securities, the Financing Securities) to third-party financial investors for the sole purpose of raising capital for general working capital purposes.
Procedures. In the event that the Company proposes to undertake a Qualified Financing, it shall give to the Purchaser written notice of its intention thereof (the Participation Notice), describing the material terms and conditions of such Qualified Financing, including the price of the Financing Securities. The Purchaser shall have ten (10) business days from the date of receipt of such Participation Notice to agree in writing to purchase its Pro Rata Share of such Financing Securities at the same price and upon the same terms and conditions as the other investors in the Qualified Financing, as specified in the Participation Notice, by giving written notice to the Company. If the Purchaser fails to agree in writing within such ten (10) business day period to purchase its full Pro Rata Share of Financing Securities, then the Purchaser shall be deemed to have irrevocably forfeited its Right of Participation with respect to such Qualified Financing.
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Section 3. Reclassification, Merger, Consolidation, Etc.
In case of any reclassification or change of the outstanding ordinary shares of the Company (other than as a result of a subdivision, combination or share dividend), or in case of any consolidation of the Company with, or merger of the Company into, another corporation or other business organization (other than a consolidation or merger in which the Company is the surviving entity) at any time during the Exercise Period, then the Company or its successor may make lawful and adequate provision to grant the Holder the right to purchase, upon exercise of this Warrant, the kind and amount of shares and other securities and property receivable upon such reclassification, reorganization, change, consolidation or merger by a holder of the number of Warrant Shares of the Company which might have been purchased by the Holder immediately prior to such reclassification, reorganization, change, consolidation or merger, at a total price not to exceed that payable upon the exercise of this Warrant, and, in any such case, appropriate provisions shall be made with respect to the rights and interest of the Holder such that the provisions hereof shall thereafter be applicable in relation to any shares and other securities and property thereafter deliverable upon exercise hereof.
Section 4. Rights of Shareholders.
Nothing contained herein shall be construed to confer upon the Holder, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of shares, reclassification of shares, change of par value or change of shares to no par value, consolidation, merger, conveyance, or otherwise) or to receive notice of meetings, or to receive dividends or subscription rights or otherwise until the Warrant shall have been exercised and the certificates representing the Warrant Shares shall have been issued, as provided herein.
Section 5. Share and Warrant Books.
The Company will not at any time, except upon dissolution, liquidation or winding up, close its share books or warrant books so as to result in preventing or delaying the exercise of any Warrant.
Section 6. Limitation of Liability.
No provisions hereof, in the absence of affirmative action by the Holder to purchase Warrant Shares hereunder, shall give rise to any liability of the Holder to pay the Exercise Price or as a shareholder of the Company (whether such liability is asserted by the Company or creditors of the Company).
Section 7. Transfer
This Warrant shall not be transferrable by the Holder to any third party without the prior written approval of the Company; provided, that the Holder may transfer this Warrant to any person or entity that directly or indirectly is controlled by or controls the Holder, in each case where the term control means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity through ownership of a majority of voting securities. Any Warrants issued upon the transfer of this Warrant shall be numbered and shall be registered in a Warrant Register as they are issued. The Company shall be entitled to treat the registered holder of any Warrant on the Warrant Register as the owner in fact thereof for all purposes and shall not be bound to recognize any equitable or other claim to, or interest in, such Warrant on the part of any other person, and shall not be liable for any registration of transfer of Warrants that are registered or to be registered in the name of a fiduciary or the nominee of a fiduciary unless made with the actual
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knowledge that a fiduciary or nominee is committing a breach of trust in requesting such registration or transfer, or with the knowledge of such facts that its participation therein amounts to bad faith. This Warrant shall be transferable only on the books of the Company upon delivery thereof duly endorsed by the Holder or by its duly authorized attorney or representative, or accompanied by proper evidence of succession, assignment, or authority to transfer. In all cases of transfer by an attorney, executor, administrator, guardian, or other legal representative, duly authenticated evidence of his or its authority shall be produced. Upon any registration of transfer, the Company shall deliver a new Warrant or Warrants to the person entitled thereto. Notwithstanding the foregoing, the Company shall have no obligation to cause Warrants to be transferred on its books to any person if, in the opinion of counsel to the Company, such transfer does not comply with the provisions of the securities laws, rules and regulations of the applicable jurisdictions.
Section 8. Investment Representations; Restrictions on Warrant Shares.
The Holder covenants and agrees that this Warrant is acquired for the account of the Holder and is not acquired with a view to, or for sale in connection with, any distribution thereof (or any portion thereof) and with no present intention (at any such time) of offering and distributing such securities (or any portion thereof).
Section 9. Loss, Destruction of Warrant Certificates.
Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any such loss, theft or destruction, upon receipt of indemnity and/or security satisfactory to the Company or, in the case of any such mutilation, upon surrender and cancellation of such Warrant, the Company will make and deliver, in lieu of such lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor and representing the right to purchase the same aggregate number of Warrant Shares.
Section 10. Amendments.
The terms of this Warrant may be amended, and the observance of any term herein may be waived, with the prior written consent of the Company and the Holder.
Section 11. Notices Generally.
All notices, deliveries and other communications given or made pursuant to the provisions hereof shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) two (2) business days after deposit with an internationally recognized overnight courier, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their address as set forth on the signature page, or to such e-mail address, facsimile number or address as subsequently modified by written notice to the other party.
Section 12. Successors and Assigns.
This Warrant shall bind and inure to the benefit of and be enforceable by the parties hereto and their respective permitted successors and assigns.
Section 13. Governing Law.
In all respects, including all matters of construction, validity and performance, this Warrant and the obligations arising hereunder shall be governed by, and construed and enforced in accordance with the laws of the Cayman Islands, without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction.
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Section 14. Dispute Resolution.
(a) Any dispute, controversy or claim (each, a Dispute) arising out of or relating to this Warrant, or the interpretation, breach, termination, validity or invalidity thereof, shall be settled by the parties amicably through good faith discussions upon the written request of any party. In the event the Dispute is not resolved thereby within a period of thirty (30) days after such request has been given, such Dispute shall be referred to and conclusively determined by arbitration upon the demand of any party to the dispute with notice (the Arbitration Notice) to the other party or parties.
(b) The Dispute shall be settled by arbitration in Hong Kong by the Hong Kong International Arbitration Centre (the HKIAC) in accordance with the Hong Kong International Arbitration Centre Administered Arbitration Rules (the HKIAC Rules) in force when the Arbitration Notice is submitted in accordance with the HKIAC Rules.
(c) The disputing parties may jointly select one (1) arbitrator, or agree that the Chairman of HKIAC shall select the arbitrator. In the absence of such agreement, there shall be three (3) arbitrators, the claimant to the Dispute, or in the case of multiple claimants, all such claimants acting collectively (the Claimant) shall select one (1) arbitrator and the respondent to the Dispute, or in the case of more than one respondent, the respondents acting collectively (the Respondent) shall select one (1) arbitrator. All selections shall be made within thirty (30) days after the selecting party gives or receives the demand for arbitration. Such arbitrators shall be freely selected, and neither the Claimant nor the Respondent shall be limited in their selection to any prescribed list. The Chairman of HKIAC shall select the third arbitrator who will act as chair of the arbitration board. If any arbitrator to be appointed by a party has not been appointed and consented to participate within thirty (30) days after the selection of the first arbitrator, the relevant appointment shall be made by the Chairman of HKIAC.
(d) The arbitral proceedings shall be conducted in English. To the extent that the HKIAC Rules are in conflict with the provisions of this Section 14, including the provisions concerning the appointment of the arbitrators, the provisions of this Section 14 shall prevail.
(e) Each party to the arbitration shall cooperate with each other party to the arbitration in making full disclosure of and providing complete access to all information and documents requested by such other party in connection with such arbitral proceedings, subject only to any confidentiality obligations binding on such party.
(f) The award of the arbitral tribunal shall be final and binding upon the parties thereto, and the prevailing party may apply to a court of competent jurisdiction for enforcement of such award.
(g) The arbitral tribunal shall decide any Dispute submitted by the parties to the arbitration strictly in accordance with the substantive laws of the Cayman Islands (without regard to principles of conflict of laws thereunder) and shall not apply any other substantive law.
(h) Any party to the Dispute shall be entitled to seek preliminary injunctive relief, if possible, from any court of competent jurisdiction pending the constitution of the arbitral tribunal.
(i) During the course of the arbitral tribunals adjudication of the Dispute, the terms and provisions of this Warrant shall continue to be performed except with respect to the part in dispute and under adjudication.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in its name by its duly authorized officer.
By: /s/ Konstantin Poukalov
Name: Konstantin Poukalov
Title: Director LianBio
c/o Ogier Global (Cayman) Limited
89 Nexus Way
Cayman Islands KY1-9009
Attention: Bing Li, Chief Executive Officer
With copies to:
Ropes & Gray LLP
36F Park Place
1601 Nanjing Road West
Shanghai, China 200040
Attention: Eric Wu
[Signature Page to Warrant 1]
AGREED AND ACCEPTED:
QED THERAPEUTICS, INC.
By: /s/ Neil Kumar
Name: Neil Kumar
75 Federal Street
San Francisco, CA 94107
[Signature Page to Warrant]
NOTICE OF EXERCISE
FORM OF EXCHANGE NOTICE