CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (“Agreement”) dated January 26, 2021 (the “Effective Date”) is made between BeyondSpring Pharmaceuticals, Inc., a
corporation organized under the laws of Delaware, having its principal place of business at 00 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (the “Company”) and Xxxxxxx Xxxxxxx, having a principal place of business at 000 Xxxx Xx, Xxxxx 000, Xxxxxxxxxx, XX 00000 (“Consultant”), for
the purpose of setting forth the exclusive terms and conditions by which the Company desires to acquire Consultant’s services on a temporary basis.
In consideration of the mutual obligations specified in this Agreement, the parties, intending to be legally bound hereby, agree to the following:
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Services:
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(a) The Company hereby retains Consultant, and Consultant hereby agrees to perform for the Company, certain services
assigned to Consultant by the Company and in the Company’s sole discretion, as set forth on Exhibit A hereto (collectively the “Services”). Consultant is responsible for providing any necessary equipment, tools, materials, and/or supplies to
perform the Services.
(b) Consultant agrees to keep the Company updated, promptly upon the Company’s request, of any progress, problems,
and/or developments of which Consultant is aware regarding the Services. The Company shall have the right to require such updates in writing from Consultant in a format specified by the Company or acceptable to the Company in its sole discretion.
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Consideration/Compensation:
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(a) In exchange for Consultant’s performance of the Services to be rendered to the Company hereunder,
Consultant shall be entitled to receive from the Company an annual grant of Options (as defined in the BeyondSpring Inc. 2017 Omnibus Plan, as may amended from time to time (the “Omnibus Plan”)) with a Black-Scholes values of $120,000 as of
January 1 of the relevant year of grant (each, an “Annual Option Grant”). Each Annual Option Grant shall be granted under the Omnibus Plan, shall be evidenced by an award agreement to be entered into between the Company and Consultant (each, an
“Award Agreement”) and shall be subject to the terms and conditions of the Omnibus Plan and the relevant Award Agreement in all respects. Each Award Agreement shall provide that the applicable Annual Option Grant shall have an exercise price per
share that is not less than the fair market value per share as of the grant date and shall vest in equal installments quarterly on the first day of each quarter of the applicable year of grant, subject to Consultant’s continued service through
such vesting date.
(b) Consultant shall not be entitled to receive any other compensation or any benefits from the Company in respect
of the Services. Except as otherwise required by law, the Company shall not withhold any sums or payments made to Consultant for social security or other federal, state or local tax liabilities or contributions, and all withholdings, liabilities,
and contributions shall be solely Consultant’s responsibility. Further, Consultant understands and agrees that the Services
are not covered under the unemployment compensation laws and are not intended to be covered by workers’ compensation laws.
(c) The Company and Consultant acknowledge and agree that Consultant also serves as a member of
the Board of Directors of the Company and is a party to that certain director agreement dated as of December 15, 2020, by and between the Company and Consultant (the “Director Agreement”). Compensation in respect of services as member of Board of
Directors of the Company is solely governed by the Director Agreement, and compensation in respect of the Services is governed solely by this Agreement.
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Confidential Information; Company Property:
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(a) Prior to or on the Effective Date, Consultant has executed the Company’s standard
Confidential Disclosure Agreement (the “Company CDA”). Consultant agrees that the Company CDA supersedes and replaces any prior confidentiality agreement between the parties. In the event that Consultant is an entity, or otherwise will cause
individuals in its employ or under its supervision to participate in the rendering of the Services, Consultant agrees to cause each such individual to execute the Company CDA. As used herein, the term “Confidential Information” shall have the meaning ascribed to it in the Company CDA.
(b) Consultant also agrees that during his/her consultancy with the Company that he/she shall not make, use or permit to be used any Company Property otherwise than for the benefit of the
Company. The term “Company Property” shall include all notes, emails, memoranda, reports, lists, records, drawings, sketches, designs, specifications, software programs, software code, data, pagers, documentation or other materials of any nature
and in any form, whether written, printed, electronic or in digital format or otherwise, relating to any matter within the scope of the business of the Company or concerning any of its dealings or affairs, and any other Company property in her
possession, custody or control. Consultant further agrees that he/she shall not, after the termination of her consultancy, use or permit others to use any such Company Property. Consultant acknowledges and agrees that all Company Property shall be
and remain the sole and exclusive property of the Company. Immediately upon the termination of Consultant’s consultancy, Consultant shall deliver all Company Property in his/her possession, and all copies thereof, to the Company.
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Ownership of Work Product:
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(a) Consultant agrees to promptly disclose to the Company any and all Work Product. “Work Product” includes without limitation any and all notes, drawings, designs,
technical data, know how, works of authorship, firmware, software, ideas, improvements, inventions, material, information, work or product conceived, created, written or first reduced to practice by Consultant either solely or jointly with others
in the performance of consulting services for the Company and/or resulting from use of Confidential Information by Consultant solely or jointly with others. Consultant agrees to assign and does hereby assign to the Company his/her entire right,
title and interest, including without limitation any copyright, patent, trade secret, trademark (including the good will associated therewith) or other intellectual property rights in and to the Work Product. All works of authorship, firmware,
software or other applicable Work Product shall be considered works for hire by Consultant for the Company and all Work Product shall be the Company’s sole
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and exclusive property. Consultant agrees to and shall provide the Company with all Work Product generated on the Company’s behalf.
(b) Consultant hereby grants to the Company under any and all intellectual property rights a non-exclusive,
irrevocable, royalty free, and worldwide license to use all notes, works of authorship, ideas, designs, firmware, software, technical data, ideas, research, reports, and other such inventions which are not Work Product, but which are owned by
Consultant and are necessary or desirable to use any Work Product delivered by Consultant to the Company (individually and collectively, “Background Material”) including, without limitation, the right to make, have made, sell, offer for sale,
rent, lease, import, copy, create derivative works, display, perform, and distribute the Background Material.
(c) Consultant also agrees, at the request and cost of the Company, to promptly sign, execute, make and do all such
deeds, documents, acts and things as the Company may reasonably require or desire to perfect the Company’s entire right, title, and interest in and to any Work Product. Consultant agrees that if the Company, after using reasonable commercial
efforts, is unable because of Consultant’s unavailability, or for any other reason, to secure the signature of an authorized agent of Consultant to apply for or to pursue any application for any United States or foreign patents, copyright or
trademark registrations covering the assignments to the Company, then Consultant hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Consultant’s agent and attorney in fact, to act for and in
Consultant’s behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyright, and trademark registrations thereon with the same legal force and
effect as if executed by an authorized agent of Consultant.
(d) Consultant warrants that he/she has good and marketable title to the Background Material and that he/she shall
not knowingly incorporate into any Work Product any material that would infringe any copyright, trade secret, trademark or other intellectual property rights of any person or entity. Consultant further warrants that the Background Material shall
be free and clear of all liens, claims, encumbrances or demands of third parties, including any claims by any such third parties of any right, title or interest in or to the Background Material arising out of any patent, trade secret, copyright
or other intellectual property right. Consultant shall indemnify, defend and hold harmless the Company and its customers from any and all liability, loss, cost, damage, judgment or expense (including reasonable attorney’s fees) resulting from or
arising in any way out of any such claims by any third parties, and/or which are based upon, or are the result of any breach of, the warranties contained in this Section 4.
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Noncompetition; Nonsolicitation:
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During the period of this Agreement, and for a period of one year thereafter, Consultant shall not (without the prior written consent of the Company) directly or indirectly, alone
or as a partner, joint venturer, consultant, contractor, lender, officer, director, employee, stockholder or investor of any entity: (i) engage in any business or activity in which is in direct conflict with Plinabulin (the “Field”); or (ii)
promote, develop, assist in the development or commercial activities of, contract or collaborate with, any business with respect to its activities in the Field. Further, during the period of this Agreement and for one year thereafter, Consultant
shall not, directly or indirectly, alone or as a partner, joint venturer, consultant, contractor, lender, officer,
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director, employee, stockholder or investor of any entity, (a) solicit or do business with any customer of the Company or any potential customer of the Company with whom Consultant
has had contact or about whom he/she has obtained Confidential Information in connection with activities which would constitute a violation of clause (i) above, or (b) recruit or solicit for hire any person who is or was an employee, agent,
representative or consultant of the Company at any time during the term of this Agreement (unless such individual has ceased to be employed or engaged by the Company for at least 90 days), or in any manner seek to solicit or induce any such person
to leave his/her employment with the Company, or assist in the recruitment or hiring of any such person; provided, however, that any general solicitation or advertising for any employment or consulting engagement not specifically directed at
employees of the Company shall not be a breach of the provisions of this Section 5.
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Indemnification/Release:
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(a) Consultant agrees to take all necessary precautions to prevent injury to any persons (including employees of the
Company) or damage to property (including the Company’s property) as a result of Consultant’s performance of the Services during the term of this Agreement, and shall indemnify, defend and hold harmless the Company, its officers, directors,
shareholders, employees, representatives and/or agents from any claim, liability, loss, cost, damage, judgment, settlement or expense (including attorney’s fees) resulting from or arising in any way out of injury (including death) to any person
or damage to property arising in any way out of any act, error, omission or negligence on the part of Consultant or any Consultant employee in the performance of any Services or obligations under this Agreement. Consultant further agrees to
indemnify, defend and hold harmless the Company, its officers, directors, shareholders, employees, representatives and/or agents from the costs to the Company of remedying any violation or breach of this Agreement by Consultant and/or from the
costs to the Company resulting from a breach by Consultant to a third party during the performance of the Services under this Agreement.
(b) Consultant agrees to indemnify and hold the Company harmless from and against any and all claims, losses,
demands, liabilities, damages, costs, or expenses (including, without limitation, attorney’s fees, back wages, liquidated damages, penalties or interest) resulting from any violation of any federal, state or local law, regulation, or ordinance by
Consultant, including, without limitation, Consultant’s failure to collect, withhold, or pay any and all federal or state taxes required to be withheld or paid by employers or employees, including, without limitation, any and all income tax,
social security, and FUTA taxes.
(c) In the event of any breach of this Agreement or the Company CDA by Consultant, the Company shall first notify
Consultant of the existence of such breach and provide Consultant thirty (30) days in which to remedy the breach.
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Termination:
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This Agreement shall be effective on the date hereof and shall continue for the term set forth on Exhibit A hereto, unless sooner
terminated by either party upon 30 days’ prior written notice. In the event of termination, Consultant shall, upon request, perform such work as may be requested to transfer work in process to the Company or to a party designated by the Company.
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| 8. |
Independent Contractor:
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(a) The Company and Consultant expressly agree and understand that Consultant is an independent contractor and
nothing in this Agreement nor the services rendered hereunder is meant, or shall be construed in any way or manner, to create between them a relationship of employer and employee, principal and agent, partners or any other relationship other than
that of independent parties contracting with each other solely for the purpose of carrying out the provisions of this Agreement. Consultant is not the agent of the Company and is not authorized and shall not have the power or authority to bind
the Company or incur any liability or obligation, or act on behalf of the Company. At no time shall Consultant represent that he/she is an agent of the Company, or that any of the views, advice, statements and/or information that may be provided
while performing the Services are those of the Company.
(b) While the Company is entitled to provide Consultant with general guidance to assist
Consultant in completing the scope of work to the Company’s satisfaction; Consultant is ultimately responsible for directing and controlling the performance of the task and the scope of work, in accordance with the terms and conditions of this
Agreement. Consultant shall use his/her best efforts, energy and skill in his/her own name and in such manner as he/she sees fit.
(c) Consultant acknowledges and agrees that Consultant shall not be entitled to any benefits
provided by the Company to its employees. In addition, Consultant shall have sole and exclusive responsibility for the payment of all federal, state, and local income taxes, for all employment and disability insurance, and for Social Security and
other similar taxes with respect to any compensation provided by the Company hereunder. CONSULTANT FURTHER AGREES THAT IF THE COMPANY PAYS OR BECOMES LIABLE FOR SUCH TAXES OR RELATED CIVIL PENALTIES OR INTEREST AS A RESULT OF CONSULTANT’S FAILURE
TO PAY TAXES OR REPORT INCOME, OR DUE TO THE COMPANY’S FAILURE TO WITHHOLD TAXES ON CONSULTANT’S INCOME, CONSULTANT SHALL INDEMNIFY AND HOLD THE COMPANY HARMLESS FOR ANY SUCH LIABILITY.
(d) Consultant shall assume and accept all responsibilities which are imposed on independent
contractors by any applicable statute, regulation, rule of law, or otherwise. In performing the Services, Consultant agrees to comply with all applicable laws, regulations, and guidelines, and the Company’s applicable standard policies
(including, but not, limited to, the Company’s Electronic Communications Policy) which have been previously communicated in writing to Consultant by the Company.
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Compliance with Laws. Consultant has complied with all federal, state, and local laws regarding business permits and licenses that may be required to carry out the Services to be performed under this
Agreement.
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General:
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(a) This Agreement does not create an obligation on the Company to continue to retain Consultant
beyond this Agreement’s termination.
(b) This Agreement may not be changed unless mutually agreed upon in writing by both Consultant
and by an authorized officer of the Company.
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(c) Sections 3, 4, 5, 6, 7, 8, and 9 shall survive the termination of this Agreement regardless of the manner of
such termination.
(d) Any waiver by the Company or Consultant of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach of such provision or any other provision hereof.
(e) Consultant and the Company hereby agree that each provision herein shall be treated as a separate and
independent clause, and the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. Moreover, if one or more of the provisions contained in this Agreement shall for any reason be held to be
excessively broad as to scope, activity, subject or otherwise so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate judicial body by limiting or reducing it or them, so as to be enforceable to the
maximum extent compatible with the applicable law as it shall then appear.
(f) The Company shall have the right to assign this Agreement to its successors and assigns, and this Agreement
shall inure to the benefit of and be enforceable by said successors or assigns. Consultant may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Company’s President, and this Agreement shall
be binding upon Consultant’s heirs, executors, administrators and legal representatives.
(g) This Agreement and all aspects of the relationship between the parties hereto shall be construed and enforced in
accordance with and governed by the internal laws of Delaware without regard to its conflict of laws and provisions. Consultant further agrees that any claims or legal actions by one party against the other arising out of the relationship between
the parties contemplated herein (whether or not arising under this Agreement) shall be commenced and maintained in any state or federal court located in Delaware, and Consultant hereby submits to the jurisdiction and venue of any such court.
(h) This Agreement and Exhibit A hereto set forth the complete, sole and entire agreement between the parties with
respect to the subject matter herein and supersede any and all other agreements, negotiations, discussions, proposals, or understandings, whether oral or written, previously entered into, discussed or considered by the parties.
(i) The language of all parts of this Agreement will in all cases be construed as a whole in accordance with its
fair meaning and not strictly for or against either party hereto.
(j) This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(k) All notices provided for in this Agreement shall be given in writing and shall be effective when either served
by hand delivery, electronic facsimile transmission, express overnight courier service, or by registered or certified mail, return receipt requested, addressed to the parties at their respective addresses as set forth in the preamble to this
Agreement, or to such other address or addresses as either party may later specify by written notice to the other.
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IN WITNESS WHEREOF, the parties hereto have executed this Consulting Agreement as of the Effective Date.
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BEYONDSPRING PHARMACEUTICALS, INC.
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CONSULTANT
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/s/ Xxx Xxxxx
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/s/ Xxxxxxx Xxxxxxx
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Name:
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Xxx Xxxxx, PhD
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Name:
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Xxxxxxx Xxxxxxx
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Title:
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CEO
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Title:
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Date:
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Date:
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2/22/21
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EXHIBIT A
Term:
The term of this Agreement becomes effective on the date hereof and will continue in effect for a period of one (1) year, provided however, in the event neither party gives notice of its election to
terminate this Agreement at least thirty (30) days prior to the end of such year (or any subsequent one (1) year term), this Agreement shall be extended automatically for an additional one (1) year. Notwithstanding the foregoing, either Consultant
or the Company may terminate this Agreement upon thirty (30) days’ notice any time following the date hereof.
Description of Services:
Consultant will make available consulting services to the Company with respect to the following, including regulatory support of Plinabulin: general consulting
services of a clinical, regulatory or commercial nature on Plinabulin and other pipeline programs.
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