On January 2, 2020, BeiGene, Ltd. (the "Company") reported that it has issued 206,635,013 ordinary shares in the form of 15,895,001 American Depositary Shares ("ADSs"), representing approximately 20.5% of the Company’s then outstanding share capital, to Amgen Inc. ("Amgen") for aggregate gross proceeds of approximately $2.78 billion, or $13.45 per ordinary share, or $174.85 per ADS, pursuant to a Share Purchase Agreement dated October 31, 2019, as amended, by and between the Company and Amgen (the "Share Purchase Agreement") (Filing, 8-K, BeiGene, JAN 2, 2020, View Source [SID1234555637]).

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In order to account for periodic dilution from the issuance of shares under the Company’s equity incentive plans, on March 17, 2020, the Company and Amgen entered into an Amendment No. 2 (the "Second Amendment") to the Share Purchase Agreement. Pursuant to the Second Amendment, Amgen will have an option (the "Direct Purchase Option") to subscribe for additional shares (the "Additional Shares") in an amount necessary to enable it to increase (and subsequently maintain) its ownership at approximately 20.6% of the Company’s outstanding share capital. The Direct Purchase Option is exercisable on a monthly basis, but only if Amgen’s interest in the outstanding share capital of the Company at the monthly reference date is less than 20.4%. The aggregate number of Additional Shares shall not exceed 75,000,000 ordinary shares during the term of the Direct Purchase Option, as described further below. The purchase price for the Additional Shares will be the volume-weighted average price of the Company’s ADSs for the 90 days preceding the last trading day of the prior month.

The Second Amendment and the issuance of Additional Shares thereunder are subject to approval by a majority vote of the Company’s shareholders, excluding Amgen, pursuant to the listing rules of the Hong Kong Stock Exchange.

The exercise period of the Direct Purchase Option will commence on the first day of the month following shareholder approval and will terminate on the earliest of: (a) the date on which Amgen owns less than 20% of the outstanding share capital of the Company as a result of Amgen’s sale of shares; (b) at least 60-day advance written notice from either Amgen or the Company that such party wishes to terminate the Direct Purchase Option; or (c) the third anniversary of the date on which the exercise period of the Direct Purchase Option commences. The Direct Purchase Option has no vesting period.

The Additional Shares will be issued in a private placement in reliance upon the exemption from registration provided by Section 4(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.