Item 1.01
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Entry Into a Material Definitive Agreement.
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On July 7, 2017, Tetraphase
Pharmaceuticals, Inc. (the Company) entered into Amendment No. 1 (the Amendment) to its Controlled Equity Offering
SM
Sales Agreement, dated as of January 17, 2017
(the Sales Agreement and, as amended by the Amendment, the Amended Sales Agreement), with Cantor Fitzgerald & Co., as agent (Agent). The sole effect of the Amendment is to increase the maximum aggregate
offering price of shares of the Companys common stock, $0.001 par value per share, which the Company may issue and sell from time to time under the Amended Sales Agreement (the Offering) to up to $80,000,000 from $40,000,000. On
July 7, 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 Amended Sales Agreement, Agent 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, Agent 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 Agent may suspend or terminate the offering of Shares upon notice to the other
party, subject to certain conditions. Under the Amended Sales Agreement, Agent 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
Agent 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 Amended Sales Agreement. The Company has also agreed to provide Agent with
certain customary indemnification and contribution rights.
A copy of the Amendment is attached as Exhibit 1.1 hereto and is incorporated
herein by reference. A copy of the Sales Agreement is attached as Exhibit 1.2 hereto and is incorporated herein by reference. The foregoing description of the material terms of the Amended Sales Agreement, consisting of the Amendment and the Sales
Agreement, does not purport to be complete and is qualified in its entirety by reference to such exhibits.
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.