Transaction Valuation*
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Amount of Filing Fee**
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$19,501,788.70
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$2,531.33
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*
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Estimated for purposes of calculating the amount of the filing fee only. Calculated by multiplying the 7,263,236 issued and outstanding shares of common stock, par value of $0.001 (“Shares”), of Tetraphase, Inc., a Delaware corporation (“Tetraphase”), by $2.685, the average of the high and low sales price per share of the common stock on June 25, 2020, as reported by Nasdaq.
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**
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The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for Fiscal Year 2020, issued August 23, 2019, by multiplying the transaction value by 0.0001298.
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Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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Amount Previously Paid: None
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Filing Party: Not applicable
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Form or Registration No.: Not applicable
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Date Filed: Not applicable
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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☒
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third-party tender offer subject to Rule 14d-1.
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issuer tender offer subject to Rule 13e-4.
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going-private transaction subject to Rule 13e-3.
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amendment to Schedule 13D under Rule 13d-2.
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Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
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Rule 13d-1(d) (Cross-Border Third-Party Tender Offer)
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ITEM 1.
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SUMMARY TERM SHEET.
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ITEM 2.
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SUBJECT COMPANY INFORMATION.
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ITEM 3.
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IDENTITY AND BACKGROUND OF FILING PERSON.
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ITEM 4.
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TERMS OF THE TRANSACTION.
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ITEM 5.
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PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
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ITEM 6.
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PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
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ITEM 7.
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SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
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ITEM 8.
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INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
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ITEM 9.
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PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED.
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ITEM 10.
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FINANCIAL STATEMENTS.
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ITEM 11.
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ADDITIONAL INFORMATION.
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ITEM 12.
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EXHIBITS.
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Index No.
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Offer to Purchase, dated June 29, 2020.
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Form of Letter of Transmittal.
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Form of Notice of Guaranteed Delivery.
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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Form of Summary Advertisement, published June 29, 2020 in the Wall Street Journal.
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(a)(5)(A)
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Letter to Stockholders of Tetraphase, dated June 29, 2020, from Larry Edwards, President and Chief Executive Officer of Tetraphase (incorporated herein by reference to Exhibit (a)(1)(H) to Schedule 14D-9 filed by Tetraphase on June 29, 2020).
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(b)
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Not applicable.
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Agreement and Plan of Merger, dated June 24, 2020, by and among Tetraphase, LJPC and Purchaser (incorporated herein by reference to Exhibit 2.1 to Form 8-K filed by Tetraphase on June 24, 2020).
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Confidentiality Agreement, dated May 8, 2020, by and between Tetraphase and LJPC.
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Form of Support Agreement, dated June 24, 2020, by and among LJPC, the Purchaser and the stockholder named therein (incorporated herein by reference to Exhibit 10.2 to Form 8-K filed by Tetraphase on June 24, 2020).
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Form of Contingent Value Rights Agreement, by and between LJPC and the Rights Agent (incorporated herein by reference to Exhibit 10.1 to Form 8-K filed by Tetraphase on June 24, 2020).
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Guarantee Agreement, dated June 24, 2020, by the Tang Capital Partners, LP in favor of Tetraphase.
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Index No.
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Form of Exchange Agreement, dated June 24, 2020, by and among LJPC, the Purchaser and the holder named therein (incorporated herein by reference to Exhibit 10.3 to Form 8-K filed by Tetraphase on June 24, 2020).
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(g)
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Not applicable.
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(h)
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Not applicable.
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*
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Filed herewith.
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ITEM 13.
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INFORMATION REQUIRED BY SCHEDULE 13E-3.
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TTP MERGER SUB, INC.
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By:
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/s/ Michael Hearne
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Name:
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Michael Hearne
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Title:
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Chief Financial Officer
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LA JOLLA PHARMACEUTICAL COMPANY
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By:
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/s/ Michael Hearne
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Name:
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Michael Hearne
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Title:
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Chief Financial Officer
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE
AFTER 11:59 P.M. EASTERN TIME ON JULY 27, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED. |
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Purchaser is offering to buy your securities. Purchaser has been organized in connection with this Offer and has not carried on
any activities other than entering into the Agreement and Plan of Merger, dated as of June 24, 2020 (together with any amendments or supplements thereto, the “Merger Agreement”), among Tetraphase,
La Jolla and Purchaser, and activities in connection with the Offer. See Section 9 - “Certain Information Concerning La Jolla and Purchaser.” La Jolla will
enter into a Contingent Value Rights Agreement (the “CVR Agreement”) with a rights agent agreeable to each of La Jolla and Tetraphase, governing the terms of the CVRs. Certain obligations of La
Jolla under the Merger Agreement and the CVR Agreement have been guaranteed by Tang Capital Partners, LP, a Delaware limited partnership (“TCP”), pursuant to a guarantee agreement, dated as of
June 24, 2020, subject to the terms and conditions set forth therein (the “Guarantee”).
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La Jolla is La Jolla Pharmaceutical Company. See Section 9 - “Certain Information Concerning La Jolla and Purchaser.”
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Purchaser is TTP Merger Sub, Inc. See Section 9 - “Certain Information Concerning La Jolla and Purchaser.”
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La Jolla has agreed pursuant to the Merger Agreement to cause Purchaser to, upon the terms and subject to the conditions in this
Offer to Purchase and the related Letter of Transmittal, accept and pay for Shares tendered and not validly withdrawn in the Offer.
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Purchaser is seeking to purchase all of the outstanding Shares of Tetraphase. See the Introduction and Section 1 - “Terms of the Offer.”
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Purchaser is offering to pay $2.00 per Share, to you in cash (subject to adjustment as described in Section 11 - “Summary of the Merger Agreement and Certain Other Agreements”), plus one non-transferable CVR per Share, in each case without interest, and subject to any applicable withholding taxes, upon the terms
and subject to the conditions contained in this Offer to Purchase and in the related Letter of Transmittal. Following the consummation of the Offer, holders of CVRs may receive, following December 31, 2021, a combination of $0.23, $0.42
and $0.83 per CVR if Milestone 1, Milestone 2 or Milestone 3 (each as defined below), respectively, are achieved. These figures assume the anticipated maximum number of CVRs will be issued. It is currently anticipated that up to an
aggregate of 10,794,652 CVRs will be issued, representing CVRs to be issued as part of the consideration for each of the issued and outstanding Shares, each outstanding Tetraphase restricted stock unit, each outstanding Tetraphase
performance-vested restricted stock unit and certain outstanding pre-funded warrants of Tetraphase. The maximum amount that may be paid upon achievement of any or all of the Milestones is $16.0 million. The Milestones relate to certain “Net Sales” milestones of Tetraphase’s XERAVA product; see Section 11 – “Purpose of the Offer and Plans for Tetraphase; Summary
of the Merger Agreement and Certain Other Agreements.”
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If your Shares are registered in your name and you tender your Shares, you will not be obligated to pay brokerage fees or
commissions or similar expenses. If you hold your Shares through a broker, dealer, commercial bank, trust company or other nominee and your broker, dealer, commercial bank, trust company or other nominee tenders your Shares on your
behalf, your broker, dealer, commercial bank, trust company or other nominee may charge a fee for doing so. You should consult your broker, dealer, commercial bank, trust company or other nominee to determine whether any charges will
apply.
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The CVR represents the contractual right to receive cash, without interest thereon, and less any applicable withholding taxes,
upon the achievement of certain specified milestones. At or prior to the Acceptance Time (as defined below), La Jolla will enter into a Contingent Value Rights Agreement (the “CVR Agreement”) with a
rights agent agreeable to each of La Jolla and Tetraphase, governing the terms of the CVRs. The maximum potential aggregate payments to the holders of all CVRs issuable under the Merger Agreement (which includes CVRs issuable to holders
of restricted stock units and performance-vested restricted stock units granted by Tetraphase pursuant to its equity plans (each such restricted stock unit, a “Tetraphase RSU” and each such
performance-vested restricted stock unit, a “Tetraphase PRSU”)) equals $16.0 million. Each payment is conditioned upon the achievement of the applicable milestones (each, a “Milestone” and, collectively, the “Milestones”) as follows:
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La Jolla will be obligated to pay an aggregate amount equal to $2.5 million upon the achievement of annual Net Sales (as defined
below) in the U.S. for XERAVA of at least $20.0 million during the calendar year 2021.
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La Jolla will be obligated to pay an aggregate amount equal to $4.5 million upon the achievement of annual Net Sales in the U.S.
for XERAVA of at least $35.0 million during any calendar year ending on or prior to December 31, 2024.
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La Jolla will be obligated to pay an aggregate amount equal to $9.0 million upon the achievement of annual Net Sales in the U.S.
for XERAVA of at least $55.0 million during any calendar year ending on or prior to December 31, 2024.
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More than one Milestone may be achieved in a given calendar year, and each Milestone may only be achieved once. Accordingly, the
aggregate payments to holders of CVRs pursuant to the CVR Agreement will not exceed $16.0 million. There can be no assurance that any of the Milestones will be achieved. If a Milestone is not achieved in the applicable timeframe, the
associated payment will not be payable to the holders of the CVRs. No interest will accrue or be payable in respect of any of the amounts that may become payable on the CVRs. The Milestones are independent of each other, and payment upon
achievement of any specific Milestone is not dependent upon achievement of any prior Milestone.
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Additionally, commencing upon the closing of the Merger and continuing until the earlier of December 31, 2024 or the achievement
of all milestones, La Jolla has agreed to, and has agreed to cause its affiliates and licensees to, use Commercially Reasonable Efforts (as defined in the CVR Agreement) to achieve the milestones. Without limiting the foregoing, La Jolla
has further agreed that neither it nor any of its affiliates shall act in bad faith for the purpose of avoiding achievement of any milestone or the payment of any milestone amount.
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It is currently anticipated that up to an aggregate of 10,794,652 CVRs will be issued, representing CVRs to be issued as part of
the consideration for each of the issued and outstanding Shares, each outstanding Tetraphase restricted stock unit, each outstanding Tetraphase performance-vested restricted stock unit and certain outstanding pre-funded warrants of
Tetraphase.
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Yes. If none of the Milestones are achieved, no payment will become payable to holders of the CVRs. It is possible that none of
the Milestones will be achieved, in which case you will receive only the Cash Amount for your Shares and no payments with respect to your CVRs. It is also possible that only one or two of the Milestones will be achieved, in which case you
will receive only the Cash Amount for your Shares and the cash payments with respect to only those Milestones that have been achieved. It is not possible to predict whether a payment will or will not be payable with respect to the CVRs,
or the amounts that would be paid if any payment is made.
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The CVRs will not be transferable except: (i) upon death by will or intestacy; (ii) by instrument to an inter vivos or testamentary trust in which the CVRs are to be passed to beneficiaries upon the death of the trustee; (iii) pursuant to a court order; (iv) by operation of law (including a consolidation or merger) or
without consideration in connection with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other entity; (v) in the case of CVRs held in book-entry or other similar nominee form,
from a nominee to a beneficial owner (and, if applicable, through an intermediary), in each case as allowable by the Depository Trust Company (“DTC”); or (v) to La Jolla or any of its affiliates
without consideration.
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In addition to the terms and conditions described above, the CVRs will not have any voting or dividend rights and will not
represent any equity or ownership in La Jolla, Tetraphase or Purchaser. No interest will accrue or be payable in respect of any of the amounts that may become payable on the CVRs.
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Purchaser is making the Offer because Purchaser and La Jolla wish to acquire Tetraphase. See Section 1 – “Terms of the Offer” and Section 11 – “Purpose of the Offer and Plans for Tetraphase; Summary of the Merger Agreement and Certain
Other Agreements.”
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The Offer is subject to, among others, the following conditions:
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there having been validly tendered and not validly withdrawn Shares that, considered together with all other Shares (if any)
beneficially owned by La Jolla and its subsidiaries, represent at least one Share more than 50% of the total number of Shares outstanding (treating, for these purposes the shares underlying the Tetraphase RSUs and Tetraphase PRSUs as
outstanding) on the date the Offer expires (the “Minimum Condition”). For purposes of determining whether the Minimum Condition has been satisfied, Shares tendered in the Offer pursuant to Notice of
Guaranteed Delivery that have not yet been “received” (as such term is defined under Delaware law) will be excluded;
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there not having been enacted, issued, promulgated, enforced or entered by any governmental entity of competent jurisdiction any
order, executive order, temporary restraining order, stay, decree, judgment or injunction (preliminary or permanent) or statute, rule or regulation which has the effect of prohibiting the consummation of the Offer;
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the absence of, since June 24, 2020, the date of the Merger Agreement, any Material Adverse Effect (as defined below); and
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the Merger Agreement not having been validly terminated in accordance with its terms.
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For purposes of determining whether the Minimum Condition is met, holders of approximately 20% of the outstanding voting power of
Tetraphase have entered into Support Agreements (as defined below) and have agreed, among other things, subject to certain exceptions, to tender their Shares.
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The Offer is subject to other conditions in addition to those set forth above. A more detailed discussion of the conditions to
consummation of the Offer is contained in the Introduction, Section 1 – “Terms of the Offer” and Section 13 – “Conditions of
the Offer.”
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Yes. Tetraphase, La Jolla and Purchaser have entered into the Merger Agreement. The Merger Agreement provides, among other things,
for the terms and conditions of the Offer and, following consummation of the Offer, the Merger. See Section 11 – “Purpose of the Offer and Plans for Tetraphase;
Summary of the Merger Agreement and Certain Other Agreements.” Additionally, certain obligations of La Jolla under the Merger Agreement and the CVR Agreement have been guaranteed by TCP pursuant to a guarantee agreement, dated as
of June 24, 2020, subject to the terms and conditions set forth therein.
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Yes. In connection with the execution of the Merger Agreement, Armistice Capital Master Fund Ltd. And certain other holders of
Shares (each a “Supporting Stockholder”) have entered into a Tender and Support Agreement, dated as of June 24, 2020, with La Jolla and Purchaser (the “Support Agreements”). Subject to the terms and conditions of the Support Agreements, each of the Supporting Stockholders agreed, among other things, subject to certain exceptions, to tender its Shares
(including any warrants to purchase Shares), pursuant to the Offer and, subject to certain exceptions, not to otherwise transfer any of the Shares that are subject to the Support Agreements.
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The Shares of the Supporting Stockholders subject to Support Agreements represent in the aggregate approximately 20% of the
outstanding voting power of Tetraphase as of June 24, 2020 (assuming no exercise of outstanding equity awards). The Supporting Stockholders agreed, among other things, subject to certain exceptions, to tender their Shares.
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See Section 11 – “Purpose of the Offer and Plans for Tetraphase; Summary of the Merger Agreement and Certain Other Agreements” for a description of the Support Agreements.
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Yes. La Jolla expects to fund the purchase of the Shares in the Offer, and the payment of any amounts payable with respect to the
CVRs, on the payment dates applicable thereto, with La Jolla’s available cash on hand. As of March 31, 2020, La Jolla had $77.2 million of cash and no debt. Further, in connection with the execution of the Merger Agreement, TCP provided a
guarantee, pursuant to which it guarantees the payment obligations of La Jolla and the Purchaser under the Merger Agreement and the CVR Agreement, subject to the terms and conditions set forth in the Guarantee. The Offer is not
conditioned upon entering into any financing arrangements. See Section 11 – “Purpose of the Offer and Plans for Tetraphase; Summary of the Merger Agreement and
Certain Other Agreements” and Section 12 – “Source and Amount of Funds.”
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The funds to pay for all Shares accepted for payment in the Offer, the consideration in connection with the Merger and any
payments required to be made in respect of the CVRs upon the occurrence of any of the Milestones are expected to come from La Jolla’s available cash and cash equivalents on hand. As of March 31, 2020, La Jolla had $77.2 million of cash
and no debt. In connection with the execution of the Merger Agreement, TCP provided a guarantee, pursuant to which it guarantees the payment obligations of La Jolla and the Purchaser under the Merger Agreement and the CVR Agreement,
subject to the terms and conditions set forth in the Guarantee. Accordingly, La Jolla expects to have sufficient funds to be used to provide Purchaser with the funds necessary to purchase the Shares in the Offer and, as such, its
financial condition is not relevant to a decision to tender in the Offer.
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Purchaser has been organized solely in connection with the Merger Agreement and this Offer and has not carried on any activities
other than in connection with the Merger Agreement and this Offer. Because the form of payment consists solely of cash that will be provided by La Jolla, the payment of which is guaranteed by TCP, the Offer is not subject to any financing
conditions, and the Offer is for all outstanding Shares of Tetraphase, and because of the lack of any relevant historical information concerning Purchaser, Purchaser’s financial condition is not relevant to your decision to tender in the
Offer. See Section 12 – “Source and Amount of Funds.”
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You will have until one minute after 11:59 p.m. Eastern Time on July 27, 2020, to tender your Shares in the Offer, unless
Purchaser extends the Offer, in which event you will have until the expiration date of the Offer as so extended. If you cannot deliver everything that is required in order to make a valid tender by that time, you may be able to use a
guaranteed delivery procedure, which is described in Section 3 – “Procedures for Tendering Shares.” See also Section 1 – “Terms of the Offer.”
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Yes, the Offer can be extended. We have agreed in the Merger Agreement, subject to our rights to terminate the Merger Agreement in
accordance with its terms, if on any then-scheduled expiration date of the Offer any Offer Condition has not been satisfied or any of the other conditions to the Offer (set forth in Section 13 – “Conditions
of the Offer”) have not been satisfied or waived by Purchaser, (i) Purchaser may, in its discretion, or (ii) at the request of Tetraphase, Purchaser shall, and La Jolla shall cause Purchaser to, extend the Offer for periods of up
to 10 Business Days per extension to permit such Offer Condition to be satisfied, but not beyond the earlier of the valid termination of the Merger Agreement in accordance with its terms and August 18, 2020 (the “End Date”).
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If Purchaser extends the Offer, we will inform Broadridge Corporate Issuer Solutions, Inc., the depositary and paying agent for
this Offer (the “Depositary and Paying Agent”), of that fact and will issue a press release giving the new expiration date no later than 9:00 a.m. Eastern Time on the next business day after the day
on which the Offer was previously scheduled to expire. See Section 1 – “Terms of the Offer.”
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If you hold your Shares directly as the registered owner, you can: (i) tender your Shares in the Offer by delivering the
certificates representing your Shares, together with a completed Letter of Transmittal and any other documents required by the Letter of Transmittal, to the Depositary and Paying Agent; or (ii) tender your Shares by following the
procedure for book-entry set forth in Section 3 – “Procedures for Tendering Shares,” not later than the expiration of the Offer. If you are unable to deliver
any required document or instrument to the Depositary and Paying Agent by the expiration of the Offer, you may gain some extra time by having a broker, a bank or other fiduciary that is an eligible guarantor institution guarantee that the
missing items will be received by the Depositary and Paying Agent by using the enclosed Notice of Guaranteed Delivery. For the tender to be valid, however, the Depositary and Paying Agent must receive the missing items within two (2)
trading days after the date of execution of such Notice of Guaranteed Delivery. See Section 3 – “Procedures for Tendering Shares.” The Letter of Transmittal
is enclosed with this Offer to Purchase.
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If you hold your Shares in street name (i.e., through a broker, dealer, commercial bank,
trust company or other nominee), you must contact the institution that holds your Shares and give instructions that your Shares be tendered. You should contact the institution that holds your Shares for more details.
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In all cases, payment for tendered Shares will be made only after timely receipt by the Depositary and Paying Agent of
certificates for such Shares (or of a confirmation of a book-entry transfer of such Shares as described in Section 3 – “Procedures for Tendering Shares”) and a properly completed and duly executed
Letter of Transmittal and any other required documents for such Shares. See also Section 2 – “Acceptance for Payment and Payment for Shares.”
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You may withdraw previously tendered Shares any time prior to one minute after 11:59 p.m. Eastern Time on July 27, 2020, unless
Purchaser extends the Offer. See Section 4 – “Withdrawal Rights.”
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In addition, pursuant to Section 14(d)(5) of the Securities Exchange Act of 1934, as amended, Shares may be withdrawn at any time
after August 28, 2020, which is the 60th day after the date of the commencement of the Offer, unless such Shares have already been accepted for payment by Purchaser pursuant to the Offer.
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To withdraw previously tendered Shares, you must deliver a written or facsimile notice of withdrawal with the required information
to the Depositary and Paying Agent while you still have the right to withdraw. If you tendered Shares by giving instructions to a broker, dealer, commercial bank, trust company or other nominee, you must instruct the broker, dealer,
commercial bank, trust company or other nominee to arrange for the withdrawal of your Shares. See Section 4 – “Withdrawal Rights.”
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Tetraphase’s board of directors has unanimously recommended that you accept the Offer. Tetraphase’s full statement on the Offer is
set forth in its Solicitation/Recommendation Statement on Schedule 14D-9, which it has filed with the U.S. Securities and Exchange Commission (the “SEC”) concurrently with the filing of our Tender
Offer Statement on Schedule TO dated June 29, 2020. See also the Introduction.
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If we accept Shares for payment pursuant to the Offer, the Minimum Condition will have been satisfied and we will hold a
sufficient number of Shares to ensure any requisite adoption of the Merger Agreement by Tetraphase stockholders under the General Corporation Law of the State of Delaware (the “DGCL”) to complete
the Merger. If the Merger occurs, Tetraphase will become a wholly owned subsidiary of La Jolla and each issued and then outstanding Share (other than any Shares held by or in the treasury of Tetraphase, or owned by La Jolla, Purchaser or
any of La Jolla’s other subsidiaries and
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Because the Merger will be governed by Section 251(h) of the DGCL, no stockholder vote will be required to consummate the Merger.
As required by Section 251(h) of the DGCL, the Merger Agreement provides that the Merger shall be effected as soon as practicable following the consummation of the Offer. See Section 11 – “Purpose of the
Offer and Plans for Tetraphase; Summary of the Merger Agreement and Certain Other Agreements.”
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No. Immediately following consummation of the Offer and satisfaction or waiver (to the extent permitted by applicable law) of the
conditions to the Merger, we expect to complete the Merger pursuant to applicable provisions of the DGCL, after which the Surviving Corporation will be a wholly owned subsidiary of La Jolla and the Shares will no longer be publicly
traded. See Section 7 – “Possible Effects of the Offer on the Market for the Shares; Nasdaq Listing; Exchange Act Registration and Margin Regulations.”
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If you decide not to tender your Shares in the Offer and the Merger occurs as described above, you will receive in the Merger the
right to receive the Offer Price as if you had tendered your Shares in the Offer.
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If you decide not to tender your Shares in the Offer and the Merger does not occur, and Purchaser purchases Shares which have been
tendered, you will remain a stockholder of Tetraphase, but there may be so few remaining stockholders and publicly held Shares that the Shares will no longer be eligible to be traded through Nasdaq or any other securities market, there
may not be a public trading market for the Shares, and Tetraphase may cease making filings with the SEC or otherwise cease being required to comply with the SEC rules relating to publicly held companies. Subject to limited conditions, if
we purchase Shares in the Offer, we are obligated under the Merger Agreement to cause the Merger to occur. See Section 7 – “Possible Effects of the Offer on the Market for the Shares; Nasdaq Listing; Exchange Act Registration and Margin Regulations.”
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Following the Offer, the Shares may no longer constitute “margin securities” for purposes of the margin regulations of the Federal
Reserve Board, in which case your Shares may no longer be used as collateral for loans made by brokers. Section 7 – “Possible Effects of the Offer on the Market for the
Shares; Nasdaq Listing; Exchange Act Registration and Margin Regulations.”
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On June 19, 2020, the last Nasdaq trading day before Tetraphase announced that Purchaser and La Jolla’s final offer could
reasonably be expected to constitute a “Superior Offer” under the Melinta Merger Agreement, the last reported closing price per Share reported on Nasdaq was $2.63. See Section 6 – “Price Range of Shares; Dividends.”
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On June 26, 2020, the last full trading day before we commenced the Offer, the last reported closing price per Share reported on
Nasdaq was $2.60. See Section 6 – “Price Range of Shares; Dividends.”
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If the conditions to the Offer as set forth in the Introduction and Section 13 – “Conditions of
the Offer” are satisfied or waived and Purchaser consummates the Offer and accepts your Shares for payment, we will pay you a dollar amount equal to the number of Shares you tendered
multiplied by $2.00 in cash (subject to adjustment as described in Section 11 - “Summary of the Merger Agreement and Certain Other Agreements”), plus one CVR
per Share, in each case without interest and less any applicable withholding taxes, promptly following the time at which Purchaser accepts for payment Shares tendered in the Offer (and in any event within three (3) business days). See
Section 1 -
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The Offer is being made for all outstanding Shares, but not for options to purchase Shares granted under Tetraphase’s equity
plans. If you wish to tender Shares underlying options, you must first exercise your options (to the extent exercisable) in accordance with their terms in sufficient time to tender the Shares received into the Offer.
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At the Effective Time, each Tetraphase Option that is outstanding and unexercised, whether or not vested, will be cancelled.
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At the Effective Time, each then outstanding Tetraphase RSU and Tetraphase PRSU will vest in full and be cancelled, and the holder
thereof shall be entitled to receive both: (i) a cash payment equal to the product of (a) the total number of shares of Tetraphase Common Stock underlying the Tetraphase RSU and Tetraphase PRSU and (b) $2.00 (subject to adjustment as
described in Section 11 - “Summary of the Merger Agreement and Certain Other Agreements”); and (ii) a CVR with respect to each Share underlying such Tetraphase RSU and Tetraphase PRSU.
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Tetraphase has terminated the Tetraphase 2014 Employee Stock Purchase Plan (the “ESPP”),
and any payroll deductions accumulated through the date of such ESPP termination, have been returned to the plan participants and with no Shares being purchased under the ESPP after the date thereof.
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•
|
The receipt of cash and CVRs in exchange for Shares pursuant to the Offer or the Merger will be a taxable transaction for U.S.
federal income tax purposes. The amount of gain or loss a holder recognizes, and the timing and character of such gain or loss, depend on the U.S. federal income tax treatment of the CVRs, with respect to which there is uncertainty. We
urge you to consult your own tax advisor as to the particular tax consequences to you of the Offer and the Merger (including the application and effect of any state, local or non-U.S. income and other tax laws). See Section 5 - “Certain U.S. Federal Income Tax Consequences of the Offer and the Merger” for a more detailed discussion of certain U.S. federal income tax consequences of the Offer and the Merger.
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•
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No appraisal rights are available to the holders of Shares in connection with the Offer. However, if the Offer is successful and
the Merger is consummated, stockholders of Tetraphase who: (i) did not tender their Shares in the Offer (or who had tendered but subsequently validly withdrawn such tender, and not otherwise waived their appraisal rights); (ii) otherwise
comply with the applicable requirements and procedures of Section 262 of the DGCL; and (iii) do not thereafter withdraw their demand for appraisal of such Shares or otherwise lose their appraisal rights, in each case in accordance with
the DGCL, will be entitled to demand appraisal of their Shares and receive in lieu of the consideration payable in the Offer a cash payment equal to the “fair value” of their Shares, as determined by the Delaware Court of
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•
|
The “fair value” of the Shares as determined by the Delaware Court of Chancery could be based upon considerations other than, or
in addition to, the price paid in the Offer and the Merger and the market value of such Shares. Stockholders should recognize that the value determined in an appraisal proceeding of the Delaware Court of Chancery could be higher or lower
than, or the same as, the Offer Price and that an investment banking opinion as to the fairness, from a financial point of view, of the consideration payable in a sale transaction, such as the Offer and the Merger, is not an opinion as
to, and does not otherwise address, fair value under the DGCL. Moreover, Parent and Tetraphase may argue in an appraisal proceeding that, for purposes of such proceeding, the “fair value” of such Shares is less than the Offer Price.
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•
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Any stockholder who desires to exercise his, her or its appraisal rights should review carefully
Section 262 of the DGCL and is urged to consult his, her or its legal advisor before electing or attempting to exercise such rights.
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•
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The foregoing summary of the rights of dissenting stockholders under the DGCL does not purport to be a statement of the procedures
to be followed by stockholders desiring to exercise any appraisal rights under Delaware law. The preservation and exercise of appraisal rights require strict and timely adherence to the applicable provisions of Delaware law which will be
set forth in their entirety in the notice of merger. The foregoing discussion is not a complete statement of law pertaining to appraisal rights under Delaware law and is qualified in its entirety by reference to Delaware law, including
without limitation, Section 262 of the DGCL, a copy of which is included as Annex II to the Schedule 14D-9.
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•
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If you tender your Shares into the Offer, you will not be entitled to exercise appraisal rights with respect to your Shares but,
instead, subject to the conditions to the Offer, you will receive the Offer Price for your Shares.
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•
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You can call Broadridge Corporate Issuer Solutions, Inc., the Information Agent, toll-free at (855) 793-5068 or email them at
shareholder@Broadridge.com. See the back cover of this Offer to Purchase.
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1.
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there shall have been validly tendered and not validly withdrawn Shares that, considered together with all other Shares (if any)
beneficially owned by La Jolla and its subsidiaries, represent at least one Share more than 50% of the total number of Shares outstanding (treating, for these purposes the shares underlying the restricted stock units and
performance-vested restricted stock unit granted by Tetraphase pursuant to its equity plans as outstanding) on the date the Offer expires (the “Minimum Condition”).
For purposes of determining whether the Minimum Condition has been satisfied, Shares tendered in the Offer pursuant to Notice of Guaranteed Delivery that have not yet been “received” (as such term is defined under Delaware law) will be
excluded;
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2.
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there not having been enacted, issued, promulgated, enforced or entered by any governmental entity of competent jurisdiction any
order, executive order, temporary restraining order, stay, decree, judgment or injunction (preliminary or permanent) or statute, rule or regulation which has the effect of prohibiting the consummation of the Offer;
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3.
|
the absence of, since June 24, 2020, the date of the Merger Agreement, any Material Adverse Effect (as defined below); and
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4.
|
the Merger Agreement not having been validly terminated in accordance with its terms.
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Terms of the Offer.
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(1)
|
reduce the Offer Price;
|
(2)
|
increase the Offer Price by an increment of less than $0.05 per Share;
|
(3)
|
change the form of consideration payable in the Offer (other than increasing the Offer Price as expressly contemplated by the
Merger Agreement);
|
(4)
|
reduce the number of Shares sought to be purchased in the Offer;
|
(5)
|
waive, amend or change the Minimum Condition or the condition requiring the Merger Agreement to have not been validly terminated
in accordance with its terms;
|
(6)
|
add to the Offer Conditions;
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(7)
|
extend the expiration of the Offer except as provided in the Merger Agreement;
|
(8)
|
provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”); or
|
(9)
|
modify any the Offer Conditions or other terms of the Offer in any manner that adversely affects the holders of Shares or that
would reasonably be expected to prevent or materially delay or impair the consummation of the Offer.
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Acceptance for Payment and Payment for Shares.
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Procedures for Tendering Shares.
|
•
|
such tender is made by or through an Eligible Institution;
|
•
|
a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form provided by Purchaser, is received
by the Depositary and Paying Agent (as provided below) prior to the Expiration Date; and
|
•
|
the certificates for all tendered Shares, in proper form for transfer (or a Book-Entry Confirmation with respect to all such
Shares), together with a properly completed and duly executed Letter of Transmittal, with any required signature guarantees (or, in the case of a book-entry transfer, an Agent’s Message in lieu of the Letter of Transmittal), and any other
required documents, are received by the Depositary and Paying Agent within two (2) trading days after the date of execution of such Notice of Guaranteed Delivery. A “trading day” is any day on which Nasdaq is open for business.
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Withdrawal Rights.
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Certain U.S. Federal Income Tax Consequences of the Offer and the Merger.
|
•
|
the gain is effectively connected with a U.S. trade or business of such Non-U.S. Holder (and, if an applicable income tax treaty
so provides, is also attributable to a permanent establishment maintained by such Non-U.S. Holder in the U.S.), in which case the Non-U.S. Holder generally will be taxed in the same manner as a U.S. Holder (as described above under “U.S. Holders”), except that if the Non-U.S. Holder is a foreign corporation, an additional branch profits tax may apply at a rate of 30% (or a lower applicable treaty rate); or
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•
|
the Non-U.S. Holder is a nonresident alien individual who is present in the U.S. for 183 days or more in the taxable year of the
closing of the Offer or the Effective Time, as the case may be, and certain other conditions are met, in which case the Non-U.S. Holder may be subject to a 30% U.S. federal income tax (or a tax at a reduced rate under an applicable income
tax treaty) on such gain (net of certain U.S. source losses).
|
Price Range of Shares; Dividends.
|
Fiscal Year Ended December 31, 2018
|
| |
High
|
| |
Low
|
First Quarter
|
| |
$138.00
|
| |
$41.00
|
Second Quarter
|
| |
89.80
|
| |
59.20
|
Third Quarter
|
| |
81.00
|
| |
53.40
|
Fourth Quarter
|
| |
55.80
|
| |
20.20
|
Fiscal Year Ended December 31, 2019
|
| |
High
|
| |
Low
|
First Quarter
|
| |
$ 33.40
|
| |
$21.80
|
Second Quarter
|
| |
27.40
|
| |
9.20
|
Third Quarter
|
| |
10.60
|
| |
4.15
|
Fourth Quarter
|
| |
5.68
|
| |
1.99
|
Current Fiscal Year
|
| |
High
|
| |
Low
|
First Quarter
|
| |
$ 3.86
|
| |
$ 0.56
|
Second Quarter (through June 26, 2020)
|
| |
3.50
|
| |
0.90
|
Possible Effects of the Offer on the Market for the Shares; Nasdaq Listing; Exchange Act Registration and
Margin Regulations.
|
Certain Information Concerning Tetraphase.
|
Certain Information Concerning La Jolla and Purchaser.
|
Background of the Offer; Contacts with Tetraphase.
|
Purpose of the Offer and Plans for Tetraphase; Summary of the Merger Agreement and Certain Other Agreements.
|
•
|
reduce the Offer Price;
|
•
|
increase the Offer Price by an increment of less than $0.05 per Share;
|
•
|
change the form of consideration payable in the Offer (other than increasing the Offer Price as expressly contemplated by the
Merger Agreement);
|
•
|
reduce the number of Shares sought to be purchased in the Offer;
|
•
|
waive, amend or change the Minimum Condition or the condition requiring the Merger Agreement to have not been validly terminated
in accordance with its terms;
|
•
|
add to the Offer Conditions;
|
•
|
extend the expiration of the Offer except as provided in the Merger Agreement;
|
•
|
provide any “subsequent offering period” (or extension thereof) within the meaning of Rule 14d-11 under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”); or
|
•
|
modify any Offer Condition or any term of the Offer set forth in the Merger Agreement in a manner adverse to the holders of Shares
or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the consummation of the Offer or prevent, materially delay or impair the ability of La Jolla or Purchaser to consummate the
Offer, the Merger or the other Contemplated Transactions.
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•
|
if, as of the then-scheduled Expiration Date, any Offer Condition is not satisfied (unless such condition is waivable by Purchaser
or La Jolla and has been waived), Purchaser may, in its discretion (and without the consent of Tetraphase or any other person), extend the Offer for additional periods of up to ten (10) business days per extension, to permit such Offer
Condition to be satisfied; and
|
•
|
if, as of the then-scheduled Expiration Date, any Offer Condition is not satisfied (unless such condition is waivable by Purchaser
or La Jolla and has been waived), at the request of Tetraphase, Purchaser shall, and La Jolla shall cause Purchaser to, extend the Offer for additional periods specified by Tetraphase of up to ten (10) business days per extension (or such
other period as the parties may agree), to permit such Offer Condition to be satisfied.
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(i)
|
there has not been issued by any governmental body of competent jurisdiction and remaining in effect any temporary restraining
order, preliminary or permanent injunction or other order, decree or ruling restraining, enjoining, or otherwise preventing the consummation of the Merger, and no legal requirement has been enacted or deemed applicable to the Merger that
makes illegal the consummation of the Merger; and
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(ii)
|
Purchaser or La Jolla must have accepted for payment all Shares validly tendered pursuant to the Offer and not validly withdrawn.
|
(i)
|
Tetraphase has agreed to, and to cause its subsidiaries to, and to direct their representatives, as of the date of the Merger
Agreement, to immediately cease any solicitation, discussions or negotiations with any persons that may be ongoing as of the date of the Merger Agreement with respect to an Acquisition Proposal (as defined below); and
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(ii)
|
Tetraphase has agreed not to, and to cause its subsidiaries and their representatives not to, (a) directly or indirectly, solicit,
initiate or knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (b) engage in, continue or otherwise
participate in any discussions or negotiations regarding, or furnish to any other person any non-public information in connection with an Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an
Acquisition Proposal; or (c) adopt any resolution for the purpose of exempting any person (other than Parent and its Subsidiaries) from the restriction on “business combinations” or any similar provision contained in applicable
Anti-Takeover Law or Tetraphase’s organizational or other governing documents.
|
(x)
|
furnish, pursuant to an Acceptable Confidentiality Agreement, information (including non-public information) regarding Tetraphase
and its subsidiaries to the person or groups of persons who have made such Acquisition Proposal (provided that Tetraphase will as promptly as practicable provide any such information to La Jolla to the extent access to such information
was not previously provided to La Jolla or its representatives); and
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(y)
|
engage in, continue or otherwise participate in discussions or negotiations (including the solicitation of revised Acquisition
Proposals) (and waive such Person’s noncompliance with provisions of any “standstill” agreement to the extent (but only to the extent) necessary to permit such discussions) with the person or group of persons making such Acquisition
Proposal.
|
(i)
|
withhold, withdraw, qualify or modify in a manner adverse to La Jolla, or resolve to or publicly propose to withhold, withdraw,
qualify, or modify in a manner adverse to La Jolla, the Tetraphase Board Recommendation;
|
(ii)
|
remove the Tetraphase Board Recommendation from or fail to include the Tetraphase Board Recommendation in the Schedule 14D-9; or
|
(iii)
|
approve, recommend or declare advisable, or publicly propose to approve, recommend or declare advisable, any Acquisition Proposal
(any action described in the foregoing paragraphs (i) through (iii) is referred to as a “Tetraphase Adverse Change Recommendation”).
|
(i)
|
the Tetraphase Board determines in good faith, after consultation with Tetraphase’s outside legal counsel and independent
financial advisors, that the failure to take such action could reasonably be expected to be inconsistent with the fiduciary duties of the Tetraphase Board to the Tetraphase stockholders under applicable legal requirements;
|
(ii)
|
Tetraphase shall have given La Jolla prior written notice of its intention to consider making a Company Adverse Change in
Recommendation or terminate the Merger Agreement pursuant to its terms at least four business days prior to making any such Company Adverse Change in Recommendation or termination (which determination notice is referred to herein as a “Determination Notice”), which Determination notice will not in and of itself constitute a Company Adverse Change in Recommendation or a termination of the Merger Agreement; and
|
(iii)
|
(a) Tetraphase shall have made available to La Jolla the identity of the offeror, a summary of the material terms and conditions
of the Acquisition Proposal and copies of all written materials and other documents required by the Merger Agreement; (b) Tetraphase shall have given La Jolla the four business days after the Determination Notice to propose revisions to
the terms of the Merger Agreement or make other proposals and shall have made available its representatives to negotiate with La Jolla with respect to such proposed revisions or other proposal, if any (provided, that La Jolla may revise
such offer or proposal in response to any revisions to a Superior Offer); (c) after considering any such revised proposal from La Jolla, including whether such proposal was a written, binding and irrevocable offer, and the results of any
such negotiations and giving effect to the proposals made by La Jolla, if any, after consultation with outside legal counsel and its independent financial advisors, the Tetraphase Board shall have determined in good faith, that such
Acquisition Proposal is a Superior Offer and that the failure to make Tetraphase Adverse Change in Recommendation and/or terminate the Merger Agreement pursuant to its terms could reasonably be expected to be inconsistent with the
fiduciary duties of the Tetraphase Board to the Tetraphase stockholders under applicable legal requirements; and (d) if Tetraphase intends to terminate the Merger Agreement to enter into a binding written definitive acquisition agreement
providing for the consummation of the transaction constituting such Superior Offer, Tetraphase: (i) has not materially breached the requirements of the nonsolicitation or Tetraphase recommendation provisions of the Merger Agreement
described above; (ii) the Tetraphase Board shall have authorized Tetraphase to enter into a binding written definitive acquisition agreement providing for the consummation of the transaction constituting such Superior Offer; and
(iii) substantially concurrently with such termination, Tetraphase pays a $2,040,000 termination fee.
|
(i)
|
the Tetraphase Board determines in good faith, after consultation with Tetraphase’s outside legal counsel, that the failure to
take such action could reasonably be expected to be inconsistent with the fiduciary duties of the Tetraphase Board to the Tetraphase stockholders under applicable legal requirements;
|
(ii)
|
Tetraphase shall be given La Jolla a Determination Notice at least four business days prior to making any such Company Adverse
Change in Recommendation; and
|
(iii)
|
(a) Tetraphase shall have specified the Change in Circumstance in reasonable detail including a summary of the material facts and
circumstances involved in such Change in Circumstance; (b) Tetraphase shall have given La Jolla the four business days after the Determination Notice to propose revisions to the terms of the Merger Agreement or make other proposals and
shall have made available its representatives to negotiate with La Jolla with respect to such proposed revisions or other proposal, if any, such that the applicable Change in Circumstance would no longer necessitate a Company Adverse
Change in Recommendation under the Merger Agreement; and (c) after considering
|
(i)
|
was neither known to, nor was reasonably foreseeable by, the Tetraphase Board on or prior to the date of the Merger Agreement; and
(ii) does not relate to an Acquisition Proposal.
|
(i)
|
by mutual written consent of La Jolla and Tetraphase;
|
(ii)
|
by either La Jolla or Tetraphase if a governmental body or court of competent jurisdiction has issued an order, injunction, decree
or ruling, or taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the acceptance of payment for Shares pursuant to the Offer or the Merger or making the consummation of the Offer or the
Merger illegal, which order, decree, ruling or other action is final and nonappealable; provided that this termination right will not be available to any party whose material breach of the Merger Agreement has caused or resulted in such
final and nonappealable order, injunction, decree, ruling or other action;
|
(iii)
|
by either La Jolla or Tetraphase, if the Purchaser has not accepted for purchase an Shares, or the Merger Agreement has terminated
according to its terms, prior to midnight, Eastern Time on August 18, 2020 (the “End Date”); provided, that this termination right will not be available to any party whose willful and material
breach of covenants in the Merger Agreement has caused or resulted in the Offer not being consummated by such date (such termination, an “End Date Termination”);
|
(iv)
|
by La Jolla prior to Purchaser’s acceptance of Shares for purchase if: (a) the Tetraphase Board has effected a Tetraphase Adverse
Change Recommendation; (b) the Tetraphase board shall have adopted, approved, recommended, submitted to stockholders, declared advisable, executed or entered into (or resolved, determined or proposed to adopt, approve, recommend, submit
to stockholders, declare advisable, execute or enter into) any alternative acquisition agreement (other than an Acceptable Confidentiality Agreement); (c) following the public disclosure of an Acquisition Proposal (other than
|
(v)
|
by Tetraphase prior to Purchaser’s acceptance of Shares for purchase, in order to, substantially concurrent with such termination,
enter into a binding written definitive acquisition agreement providing for the consummation of a transaction constituting a Superior Offer, which right may be exercised if, and only if Tetraphase has not materially breached its
non-solicit obligations with respect to the no solicitation and company recommendation provisions under the Merger Agreement, the Tetraphase Board has authorized Tetraphase to enter into such agreement, and Tetraphase pays the applicable
termination fee to La Jolla substantially concurrently with such termination (a “Superior Offer Termination”);
|
(vi)
|
by La Jolla (so long as neither La Jolla nor Purchaser is in material breach of any representation, warranty, covenant or
obligation under the Merger Agreement) if: (a) Tetraphase’s representations or warranties related to its corporate organization, good standing, authority to enter the Merger Agreement, the Merger’s eligibility under Section 251(h) of the
DGCL, or fees owed to any broker, finder or investment banker are not true in all material respects; or (b) Tetraphase has not complied with its covenants or obligations contained in the Merger Agreement in all material respects;
provided, however, that for purposes of clauses “(a)” and “(b)” above, if an inaccuracy in any of Tetraphase’s representations and warranties or a breach of a covenant or obligation by Tetraphase is capable of being cured by the End Date,
then La Jolla may not terminate the Merger Agreement on account of such inaccuracy or breach unless such inaccuracy or breach shall remain uncured for a period of 30 days commencing on the date that La Jolla gives Tetraphase notice of
such inaccuracy or breach;
|
(vii)
|
by Tetraphase (so long as Tetraphase is not in material breach of any representation, warranty, covenant or obligation under the
Merger Agreement), if La Jolla or Purchaser has breached any of their respective representations or warranties or has failed to perform any of their respective covenants or obligations, if such breach or failure would: (a) reasonably be
expected to have a material and adverse effect on the ability of La Jolla and Purchaser to consummate the Transactions prior to the End Date (except for any effects resulting from acts of terrorism, war, weather conditions, viruses or
pandemics); or (b) prevent, delay or impair La Jolla or Purchaser from consummating the Offer and the Merger, and such breach or failure could not be cured by La Jolla or Purchaser, as applicable, by the End Date, or if capable of being
cured, is not cured within thirty (30) days after receiving written notice from Tetraphase of such breach or failure to perform; or
|
(viii)
|
by Tetraphase: (a) if the Purchaser shall have failed to commence (within the meaning of Rule 14d-2 under the Exchange Act) the
Offer within three business days of the execution of the Merger Agreement; provided that Tetraphase is not then in material breach of its obligation to supply the information concerning Tetraphase required to be filed in connection with
the Offer; or (b) if the Purchaser shall have failed to irrevocably accept for purchase all Shares validly tendered (and not validly withdrawn) within two (2) Business Days of the expiration of the Offer (as it may be extended in
accordance with the terms of the Merger Agreement) and as of such expiration, all of the Offer Conditions have been satisfied or waived.
|
(i)
|
Tetraphase terminates the Merger Agreement pursuant to a Superior Offer Termination;
|
(ii)
|
La Jolla terminates the Merger Agreement pursuant to an Adverse Recommendation Termination; or
|
(iii)
|
La Jolla or Tetraphase terminates the Merger Agreement pursuant to clause (iii) or clause (iv) above or by La Jolla terminates the
Merger Agreement pursuant to clause (vii) above and: (a) any person shall have publicly disclosed an Acquisition Proposal after the date of the Merger Agreement and prior to such termination (unless withdrawn prior to such termination);
and (b) within 12 months of such termination Tetraphase shall have consummated an Acquisition Proposal or shall have entered into a definitive agreement with respect to any Acquisition Proposal that is thereafter consummated (provided
that for purposes of this clause (b) the references to “15%” in the definition of “Acquisition Transaction” shall be deemed to be references to “50%”).
|
•
|
establish a record date for, declare, accrue, set aside, pay any dividend or make any other distribution in respect of any shares
of its capital stock (including the Shares);
|
•
|
sell, issue, grant, deliver, pledge, transfer, encumber or authorize the sale, issuance, grant, delivery, pledge, transfer or
encumbrance of: (a) any capital stock, equity interest or other security; (b) any option, call, warrant, restricted securities, restricted stock unit or right to acquire any capital stock, voting securities, equity interest or other
security; or (c) any instrument convertible into, exchangeable for or settled in any capital stock, voting securities, equity interest or other security (except that Tetraphase may issue Shares as required to be issued upon the exercise
of Tetraphase Options);
|
•
|
amend or waive any of Tetraphase’s material rights under, or accelerate the payment or vesting of compensation or benefits under,
any provision of any employee plan;
|
•
|
repurchase, redeem or otherwise reacquire any of the Shares, or any rights, warrants or options to acquire any of the Shares;
|
•
|
amend, terminate or grant any waiver under any standstill agreements (except as set forth in the Merger Agreement);
|
•
|
amend or permit the adoption of any amendment to its certificate of incorporation or bylaws or other charter or organizational
documents;
|
•
|
form any subsidiary, or acquire any equity interest in any other entity;
|
•
|
effect or become a party to, or adopt a plan or agreement of complete or partial liquidation or dissolution, merger,
consolidation, restructuring, recapitalization or other reorganization or any share exchange, reclassification of shares, stock split, reverse stock split, division or subdivision of shares, consolidation of shares or similar transaction;
|
•
|
make any capital expenditure, except that Tetraphase may make or authorize any capital expenditures provided for in the budget
made available to La Jolla prior to the date of the Merger Agreement or that, when added to all other capital expenditures made on behalf of all of the Acquired Companies since the date of the Merger Agreement but not provided for in
Tetraphase’s budget made available to La Jolla, do not exceed $50,000 in the aggregate;
|
•
|
enter into or become bound by, or permit any of the assets owned or used by it to become bound by, any material contract or amend,
terminate, or waive any material right or remedy under, any material contract, other than termination thereof upon the expiration of any such contract in accordance with its terms or if permitted by the terms of such contract, upon a
material breach thereof by the counterparty thereto;
|
•
|
acquire, lease or license any right or other asset from any other Person or sell or otherwise dispose of, or lease or license, any
right or other asset to any other Person (except in each case for assets: (a) acquired, leased, licensed or disposed of by Tetraphase in the ordinary course of business consistent in all material respects with past practice; or (b) that
are immaterial to the business of the Acquired Companies, taken as a whole);
|
•
|
make any pledge of any of its material assets or permit any of its material assets to become subject to any Encumbrances, except
for certain permitted Encumbrances and Encumbrances that do not materially detract from the value of such assets or that do not materially impair the operations of any of the Acquired Companies (taken as a whole);
|
•
|
lend money to any person (other than intercompany indebtedness and routine travel and business expense advances made to directors
or employees, in each case in the ordinary course of business), or, except in the ordinary course of business consistent in all material respects with past practice, incur or guarantee any indebtedness;
|
•
|
establish, adopt, enter into any new, amend, terminate or take any action to accelerate rights or payments under, or exercise
discretion with respect to performance under, any Company Employee Plan or Company Employee Agreement (except entering into customary releases with departing employees in accordance with the personnel plan agreed by the parties prior to
the date of the Merger Agreement), pay any bonus or make any profit-sharing or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation (including equity-based compensation,
whether payable in stock, cash or other property), any other similar payment (including severance, change of control or termination payments) or remuneration payable to, any of its directors or any Company Associate (except that
Tetraphase: (a) may amend Tetraphase Employee Plans to the extent required by applicable Legal Requirements or the Merger Agreement; and (b) may make payments and provide such benefits in accordance with Company Employee Agreements and
Company Employee Plans existing on the date of the Merger Agreement);
|
•
|
hire any employee;
|
•
|
except as required by applicable legal requirements: (a) make any material change to any accounting method, principle or practice
or accounting period used for tax purposes; (b) make, change or revoke
|
•
|
commence any legal proceeding, other than: (a) in the ordinary course of business consistent with past practice involving only
claims for monetary damages of not more than $200,000 in the aggregate; (b) in such cases where Tetraphase reasonably determines in good faith that the failure to commence suit could result in a material impairment of a valuable aspect of
its business; or (c) in connection with the Transactions or a breach of the Merger Agreement;
|
•
|
settle, release, waive or compromise any legal proceeding or other claim (or threatened legal proceeding or other claim), other
than any settlement, release, waiver or compromise that results: (a) solely in monetary obligation involving payment by the Acquired Companies of the amount specifically reserved in accordance with GAAP with respect to such Legal
Proceedings on Tetraphase Audited Balance Sheet; (b) solely in monetary obligations of not more than $50,000 in the aggregate; or (c) pursuant to the Merger Agreement;
|
•
|
enter into any contract covering any employee, or make any payment to any employee, that, considered individually or considered
collectively with any other such contracts or payments, will, or would reasonably be expected to, be characterized as a “parachute payment” within the meaning of Section 280G(b)(2) of the Code in connection with the Contemplated
Transactions;
|
•
|
recognize, or enter into, any collective bargaining agreement or any other contract or other agreement with any labor
organization, except as otherwise required by applicable Legal Requirements and after advance notice to La Jolla; or
|
•
|
agree or commit to take any of the foregoing actions.
|
•
|
corporate matters, such as due organization, organizational documents, good standing, qualification, power and authority;
|
•
|
capitalization;
|
•
|
SEC filings and financial statements;
|
•
|
disclosure controls and internal controls over financial reporting;
|
•
|
absence of certain changes since Tetraphase’s financial statements for the period ending December 31, 2019;
|
•
|
absence of a Material Adverse Effect (as defined below) from December 31, 2019 through the date of the Merger Agreement;
|
•
|
title to assets;
|
•
|
real property;
|
•
|
intellectual property;
|
•
|
material contracts;
|
•
|
absence of undisclosed liabilities;
|
•
|
compliance with legal requirements;
|
•
|
regulatory matters;
|
•
|
compliance with anti-corruption and anti-bribery laws;
|
•
|
permits and licenses;
|
•
|
tax matters;
|
•
|
employees and employee benefit plans, including the Employee Retirement Income Security Act of 1974, as amended, and certain
related matters;
|
•
|
environmental matters;
|
•
|
insurance;
|
•
|
affiliate transactions;
|
•
|
absence of litigation;
|
•
|
government contracts;
|
•
|
authority relative to the Merger Agreement;
|
•
|
Delaware takeover statute;
|
•
|
required consents and approvals, and no violations of organizational documents, contracts or applicable law as a result of the
Offer or Merger;
|
•
|
opinions of its financial advisor;
|
•
|
brokers’ fees and expenses;
|
•
|
accuracy of disclosures included or incorporated by reference in filings related to the Offer; and
|
•
|
non-reliance on certain communications with Parent and Purchaser.
|
(i)
|
conditions generally affecting the industry in which any Tetraphase Company participates or the U.S. or global economy as a whole,
to the extent that such conditions do not have a materially disproportionate impact on the Acquired Companies taken as a whole as compared to other industry participants;
|
(ii)
|
general conditions in the financial markets, and any changes therein, and any changes arising out of acts of terrorism, war,
weather conditions, viruses or pandemics or other force majeure events, to the extent that such conditions do not have a materially disproportionate impact on the Acquired Companies, taken as a whole, as compared to other industry
participants;
|
(iii)
|
changes in the trading price or trading volume of Tetraphase Common Stock, or the suspension of trading in or delisting of
Tetraphase’s securities on the Nasdaq Global Select Market (it being understood, however, that except as otherwise provided in this sentence, any effect giving rise to or contributing to such changes in the trading price or trading volume
of Tetraphase Common Stock may give rise to a Company Material Adverse Effect and may be taken into account in determining whether a Company Material Adverse Effect has occurred or could or would occur);
|
(iv)
|
changes in GAAP (or any interpretations of GAAP) or Legal Requirements applicable to Tetraphase or any of its Subsidiaries;
|
(v)
|
the failure to meet public estimates or forecasts of revenues, earnings of other financial metrics, in and of itself, or the
failure to meet internal projections, forecasts or budgets of revenues, earnings or other financial metrics, in and of itself (it being understood, however, that, except as otherwise provided in this sentence, any effect giving rise to or
contributing to any such failure may give rise to a Company Material Adverse Effect and may be taken into account in determining whether a Company Material Adverse Effect has occurred or could or would occur);
|
(vi)
|
any stockholder litigation or other claims arising from or relating to the AcelRx Merger Agreement,
|
(vii)
|
resulting or arising out of the execution, announcement or performance of the Merger Agreement or any of the Transactions,
including the loss of employees, suppliers or customers (including customer orders or contracts), or resulting or arising out of the execution, announcement, performance or termination of the AcelRx Merger Agreement, the Melinta Merger
Agreement or the respective transactions contemplated thereby; or
|
(viii)
|
the taking of any action expressly required to be taken pursuant to the Merger Agreement or the taking of any action requested by
Parent to be taken pursuant to the terms of the Merger Agreement to the extent taken in accordance with such request.
|
•
|
corporate matters, such as due organization, good standing (with respect to jurisdictions that recognize such concept), power and
authority;
|
•
|
authority relative to the Merger Agreement and the CVR Agreement;
|
•
|
ownership of securities of Tetraphase;
|
•
|
required consents and approvals, and no violations of laws, governance documents or agreements;
|
•
|
accuracy of information supplied for purposes of the Offer documents and the Schedule 14D-9;
|
•
|
independent investigation regarding Tetraphase;
|
•
|
non-reliance on any representations or warranties regarding the subject matter of the Merger Agreement, express or implied, except
for Tetraphase’s representations and warranties under the Merger Agreement; and
|
•
|
the formation and activities of Purchaser.
|
•
|
the first achievement of annual Net Sales of at least $20.0 million during the Calendar Year 2021 (“Milestone 1”);
|
•
|
the first achievement of annual Net Sales of at least $35.0 million during any Calendar Year ending on or prior to December 31,
2024 (“Milestone 2”); and
|
•
|
the first achievement of annual Net Sales of at least $55.0 million during any calendar year ending on or prior to December 31,
2024 (“Milestone 3,” and together with Milestone 1 and Milestone 2, the “Milestones”).
|
(i)
|
customary trade, cash and quantity discounts given to customers;
|
(ii)
|
rebates, credits and allowances given by reason of rejections returns, damaged or defective product or recalls;
|
(iii)
|
government-mandated rebates, credits and adjustments paid or deducted;
|
(iv)
|
customary price adjustments, allowances, credits, chargeback payments, discounts, rebates, free of charge concessions, fees and
reimbursements granted or made to managed care organizations, group purchasing organizations or other buying groups, pharmacy benefit management companies, health maintenance organizations and any other providers of health insurance
coverage, health care organizations or other health care institutions (including hospitals), health care administrators, patient assistance or other similar programs, or to federal state/provincial, local and other governments, including
their agencies;
|
(v)
|
reasonable and customary freight, shipping, insurance and other transportation expenses, if borne by the applicable Selling Party
without reimbursement from any third party;
|
(vi)
|
amounts written off as uncollectable debt; provided that the amount of any uncollectable debt deducted pursuant to this exception
and actually collected in a subsequent Calendar Quarter shall be included in Net Sales for such subsequent Calendar Quarter; and
|
(vii)
|
sales, value-added, excise taxes, tariffs and duties, and other taxes and government charges directly related to the sale,
delivery or use of XERAVA (but not including taxes assessed against the net income derived from such sale).
|
(i)
|
if there is a Change of Control (as defined in the CVR Agreement) of La Jolla, then TCP will be automatically released from its
CVR Guaranteed Obligations at the closing of such Change of Control as long as the counterparty or counterparties to the Change of Control assume, and are capable of assuming, all of the CVR Guaranteed Obligations;
|
(ii)
|
If La Jolla’s market capitalization averages, over any 30 consecutive trading day period following the consummation of the Merger,
more than $100,000,000, then TCP will be automatically released from the CVR Guaranteed Obligations as of the last day of such 30-day period; or
|
(iii)
|
if more than 20% of the outstanding voting equity of La Jolla is sold to one or more third parties in a transaction that is not a
Change of Control, then TCP will be automatically released from the CVR Guaranteed Obligations to the extent that the counterparty or counterparties to the transaction assume, and are capable of assuming, the CVR Guaranteed Obligations.
|
Source and Amount of Funds.
|
Conditions of the Offer.
|
a.
|
there shall have been validly tendered and not validly withdrawn Shares that, considered together with all other Shares (if any)
beneficially owned by La Jolla and its affiliates, represent at least one Share more than 50% of the total number of Shares outstanding at the time prior to the expiration of the Offer; provided, however, that for purposes of determining
whether this condition has been satisfied, the parties shall exclude Shares tendered in the Offer pursuant to Notice of Guaranteed Delivery that have not yet been “received” (as such term is defined in Section 251(h)(6)(f) of the DGCL);
|
b.
|
there shall not have been issued by any governmental body of competent jurisdiction any judgment, temporary restraining order,
preliminary or permanent injunction or other order, decree or ruling restraining, enjoining or otherwise preventing the acquisition of or payment for Shares pursuant to the Offer or the consummation of the Offer or the Merger, nor shall
any legal requirement have been promulgated, enacted, issued or deemed applicable to the Offer or the Merger by any governmental body that prohibits or makes illegal the acquisition of or payment for Shares pursuant to the Offer or the
consummation of the Merger;
|
c.
|
since the date of the Merger Agreement, there has not occurred any change, circumstance, condition, development, effect, event,
occurrence or state of facts which, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect (as defined below);
|
d.
|
Tetraphase shall have complied with or performed, in all material respects, its obligations, covenants and agreements under the
Merger Agreement it is required to comply with or perform;
|
e.
|
the representations and warranties of Tetraphase related to its corporate organization, good standing, authority to enter the
Merger Agreement, the Merger’s eligibility under Section 251(h) of the DGCL, or fees owed to any broker, finder or investment banker shall be true in all material respects as if made on and as of the expiration of the Offer (except to the
extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period);
|
f.
|
the representations of Tetraphase related to its capitalization set forth in the first sentence of Section 2.3(a), in Section
2.3(c) and Section 2.3(f) shall be accurate in all respects as of the expiration of the Offer as though made on and as of the expiration of the Offer, except to the extent the failures of such representations to be true and correct in all
respects individually or in the aggregate would not reasonably be expected to result in an increase in the aggregate value of the consideration payable by Parent in connection with the Merger of more than $325,000 in the aggregate, as
compared to what such aggregate amount would have been if such representations and warranties had been true and correct in all respects;
|
g.
|
Section 3.6(b) of the Merger Agreement shall be true and correct in all respects and as of the Offer Acceptance Time as if made at
and as of the Offer Acceptance Time;
|
h.
|
the representations and warranties of Tetraphase set forth in the Merger Agreement (other than those referred to in clauses (e)
through (g) above) shall be true and correct (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) as of the
expiration of the Offer as if made on and as of such time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period), except where the failure of such
representations and warranties constitutes a Material Adverse Effect;
|
i.
|
La Jolla and Purchaser shall have received a certificate executed on behalf of Tetraphase by an executive officer confirming that
the conditions set forth in paragraphs (d) through (h) above have been satisfied;
|
j.
|
As of the expiration of the offer, Tetraphase Net Cash (as determined in accordance with Section 1.14 of the Merger Agreement, and
more fully explained in Section “Merger Agreement” above) is equal to or greater than zero;
|
k.
|
the Merger Agreement has not been terminated in accordance with its terms; and
|
l.
|
there shall not be pending any legal proceeding in which a governmental body is a party that: (i) seeks to restrain, prohibit,
rescind or unwind the Offer or the Merger;(ii) seeks to prohibit or limit in any material respect La Jolla’s ability to vote, transfer, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of
the Surviving Corporation; (iii) relates to the Offer or the Merger and that would reasonably be expected to materially and adversely affect the right or ability of La Jolla to own any of the material assets or materially limit the
operation of the business of Tetraphase, taken as a whole; (iv) seeks to compel Tetraphase, La Jolla or any subsidiary of La Jolla to dispose of or hold separate any material assets or material business as a result of the Offer or the
Merger; or (v) relates to the Offer or the Merger and seeks to impose (or that would reasonably be expected to result in the imposition of) any criminal sanctions or criminal liability on La Jolla or Tetraphase.
|
Dividends and Distributions.
|
Certain Legal Matters; Regulatory Approvals.
|
•
|
the stockholder must, within the later of the consummation of the Offer (which will occur at the date and time of the acceptance
for payment of Shares pursuant to and subject to the conditions of the Offer) and twenty (20) days after the mailing of the Schedule 14D-9, deliver to Tetraphase at the address indicated below a written demand for appraisal of their
Shares, which demand must reasonably inform Tetraphase of the identity of the stockholder and that the stockholder is demanding appraisal;
|
•
|
the stockholder must not tender his, her or its Shares pursuant to the Offer; and
|
•
|
the stockholder must continuously hold of record the Shares from the date on which the written demand for appraisal is made
through the Effective Time.
|
Fees and Expenses.
|
Miscellaneous.
|
|
| |
La Jolla Pharmaceutical Company
|
|
| |
TTP Merger Sub, Inc.
|
|
| |
June 29, 2020
|
1.
|
TTP Merger Sub, Inc.
|
Name, Position
Country of Citizenship |
| |
Present Principal Occupation or Employment; Material Positions
Held During the Past Five Years; Certain Other Information |
Kevin Tang
Chairman and Director Citizenship: United States |
| |
Mr. Tang has served as a director and Chairman of La Jolla since August 2014. He
serves as President of Tang Capital Management, LLC, a life sciences focused investment company he founded in 2002. Mr. Tang has also served as the Chairman and Chief Executive Officer of Odonate Therapeutics, Inc. since the company’s
inception in 2013. Since 2009, he has served as a director of Heron Therapeutics, Inc. and, since 2012, has served as Chairman. From 2009 through its acquisition by Endo Pharmaceuticals, Inc. in 2010, Mr. Tang served as a director of
Penwest Pharmaceuticals Co. In 2006, he co-founded Ardea Biosciences, Inc. and served as a director from inception through its acquisition by AstraZeneca PLC in 2012. From 2001 to 2008, Mr. Tang was a director of Trimeris, Inc. From 1993
to 2001, he held various positions at Deutsche Banc Alex Brown, Inc., an investment banking firm, most recently serving as Managing Director and head of the firm’s Life Sciences research group. Mr. Tang received a B.S. degree from Duke
University.
|
|
| |
|
Craig Johnson
Director Citizenship: United States |
| |
Mr. Johnson has served as a director of La Jolla since October 2013. He also
serves as a director of Heron Therapeutics, Inc., Mirati Therapeutics, Inc. and Odonate Therapeutics, Inc. Mr. Johnson served as a director of GenomeDx Biosciences, Inc. from 2015 to 2018. He served as a director of Adamis Pharmaceuticals
Corporation from 2011 to 2014 and as a director of Ardea Biosciences, Inc. from 2008 until its acquisition by AstraZeneca PLC in 2012. From 2011 to 2012, Mr. Johnson served as Chief Financial Officer of PURE Bioscience, Inc., and, from
2010 to 2011, he served as Senior Vice President and Chief Financial Officer of NovaDel Pharma Inc. From 2004 through its acquisition by Raptor Pharmaceuticals Corp. in 2009, Mr. Johnson served as Vice President and Chief Financial
Officer of TorreyPines Therapeutics, Inc., and, from 2009 to 2010, as Vice President of a wholly owned subsidiary of Raptor Pharmaceuticals Corp. From 1994 to 2004, he held various positions at MitoKor, Inc., most recently serving as
Chief Financial Officer and Senior Vice President of Operations. Mr. Johnson practiced as a Certified Public Accountant with Price Waterhouse, and he received a B.B.A. degree in accounting from the University of Michigan-Dearborn.
|
|
| |
|
Michael Hearne
Chief Financial Officer and Secretary Citizenship: United States |
| |
Mr. Hearne has served as La Jolla’s Chief Financial Officer since June 2020.
Since 2015, he has served as Chief Financial Officer of Tang Capital Management, LLC, a life sciences-focused investment company. Since 2015, Mr. Hearne has also held various positions at Odonate Therapeutics, Inc., most recently serving
as Chief Financial Officer since 2018. From 2014 to 2015, he served as a Partner at Weaver & Tidwell, LLP. Mr. Hearne started his career in public accounting at Coopers & Lybrand. Mr. Hearne received a B.S. degree in accounting
and a masters of accountancy, taxation from Brigham Young University and is a Certified Public Accountant (inactive) in the state of California.
|
2.
|
La Jolla Pharmaceutical Company
|
Name, Position
Country of Citizenship |
| |
Present Principal Occupation or Employment; Material Positions
Held During the Past Five Years |
Kevin Tang
Chairman and Director Citizenship: United States |
| |
Mr. Tang has served as a director and Chairman of La Jolla since August 2014. He
serves as President of Tang Capital Management, LLC, a life sciences focused investment company he founded in 2002. Mr. Tang has also served as the Chairman and Chief Executive Officer of Odonate Therapeutics, Inc. since the company’s
inception in 2013. Since 2009, he has served as a director of Heron Therapeutics, Inc. and, since 2012, has served as Chairman. From 2009 through its acquisition by Endo Pharmaceuticals, Inc. in 2010, Mr. Tang served as a director of
Penwest Pharmaceuticals Co. In 2006, he co-founded Ardea Biosciences, Inc. and served as a director from inception through its acquisition by AstraZeneca PLC in 2012. From 2001 to 2008, Mr. Tang was a director of Trimeris, Inc. From 1993
to 2001, he held various positions at Deutsche Banc Alex Brown, Inc., an investment banking firm, most recently serving as Managing Director and head of the firm’s Life Sciences research group. Mr. Tang received a B.S. degree from Duke
University.
|
|
| |
|
Craig Johnson
Director Citizenship: United States |
| |
Mr. Johnson has served as a director of La Jolla since October 2013. He also
serves as a director of Heron Therapeutics, Inc., Mirati Therapeutics, Inc. and Odonate Therapeutics, Inc. Mr. Johnson served as a director of GenomeDx Biosciences, Inc. from 2015 to 2018. He served as a director of Adamis Pharmaceuticals
Corporation from 2011 to 2014 and as a director of Ardea Biosciences, Inc. from 2008 until its acquisition by AstraZeneca PLC in 2012. From 2011 to 2012, Mr. Johnson served as Chief Financial Officer of PURE Bioscience, Inc., and, from
2010 to 2011, he served as Senior Vice President and Chief Financial Officer of NovaDel Pharma Inc. From 2004 through its acquisition by Raptor Pharmaceuticals Corp. in 2009, Mr. Johnson served as Vice President and Chief Financial
Officer of TorreyPines Therapeutics, Inc., and, from 2009 to 2010, as Vice President of a wholly owned subsidiary of Raptor Pharmaceuticals Corp. From 1994 to 2004, he held various positions at MitoKor, Inc., most recently serving as
Chief Financial Officer and Senior Vice President of Operations. Mr. Johnson practiced as a Certified Public Accountant with Price Waterhouse, and he received a B.B.A. degree in accounting from the University of Michigan-Dearborn.
|
|
| |
|
Laura Johnson
Director Citizenship: United States |
| |
Ms. Johnson has served as a director of La Jolla since October 2013. She is the
President and Chief Executive Officer of Next Generation Clinical Research Consulting, Inc., a contract research organization servicing the pharmaceutical industry that she founded in 1999. Additionally, Ms. Johnson is the President and
Chief Executive Officer of Eufaeria Biosciences, Inc., a biotechnology company that she founded in 2016. Since 2018, she has served as a director of Odonate Therapeutics, Inc. Ms. Johnson is also a founder and director of SB Bancorp, Inc.
and Settlers Bank, Inc. Ms. Johnson received a nursing degree from the University of the State of New York-Albany.
|
|
| |
|
Name, Position
Country of Citizenship |
| |
Present Principal Occupation or Employment; Material Positions
Held During the Past Five Years |
David Ramsay
Director Citizenship: United States |
| |
Mr. Ramsay has served as a director of La Jolla since September 2019. Since 2011,
he has served as a director of Savara, Inc. In 2018, Mr. Ramsay served as Senior Vice President and Chief Financial Officer of Bonti, Inc. From 2003 to 2015, he held various positions at Halozyme Therapeutics, Inc., most recently serving
as Chief Financial Officer. From 2000 to 2003, Mr. Ramsay served as Vice President, Chief Financial Officer of Lathian Systems, Inc. From 1998 to 2000, he served as Vice President, Treasurer and Director, Corporate Finance at Valeant
Pharmaceuticals International, Inc. (formerly ICN Pharmaceuticals, Inc.). Mr. Ramsay began his career at Deloitte & Touche LLP. Mr. Ramsay received a B.S. in business administration from the University of California, Berkeley, an MBA
in finance and strategic management from the Wharton School of the University of Pennsylvania and is a Certified Public Accountant (inactive) in the state of California.
|
|
| |
|
Robert Rosen
Director Citizenship: United States |
| |
Robert Rosen has served as a director of La Jolla since July 2014. Since 2017, he
has served as a director of Odonate Therapeutics, Inc. From 2013 to 2019, Mr. Rosen served as President and as a director of Heron Therapeutics, Inc., and, from 2012 to 2013, served as Senior Vice President and Chief Commercial Officer of
Heron Therapeutics, Inc. From 2014 to 2015, he served as a director of Conkwest, Inc. (now NantKwest, Inc.). In 2012, Mr. Rosen served as Managing Partner of Scotia Nordic LLC, a life sciences advisory firm. From 2011 to 2012, he served
as Senior Vice President of Global Commercial Operations at Dendreon Corporation. From 2005 to 2011, Mr. Rosen served as Global Head of Oncology at Bayer HealthCare Pharmaceuticals. From 2002 to 2005, he was Vice President of the Oncology
Business Unit at Sanofi-Synthèlabo Inc. Mr. Rosen received a B.S. degree in pharmacy from Northeastern University.
|
|
| |
|
Lakhmir Chawla, M.D.
Chief Medical Officer Citizenship: United States |
| |
Dr. Chawla has served as the Chief Medical Officer of La Jolla since July 2015.
From 2014 to 2015, he served as Chief of the Division of Intensive Care Medicine at the Washington D.C. Veterans Affairs Medical Center. From 2002 to 2014, Dr. Chawla was on faculty at the George Washington University and achieved the
rank of Professor of Medicine. Dr. Chawla received a B.A. degree in medical science from Boston University and an M.D. degree from Rutgers New Jersey Medical School.
|
|
| |
|
Michael Hearne
Chief Financial Officer and Secretary Citizenship: United States |
| |
Mr. Hearne has served as La Jolla’s Chief Financial Officer since June 2020.
Since 2015, he has served as Chief Financial Officer of Tang Capital Management, LLC, a life sciences-focused investment company. Since 2015, Mr. Hearne has also held various positions at Odonate Therapeutics, Inc., most recently serving
as Chief Financial Officer since 2018. From 2014 to 2015, he served as a Partner at Weaver & Tidwell, LLP. Mr. Hearne started his career in public accounting at Coopers & Lybrand. Mr. Hearne received a B.S. degree in accounting
and a masters of accountancy, taxation from Brigham Young University and is a Certified Public Accountant (inactive) in the state of California.
|
|
| |
|
Name, Position
Country of Citizenship |
| |
Present Principal Occupation or Employment; Material Positions
Held During the Past Five Years |
Darryl Wellinghoff
Chief Commercial Officer Citizenship: United States |
| |
Mr. Wellinghoff has served as the Chief Commercial Officer of La Jolla since
March 2019. From 2016 to 2018, he served as the Executive Vice President at Mainstreet Health. From 2001 to 2016, Mr. Wellinghoff held various positions at The Medicines Company, most recently serving as Senior Vice President of Americas
Commercial. From 1997 to 2001, he held various commercial positions at Bristol-Myers Squibb. Mr. Wellinghoff received a B.A. degree in English from Florida State University.
|
3.
|
Tang Capital Partners, L.P.
|
Name, Position
Country of Citizenship |
| |
Present Principal Occupation or Employment; Material Positions
Held During the Past Five Years |
Kevin Tang
Manager, TCM Citizenship: United States |
| |
Mr. Tang has served as a director and Chairman of La Jolla since August 2014. He
serves as President of Tang Capital Management, LLC, a life sciences focused investment company he founded in 2002. Mr. Tang has also served as the Chairman and Chief Executive Officer of Odonate Therapeutics, Inc. since the company’s
inception in 2013. Since 2009, he has served as a director of Heron Therapeutics, Inc. and, since 2012, has served as Chairman. From 2009 through its acquisition by Endo Pharmaceuticals, Inc. in 2010, Mr. Tang served as a director of
Penwest Pharmaceuticals Co. In 2006, he co-founded Ardea Biosciences, Inc. and served as a director from inception through its acquisition by AstraZeneca PLC in 2012. From 2001 to 2008, Mr. Tang was a director of Trimeris, Inc. From 1993
to 2001, he held various positions at Deutsche Banc Alex Brown, Inc., an investment banking firm, most recently serving as Managing Director and head of the firm’s Life Sciences research group. Mr. Tang received a B.S. degree from Duke
University.
|
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M.,
EASTERN TIME, ON JULY 27, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED. |
By Mail:
|
| |
If Delivering via UPS, FedEx or Courier:
|
|
| |
|
Broadridge Corporate Issuer Solutions, Inc.
Attn: BCIS Re-Organization Dept. P.O. Box 1317 Brentwood, NY 11717-0718 |
| |
Broadridge Corporate Issuer Solutions, Inc.
Attn: BCIS IWS 51 Mercedes Way Edgewood, NY 11717 |
☐
|
| |
CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED HEREWITH.
|
||||||||||||
☐
|
| |
CHECK HERE IF YOU HAVE LOST YOUR CERTIFICATE(S) AND REQUIRE ASSISTANCE IN OBTAINING REPLACEMENT CERTIFICATE(S). BY CHECKING THIS BOX, YOU UNDERSTAND THAT YOU MUST CONTACT AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC TO OBTAIN INSTRUCTIONS FOR REPLACING LOST CERTIFICATES. SEE INSTRUCTION 11.
|
||||||||||||
|
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☐
|
| |
CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY AND PAYING AGENT WITH DTC AND COMPLETE THE FOLLOWING (NOTE THAT ONLY FINANCIAL INSTITUTIONS THAT ARE PARTICIPANTS IN THE SYSTEM OF DTC MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER):
|
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|
|||||||||||||||
|
| |
Name of Tendering Institution:
|
| |
|
|||||||||
|
| |
DTC Account Number:
|
| |
|
| |
Transaction Code Number:
|
| |
|
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☐
|
| |
CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND PAYING AGENT AND COMPLETE THE FOLLOWING:
|
||||||||||||
|
|||||||||||||||
|
| |
Name(s) of Tendering Stockholder(s):
|
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|
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| |
Window Ticket Number (if any):
|
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|
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| |
Date of Execution of Notice of Guaranteed Delivery:
|
| |
|
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|
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| |
Name of Eligible Institution that Guaranteed Delivery:
|
| |
|
|
SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 1, 5, 6 and 7) |
| |||
|
To be completed ONLY if the check for the purchase price of Shares accepted for payment and/or Certificates not tendered or not accepted for payment are to be issued in the name of someone other than the undersigned.
|
| |||
|
|
| |||
|
Issue check and/or Certificates to:
|
| |||
|
|
| |||
|
Name:
|
| |
|
|
|
(Please Print)
|
| |||
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|
Address:
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(Include Zip Code)
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(Taxpayer Identification No. (e.g., Social Security No.))
(Also complete, as appropriate, IRS Form W-9 included below) |
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SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5, 6 and 7) |
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To be completed ONLY if the check for the purchase price of Shares accepted for payment and/or Certificates evidencing Shares not tendered or not accepted are to be mailed to someone other than the undersigned or to the undersigned at an address other than that shown above.
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Mail check and/or Certificates to:
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Name:
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(Please Print)
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Address:
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(Include Zip Code)
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IMPORTANT
STOCKHOLDER: YOU MUST SIGN BELOW (U.S. Holders: Please complete and return the IRS Form W-9 included below) (Non-U.S. Holders: Please obtain, complete and return appropriate IRS Form W-8) |
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(Signature(s) of Holder(s) of Shares)
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Dated:
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Name(s):
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(Please Print)
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Capacity (Full Title) (See Instruction 5):
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Address:
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(Include Zip Code)
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Area Code and Telephone No.:
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Tax Identification No. (e.g., Social Security No.) (See IRS Form W-9 included below):
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(Must be signed by registered holder(s) exactly as name(s) appear(s) on Certificate(s) or on a security position listing or by person(s) authorized to become registered holder(s) by Certificates and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, agent, officer of a corporation or other person acting in a fiduciary or representative capacity, please set forth full title and see Instruction 5.)
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Guarantee of Signature(s)
(If Required - See Instructions) |
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[Place Stamp Here]
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Authorized Signature:
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Name:
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Name of Firm:
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Address:
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(Include Zip Code)
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Area Code and Telephone No.:
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Dated:
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, 2020
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By Mail:
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If Delivering via UPS, FedEx or Courier:
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Broadridge Corporate Issuer Solutions, Inc.
Attn: BCIS Re-Organization Dept. P.O. Box 1317 Brentwood, NY 11717-0718 |
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Broadridge Corporate Issuer Solutions, Inc.
Attn: BCIS IWS 51 Mercedes Way Edgewood, NY 11717 |
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M. EASTERN TIME ON JULY 27, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.
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By Mail:
Broadridge Corporate Issuer Solutions, Inc. Attn: BCIS Re-Organization Dept. P.O. Box 1317 Brentwood, NY 11717-0718 |
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If Delivering via UPS, FedEx or Courier:
Broadridge Corporate Issuer Solutions, Inc. Attn: BCIS IWS 51 Mercedes Way Edgewood, NY 11717 |
No. of Shares and Certificate No.(s):
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(if available)
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☐
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Check here if Shares will be tendered by book-entry transfer.
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Name of Tendering Institution:
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DTC Account Number:
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Dated:
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(Please Type or Print)
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Address(es):
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(Zip Code)
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Area Code and Telephone No.:
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(Daytime Telephone No.)
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Signature(s):
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Name of Firm:
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Address:
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(Zip Code)
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Area Code and Telephone No.:
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(Authorized Signature)
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Name:
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(Please Type or Print)
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Title:
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Date:
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M. EASTERN TIME ON JULY 27, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.
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1.
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The Offer to Purchase;
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2.
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The Letter of Transmittal for your use in accepting the Offer and tendering Shares and for the information of your clients, together with the included Internal Revenue Service Form W-9;
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3.
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A Notice of Guaranteed Delivery to be used to accept the Offer if Shares and all other required documents cannot be delivered to Broadridge Corporate Issuer Solutions, Inc. (the “Depositary and Paying Agent”) by the expiration of the Offer or if the procedure for book-entry transfer cannot be completed by the expiration of the Offer (the “Notice of Guaranteed Delivery”);
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4.
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A form of letter which may be sent to your clients for whose accounts you hold Shares registered in your name or in the name of your nominee, with space provided for obtaining such clients’ instructions with regard to the Offer; and
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5.
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A return envelope addressed to the Depository and Paying Agent for your use only.
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M. EASTERN TIME ON JULY 27, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.
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NUMBER OF SHARES BEING TENDERED HEREBY:
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SHARES*
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Dated:
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Signature(s)
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Please Print Name(s)
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Address:
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(Include Zip Code)
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Area Code and Telephone No.
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Tax Identification or Social Security No.
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*
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Unless otherwise indicated, it will be assumed that all Shares held by us for your account are to be tendered.
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M., EASTERN TIME, ON JULY 27, 2020 (SUCH DATE, OR ANY SUBSEQUENT
DATE TO WHICH THE EXPIRATION OF THE OFFER IS EXTENDED, THE “EXPIRATION DATE”), UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.
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TETRAPHASE PHARMACEUTICALS, INC.
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By:
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/s/ Maria Stahl
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Name:
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Maria Stahl
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Title:
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Chief Business Officer and General Counsel
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LA JOLLA PHARMACEUTICAL COMPANY
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By:
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/s/ Kevin Tang
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Name:
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Kevin Tank
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Title:
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Chairman
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(i) |
If there is a Change of Control (as defined in the CVR Agreement) of LJPC, then Guarantor shall be automatically released from its CVR Guaranteed Obligations at the closing of such Change
of Control as long as (x) the counterparty or counterparties to the Change of Control assume all of the CVR Guaranteed Obligations and (y) the governing Person of Guarantor shall have determined in good faith that such counterparty or
counterparties would be reasonably capable of complying with their obligations thereunder, including that such counterparty or counterparties have or would reasonably be likely to have the financial capabilities to fulfill their obligations
thereunder.
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(ii) |
If LJPC’s market capitalization averages, over any 30 consecutive trading day period following the consummation of the Merger, more than $100,000,000, then the Guarantor shall be
automatically released from the CVR Guaranteed Obligations as of the last day of such 30-day period.
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(iii) |
If more than 20% of the outstanding voting equity of LJPC is sold to one or more third parties in a transaction that is not a Change of Control, then the Guarantor shall be automatically
released from the CVR Guaranteed Obligations at the closing of such sale to the extent that (x) the purchaser or purchasers agree in writing to assume a portion of the CVR Guaranteed Obligations and (y) the governing Person of Guarantor
shall have determined in good faith that such counterparty or counterparties would be reasonably capable of complying with their obligations thereunder, including that such purchaser or purchasers have or would reasonably be likely to have
the financial capabilities to fulfill its obligations thereunder.
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TANG CAPITAL PARTNERS, LP
|
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By:
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Tang Capital Management, LLC, General Partner
|
||
By:
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/s/ Kevin Tang
|
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Name:
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Kevin Tang
|
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Title:
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Manager
|