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transe20201008b_8k.htm
false 0000876378 0000876378 2020-10-09 2020-10-09
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
_________________
 
FORM 8-K
_________________
 
CURRENT REPORT
 
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
 
October 9, 2020
Date of Report (date of earliest event reported)
_________________
 
TransEnterix, Inc.
(Exact name of Registrant as specified in its charter)
_________________
 
Delaware
(State or other jurisdiction of incorporation or organization)
  
0-19437
(Commission
File Number)
  
11-2962080
(I.R.S. Employer
Identification Number)
 
635 Davis Drive, Suite 300
Morrisville, North Carolina 27560

(Address of principal executive offices)
 
919-765-8400
(Registrant’s telephone number, including area code)
 
Not Applicable
(Former name or former address, if changed since last report)
_________________
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
 
☐     Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
☐     Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
☐     Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
☐     Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
Securities registered pursuant to Section 12(b) of the Act:
 
Title of each class
  
Trading symbol
  
Name of each exchange on which registered
Common Stock
$0.001 par value per share
  
TRXC
  
NYSE American
 
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
 
Emerging growth company ☐
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.       ☐
 
 
 
 
 
Item 1.01 Entry into a Material Definitive Agreement.
 
On October 9, 2020, TransEnterix, Inc. (the “Company”), is filing a prospectus supplement (the “Prospectus Supplement”), relating to an “at the market” offering (the “ATM Offering”) by the Company of up to an aggregate of $40,000,000 of shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), which Shares are registered under the Registration Statement on Form S-3 (File No. 333-236200) (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”) and declared effective on February 10, 2020.
 
The Shares are to be sold by the Company pursuant to an Controlled Equity OfferingSM Sales Agreement dated August 12, 2019 (the “Sales Agreement”) entered into by and between the Company and Cantor Fitzgerald & Co., as sales agent (“Cantor”), a copy of which has been filed as Exhibit 1.1 to the Company’s Current Report on Form 8-K filed with the Commission on August 12, 2019.
 
Subject to the terms and conditions of the Sales Agreement, Cantor will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell, on the Company’s behalf, any shares of Common Stock to be offered by the Company under the Sales Agreement. Cantor will offer the Common Stock subject to the terms and conditions of the Sales Agreement on a daily basis or as otherwise agreed upon by the Company and Cantor. The Company will designate the maximum amount of Common Stock to be sold through Cantor on a daily basis or otherwise determine such maximum amount together with Cantor. The Company may instruct Cantor not to sell Common Stock if the sales cannot be effected at or above the price designated by the Company in any such instruction. The Company or Cantor may suspend the offering of Common Stock being made through Cantor under the Sales Agreement upon proper notice to the other party.
 
The aggregate compensation payable to Cantor as sales agent shall be equal to 3.0% of the aggregate gross proceeds from each sale of the Company’s Common Stock under the Sales Agreement. In addition, the Company has agreed in the Sales Agreement to provide indemnification and contribution to Cantor against certain civil liabilities, including liabilities under the Securities Act. In addition, the Company has agreed to reimburse Cantor for certain expenses incurred in connection with this ATM Offering, up to a maximum of $25,000. The total expenses for the offering payable by the Company, excluding commissions and reimbursements payable to Cantor under the Sales Agreement, will be approximately $115,000.
 
The offering of Common Stock pursuant to the Sales Agreement will terminate upon the earlier of (i) the sale of all of the shares of Common Stock under the ATM Offering and (ii) termination of the Sales Agreement by the Company or by Cantor.
 
The Sales Agreement was filed as Exhibit 1.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on August 12, 2019 and is incorporated herein by reference. The foregoing description of the material terms of the Sales Agreement does not purport to be complete and is qualified in its entirety by reference to the exhibit attached hereto.  
 
Item 9.01 Financial Statements and Exhibits
 
(d) Exhibits.
 
1.1
 
5.1
 
23.1
 
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
 
 
 
 
SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
 
 
TRANSENTERIX, INC.
Date: October 9, 2020
By:
/s/ Shameze Rampertab
Shameze Rampertab
Executive Vice President and Chief Financial Officer
 
 
ex_206488.htm

Exhibit 5.1

 https://cdn.kscope.io/1490c386bede9060e38afb0e63f1ff31-smlogo.jpg

 

https://cdn.kscope.io/1490c386bede9060e38afb0e63f1ff31-contactinfo.jpg

 

 

October 9, 2020

 

 

 

 

TransEnterix, Inc.
635 Davis Drive, Suite 300
Morrisville, NC 27560
   

Re:

TransEnterix, Inc.

 

Ladies and Gentlemen:

 

We have acted as counsel to TransEnterix, Inc., a Delaware corporation (the “Company”), and are rendering this opinion in connection with the preparation and filing of a prospectus supplement, dated October 9, 2020 (the “Prospectus Supplement”), relating to the offering by the Company of up to an aggregate of $40,000,000 of shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), which Shares are registered under the Registration Statement on Form S-3 (File No. 333-236200) (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”) and declared effective on February 10, 2020.

 

The Shares are to be sold by the Company pursuant to an Controlled Equity OfferingSM Sales Agreement dated August 12, 2019 (the “Sales Agreement”) entered into by and between the Company and Cantor Fitzgerald & Co., as sales agent, a copy of which has been filed as Exhibit 1.1 to the Company’s Current Report on Form 8-K filed with the Commission on August 12, 2019.

 

In so acting, we have examined originals or copies (certified or otherwise identified to our satisfaction) of (i) the Amended and Restated Certificate of Incorporation of the Company together with all amendments thereto; (ii) the Amended and Restated Bylaws of the Company; (iii) the Registration Statement and the exhibits thereto; (iv) the Prospectus Supplement and the prospectus contained within the Registration Statement; (v) the Sales Agreement; and (vi) such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and other sources believed by us to be reliable, and of officers and representatives of the Company, and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinions hereinafter set forth.

 

 

TransEnterix, Inc.

October 9, 2020

Page 2

 

In delivering this opinion, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as certified, photostatic or conformed copies, the authenticity of originals of all such latter documents, and the accuracy and completeness of all records, information and statements submitted to us by officers and representatives of the Company. In making our examination of documents executed by parties other than the Company, we have assumed that such parties had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization of all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof with respect to such parties.

 

Based upon and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that the Shares to be issued and sold by the Company have been duly authorized for issuance and, when issued and paid for in accordance with the terms and conditions of the Sales Agreement, will be validly issued, fully paid and non-assessable shares of Common Stock.

 

We express no opinion as to the laws of any jurisdiction other than the State of Delaware and the federal securities laws of the United States.

 

We hereby consent to the filing of this opinion with the Commission as an exhibit to a Current Report on Form 8-K (and its incorporation by reference into the Registration Statement) in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act, and to the use of this firm’s name therein and in the Prospectus Supplement under the caption “Legal Matters.” In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

 

Sincerely,

 

/s/ Ballard Spahr LLP