TETRAPHASE PHARMACEUTICALS, INC. Item 1.01 Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
On
The Company's Board of Directors (the "Board") has unanimously approved the
Merger and the Merger Agreement and recommended that the stockholders of the
Company accept the Offer and tender their shares of Common Stock pursuant to the
Offer. Under the Merger Agreement, the Parent is required to commence the Offer
as promptly as reasonably practicable, and in any event on or prior to
Pursuant to the terms of the Merger Agreement, as of immediately prior to the
effective time of the Merger (the "Effective Time"), by virtue of the Merger and
without any action on the part of the holders: (i) each outstanding share of
Common Stock of the Company, other than any shares owned by the Parent, the
Purchaser or the Company, or by any stockholders who are entitled to and who
properly exercise appraisal rights under
Under the Merger Agreement, the outstanding warrants of the Company shall each
be treated in accordance with their terms, except that, pursuant to the Support
Agreements and the Exchange Agreement described below: (i) each outstanding
common stock warrant issued by the Company in
The Purchaser's obligation to accept shares of Common Stock tendered in the Offer is subject to customary closing conditions, including: (a) that the number of shares of Company Common Stock validly tendered and not validly withdrawn, together with any shares of Common Stock beneficially owned by the Parent or any subsidiary of the Parent, equals at least one share more than 50% of all shares of Common Stock then outstanding (treating, for such purpose, Company RSUs and Company PRSUs as outstanding); (b) the absence of any injunction or legal restraint that has the effect of prohibiting the consummation of the Offer or making the Offer or the Merger illegal; (c) since the date of the Merger Agreement, there shall not have occurred any Company Material Adverse Effect; (d) compliance by the Company with its covenants under the Merger Agreement; (e) the accuracy of representations and warranties made by the Company in the Merger Agreement; (f) the absence of any pending legal proceeding in which a governmental body is a party challenging the Offer or the Merger; and (g) other customary conditions. The obligations of the Parent and the Purchaser to consummate the Offer and the Merger under the Merger Agreement are not subject to a financing condition.
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Following the completion of the Offer, subject to the absence of injunctions or other legal restraints preventing the consummation of the Merger, the Purchaser will merge with and into the Company, with the Company surviving as a wholly owned subsidiary of the Parent, pursuant to the procedure provided for under Section 251(h) of the Delaware General Corporation Law, without any additional stockholder approvals. The Merger will be effected as soon as practicable following the time of purchase by the Purchaser of shares of Common Stock validly tendered and not withdrawn in the Offer.
The Merger Agreement contains customary representations and warranties from both the Company, on the one hand, and the Parent and the Purchaser, on the other hand. It also contains customary covenants, including covenants providing for the Company to: (i) use commercially reasonable efforts to cause each of the Company and its subsidiaries to conduct its business and operations in the ordinary course and in accordance in all material respects with past practice; (ii) not to engage in specified types of transactions during such period; (iii) not to solicit proposals or, subject to certain exceptions, engage in discussions relating to alternative acquisition proposals or change the recommendation of the Board to the Company's stockholders regarding the Merger Agreement; and (iv) use commercially reasonable efforts to attempt to ensure that each of the Company and its subsidiaries preserves intact the material components of its current business organization and maintains its relations and goodwill with all material suppliers, material customers, material licensors and governmental entities.
The Merger Agreement contains customary termination rights for both the Parent
and the Purchaser, on the one hand, and the Company, on the other hand,
including, among others, for failure to consummate the Offer on or before
Item 1.02 Termination of a Material Definitive Agreement.
On
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Item 8.01 Other Events. Press Release
On
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
No. Description
2.1 Agreement and Plan of Merger by and among the Parent, the Purchaser
and the Company, dated June 24, 2020 .
10.1 Form of Contingent Value Rights Agreement, by and between the Parent
and the Rights Agent.
10.2 Form of Support Agreement, dated June 24, 2020 , by and among the
Parent, the Purchaser and the stockholder named therein.
10.3 Form of Exchange Agreement, dated June 24, 2020 , by and among the
Parent, the Purchaser and the holder named therein.
99.1 Press Release, dated June 24, 2020 Additional Information
The tender offer for the outstanding shares of the Company referenced in this
Current Report on Form 8-K has not yet commenced. This Current Report on Form
8-K is for informational purposes only and is neither an offer to purchase nor a
solicitation of an offer to sell any securities, nor is it a substitute for the
tender offer materials that the Parent and its subsidiary will file with the
In addition to the Offer to Purchase, the related Letter of Transmittal and
certain other tender offer documents, the Company and the Parent file annual,
quarterly and special reports, proxy statements and other information with the
Forward-Looking Statements
Any statements in this Form 8-K regarding the proposed transaction between the Parent and the Company, the expected timetable for completing the transaction, future financial and operating results, benefits of the transaction, future opportunities for the combined company and any other statements about the Company management's future expectations, beliefs, goals, plans or prospectus constitute forward-looking statements. Any statements that are not statements of historical fact (including statements containing "believes," "anticipates," "plans," "expects," "may," "will," "would," "intends," "estimates," and similar expressions), should also be considered to be forward-looking statements. There are a number of important factors that could cause actual results or events to differ materially from those indicated by such forward-looking statements, including the risk that the proposed Offer and Merger may not be completed in a timely manner, or at all; risks as to the percentage of the Company's stockholders tendering their shares in the Offer; the possibility that competing offers will be made; the failure to satisfy all of the closing
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conditions of the Offer and/or the Merger; the occurrence of any event, change
or other circumstance that could give rise to the termination of the Merger
Agreement, the Offer and/or the other proposed transactions; the effect of the
announcement or pendency of the Offer, Merger or other proposed transactions on
the Company's business, operating results, and relationships with customers,
suppliers, competitors and others; risks that the Offer, Merger or other
proposed transactions may disrupt the Company's current plans and business
operations; potential difficulties retaining employees as a result of the
proposed transactions; risks related to the diverting of management's attention
from the Company's ongoing business operations; the outcome of any legal
proceedings that may be instituted against the Company related to the Merger
Agreement, the Offer, the Merger or the other proposed transactions; risks
relating to product development and commercialization, demand for the Company's
products and limited number of customers; risks relating to the Company's
ability to successfully commercialize XERAVA; concerns with or threats of, or
the consequences of, pandemics, contagious diseases or health epidemics,
including COVID-19; risks associated with competition, and other commercial and
other risk factors discussed in the "Risk Factors" section of the Company's
Quarterly Report on Form 10-Q for the period ended
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