Item 1.01 Entry into a Material Definitive Agreement.
Private Placement
On January 16, 2020, Iterum Therapeutics Bermuda Limited, a company formed under
the laws of Bermuda (the "Issuer") and a wholly-owned subsidiary of Iterum
Therapeutics plc (the "Company"), entered into a securities purchase agreement
(the "Purchase Agreement") with the Company, the Company's wholly-owned
subsidiaries and a group of accredited investors, as set forth therein (the
"Investors"), pursuant to which the Issuer agreed to issue and sell to the
Investors in a private placement (the "Private Placement") approximately
$51.9 million aggregate principal amount of its 6.500% exchangeable senior
subordinated notes due 2025 (the "Exchangeable Notes") and $0.1 million
aggregate principal amount of its limited recourse royalty-linked subordinated
notes (the "RLNs" and, together with the Exchangeable Notes, the "Securities").
The Securities will be sold in units (the "Units") with each Unit consisting of
$1,000 principal amount of Exchangeable Notes and 50 RLNs. The Units will be
sold at a price of $1,000 per Unit. The Issuer's obligations under the
Securities will be guaranteed by the Company and its wholly-owned subsidiaries
(collectively, the "Guarantors").
The Investors included entities affiliated with Sarissa Capital Management LP
("Sarissa") and RA Capital Management and entities affiliated with certain
members of the Company's board of directors, including Brenton Ahrens, Mark
Chin, James Healy, Patrick Heron, Ronald Hunt and Shahzad Malik, and the other
Investors as set forth in the Purchase Agreement. SVB Leerink acted as the
exclusive placement agent for the Private Placement.
The Private Placement is expected to close within five business days of the
execution date (the "Closing Date"), subject to the satisfaction of certain
customary closing conditions. The Company expects to receive net proceeds from
the sale of the Securities of approximately $47.0 million, after deducting
placement agent fees and estimated offering expenses. The Company expects to use
the net proceeds from the sale of the Securities to fund the continued clinical
development of sulopenem and the management of regulatory filings, and for
working capital and general corporate purposes.
Pursuant to the Purchase Agreement, the Company agreed to seek shareholder
approval (i) as may be required by the applicable rules and regulations of the
Nasdaq Stock Market to permit the issuance of the Exchange Shares (as defined
below) issuable in connection with the exchange of all Exchangeable Notes issued
to the Investors (the "Shareholder Approval"), (ii) to increase the authorized
number of ordinary shares, nominal value $0.01 per share, of the Company (the
"Ordinary Shares") under the Company's constitution to permit the issuance of
Exchange Shares issuable in connection with the exchange of all Exchangeable
Notes issued to the Investors ("Authorized Shares Approval") and (iii) as may be
required under Irish takeover rules to facilitate the issuance of Exchange
Shares without triggering a requirement for a mandatory offer under Irish
takeover rules (together with the Shareholder Approval and the Authorized Shares
Approval, the "Approvals"). In addition, as required by the Company's directors,
including the directors affiliated with certain of the Investors, the Company
agreed to undertake an offering of subscription rights to purchase additional
Units (the "Rights Offering") on a pro rata basis to the Company's other
shareholders that are not Investors pursuant to the Purchase Agreement.
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Exchangeable Note Indenture and the Exchangeable Notes
In connection with the transactions contemplated by the Purchase Agreement, on
the Closing Date, the Issuer and the Guarantors will enter into an indenture
(the "Exchangeable Note Indenture") with respect to the Exchangeable Notes with
U.S. Bank National Association, as trustee (the "Exchangeable Notes Trustee").
The Exchangeable Notes will mature on January 31, 2025, unless earlier
exchanged, redeemed or repurchased in accordance with their terms, and will bear
simple, non-compounding interest at a rate of 6.500% per year, payable solely on
the date of maturity.
The Exchangeable Notes will be senior subordinated obligations of the Issuer and
will be guaranteed on a senior subordinated basis by the Guarantors (the
"Exchangeable Note Guarantees"). The Exchangeable Notes and Exchangeable Note
Guarantees will be unsecured and rank equally with all of the Issuer's and each
Guarantor's existing and future senior obligations. The Exchangeable Notes will
be senior in right of payment to any of the Issuer's and each Guarantor's future
obligations that are, by their terms, expressly subordinated in right of payment
to the Exchangeable Notes and Exchangeable Note Guarantees. The Exchangeable
Notes and Exchangeable Note Guarantees will be subordinated to the Issuer's and
the Guarantors' obligations to Silicon Valley Bank ("SVB"), including their
obligations pursuant to the Loan and Security Agreement, dated as of April 27,
2018 and amended as of January 16, 2020, with SVB (the "Loan Agreement") and any
refinancings thereof, subject to the terms of the Exchangeable Note Indenture.
In addition, the Exchangeable Notes and Exchangeable Note Guarantees will be
effectively subordinated to the Issuer's and each Guarantor's secured
obligations, including obligations under the Loan Agreement, to the extent of
the value of the collateral securing such obligations.
The Exchangeable Notes will be exchangeable, at the Company's election, into
Ordinary Shares, cash or a combination of Ordinary Shares and cash, at an
initial exchange rate of 1,000 shares per $1,000 principal amount of
. . .
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 of this Current Report on Form 8-K under
the headings "Exchangeable Note Indenture and the Exchangeable Notes" and "RLN
Indenture and the RLNs" is incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities.
The information set forth under Item 1.01 of this Current Report on Form 8-K
under the heading "Private Placement" is incorporated herein by reference.
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Based in part upon the representations of the Investors in the Purchase
Agreement, the offering and sale of the Securities was exempt from registration
under Section 4(a)(2) of the Securities Act of 1933, as amended (the "Securities
Act"), and Rule 506 of Regulation D under the Securities Act. The Securities
have not been registered under the Securities Act or any state securities laws,
and the Securities may not be offered or sold in the United States absent
registration with the SEC or an applicable exemption from the registration
requirements. The sale of the Securities did not involve a public offering and
was made without general solicitation or general advertising. The Investors
represented that they are accredited investors, as such term is defined in Rule
501(a) of Regulation D under the Securities Act, and that they are acquiring the
Securities for investment purposes only and not with a view to any resale,
distribution or other disposition of the Securities in violation of the United
States federal securities laws.
Item 8.01 Other Events.
On January 17, 2020, the Company issued a press release announcing the Private
Placement. The full text of the press release issued in connection with this
announcement is attached as Exhibit 99.1 to this Current Report on Form 8-K and
incorporated herein by reference.
The Company expects that the net proceeds from the Private Placement, together
with its existing cash and cash equivalents, will enable it to fund its
operating expenses and capital expenditure requirements into the second half of
2020. However, the Company has based this estimate on assumptions that may prove
to be wrong, and its operating plans may change as a result of many factors
currently unknown to the Company. As a result, the Company could deplete its
capital resources sooner than it currently expects.
Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements within the
meaning of The Private Securities Litigation Reform Act of 1995. Such
forward-looking statements include, but are not limited to, those regarding: the
expected closing of the Private Placement, anticipated proceeds from the Private
Placement, the Rights Offering, the Company's plans to file a registration
statement to register the resale of the Registrable Securities, the Company's
plans to obtain the Approvals, the use of proceeds from the Private Placement or
any future issuance of the Securities, expectations with respect to the
sufficiency of the Company's cash resources, the development, therapeutic and
market potential of sulopenem, and the timing, progress and results of clinical
trials and regulatory submissions and potential product sales. The words
"anticipate," "believe," "continue," "could," "estimate," "expect," "intend,"
"may," "plan," "potential," "predict," "project," "should," "target," "would,"
"will," and similar expressions are intended to identify forward-looking
statements, although not all forward-looking statements contain these
identifying words. Such statements are subject to numerous important factors,
risks and uncertainties that may cause actual events or results to differ
materially from current expectations and beliefs, including but not limited to:
general economic and market conditions; the uncertainties inherent in the
conduct of clinical trials, clinical trial patient enrollment, availability and
timing of data from clinical trials; changes in regulatory requirements or
decisions of regulatory authorities, including uncertainties associated with
regulatory review of clinical trials and applications for marketing approval;
changes in public policy or legislation; the actions of third-party clinical
research organizations, suppliers and manufacturers; commercialization plans and
timelines, if approved; the sufficiency of the Company's cash resources and its
ability to continue as a going concern; and other factors discussed under the
caption "Risk Factors" in the Company's most recently filed Quarterly Report on
Form 10-Q and its other filings with the SEC. Any forward-looking statements
contained in this Current Report on Form 8-K speak only as of the date hereof,
and the Company specifically disclaims any obligation to update any
forward-looking statement, whether as a result of new information, future events
or otherwise.
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Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. Description
4.1 Form of Indenture (including form of note), to be dated as of
the Closing Date, by and among Iterum Therapeutics Bermuda
Limited, Iterum Therapeutics plc, Iterum Therapeutics
International Limited, Iterum Therapeutics US Limited, Iterum
Therapeutics US Holding Limited and U.S. Bank National
Association, as trustee.
4.2 Form of 6.500% Exchangeable Senior Subordinated Note due 2025
(included within Exhibit 4.1).
4.3 Form of Indenture (including form of note), to be dated as of
the Closing Date, by and among Iterum Therapeutics Bermuda
Limited, Iterum Therapeutics plc, Iterum Therapeutics
International Limited, Iterum Therapeutics US Limited, Iterum
Therapeutics US Holding Limited, Iterum Holders' Representative
LLC and Computershare Trust Company, N.A., as trustee.
4.4 Form of Limited Recourse Royalty-Linked Subordinated Note
(included within Exhibit 4.3).
10.1 Securities Purchase Agreement, dated as of January 16, 2020,
by and among Iterum Therapeutics Bermuda Limited, Iterum
Therapeutics plc, Iterum Therapeutics International Limited,
Iterum Therapeutics US Limited, Iterum Therapeutics US Holding
Limited and the Investors party thereto.
10.2 Form of Investor Rights Agreement, to be dated as of the
Closing Date, by and among Iterum Therapeutics Bermuda Limited,
Iterum Therapeutics plc, Iterum Therapeutics International
Limited, Iterum Therapeutics US Limited, Iterum Therapeutics US
Holding Limited and the Investors party thereto.
10.3 First Amendment to Loan and Security Agreement, dated as of
January 16, 2020, by and among Iterum Therapeutics Bermuda
Limited, Iterum Therapeutics International Limited, Iterum
Therapeutics US Limited, Iterum Therapeutics US Holding Limited
and Silicon Valley Bank.
99.1 Press Release, dated January 17, 2020, of Iterum Therapeutics
plc.
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