Item 1.01
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Entry Into a Material Definitive Agreement
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On January 17, 2017, Tetraphase
Pharmaceuticals, Inc. (the Company) entered into a Controlled Equity Offering
SM
Sales Agreement, dated January 17, 2017 (the Sales Agreement) with Cantor
Fitzgerald & Co., as agent (Cantor Fitzgerald), pursuant to which the Company may issue and sell shares of its common stock, $0.001 par value per share, having an aggregate offering price of up to $40,000,000 (the
Shares) from time to time through Cantor Fitzgerald (the Offering). Also on January 17, 2017, the Company filed a prospectus supplement with the Securities and Exchange Commission in connection with the Offering (the
Prospectus Supplement) under its existing Registration Statement on Form S-3 (File No 333-214500), which became effective on December 7, 2016 (the Registration Statement).
Upon delivery of a placement notice by the Company and subject to the terms and conditions of the Sales Agreement, Cantor Fitzgerald may sell
the Shares in accordance with the terms set forth in the placement notice and by methods deemed to be an at the market offering as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended (the Securities
Act), including sales made directly on or through The NASDAQ Global Select Market or on any other existing trading market for the Companys common stock. Subject to the terms of a placement notice, Cantor Fitzgerald may also sell the
Shares in negotiated transactions at market prices prevailing at the time of sale and/or any other method permitted by law, subject to the Companys prior written consent.
The Company or Cantor Fitzgerald may suspend or terminate the offering of Shares upon notice to the other party, subject to certain
conditions. Under the Sales Agreement, Cantor Fitzgerald has agreed to use commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal law, rules and regulations and the rules of NASDAQ to
sell the Shares in accordance with the terms of the applicable placement notice.
The Company has agreed to pay Cantor Fitzgerald
commissions for its services in acting as agent in the sale of the Shares in the amount equal to 3.0% of gross proceeds from the sale of the Shares pursuant to the Sales Agreement. The Company has also agreed to provide Cantor Fitzgerald with
certain customary indemnification and contribution rights.
A copy of the Sales Agreement is attached as Exhibit 1.1 hereto and is
incorporated herein by reference. The foregoing description of the material terms of the Sales Agreement does not purport to be complete and is qualified in its entirety by reference to such exhibit.
Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the Company, has issued a legal opinion relating to the Shares. A copy of such legal
opinion, including the consent included therein, is attached as Exhibit 5.1 hereto.
The Shares will be sold pursuant to the Registration
Statement, and offerings of the Shares will be made only by means of the Prospectus Supplement. This Current Report on Form 8-K shall not constitute an offer to sell or solicitation of an offer to buy these securities, nor shall there be any sale of
these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities law of such state or jurisdiction.