UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
November 26, 2019
Via Email
Jeffrey Stein, Ph.D.
President and Chief Executive Officer
Cidara Therapeutics, Inc.
6310 Nancy Ridge Drive, Suite 101
San Diego, California 92121
Re: Cidara Therapeutics, Inc.
Schedule TO-I filed on November 20, 2019
File No. 005-88806
Dear Mr. Stein:
The staff in the Office of Mergers and Acquisitions has reviewed the
filing listed above,
and we have the comments set forth below. All defined terms used herein have
the same
meaning as in the Offer to Exchange Eligible Options for New Options (the
"Exchange Offer")
attached as Exhibit (a)(1)(A) to the Schedule TO-I. In some of our comments,
we may ask you
to provide us with information so we may better understand your disclosure.
Please respond to this letter by amending your filing, by providing
the requested
information or by advising us when you will provide the requested response.
If you do not
believe our comments apply to your facts and circumstances or do not believe
an amendment is
appropriate, please tell us why in your response.
After reviewing any amendment to your filing and the information you
provide in
response to these comments, we may have additional comments.
Schedule TO-I
Item 7. Source and Amount of Funds or Other Consideration
1. The cross reference in Item 7(b) to Section 6 of the Exchange Offer
appears to be
inappropriate, as Section 6 sets forth the conditions to the
consummation of the Exchange
Offer rather than any material conditions to any financing of
consideration to be provided
in the Exchange Offer. See Item 1007(b) of Regulation M-A. Please
revise.
Item 10. Financial Information
2. Please revise Item 10(a) to include the issuer's book value per share as
of the date of the
most recent balance sheet presented. See Item 1010(a)(4) of Regulation
M-A. Please
revise to provide this information in the Offer to Purchase or in
documents incorporated
by reference.
Item 12. Exhibits
3. We note that the offer materials appear to have been distributed only via
email. In your
response letter, please explain why you believe this method of
dissemination is
appropriate under the circumstances of the Exchange Offer, taking into
consideration the
characteristics of the subject security holders and your normal means of
communicating
with employees. As an example, discuss whether all employees who are the
subject of the
offer have access to corporate email and whether this is your typical way
of
communicating with them.
Exhibit (a)(1)(A) Exchange Offer
Eligible Holders; Eligible Options; the Proposed Exchange; Expiration and
Extension of the
Exchange Offer, page 15
4. We note that the Term "Eligible Holders" excludes employees who have
received a
notice of termination prior to the commencement of the Exchange Offer and
employees
who, between the commencement date and the Expiration Time, either
receive a notice of
termination or submit a notice of resignation. Please clarify, however,
whether the term
"Eligible Holders" includes employees who have submitted a notice of
resignation prior
to the commencement date of the Exchange Offer but are still employees as
of the
Expiration Time.
Procedures for Tendering Eligible Options, pages 18-19
5. See our comment above regarding the method of disseminating the offer
materials. We
note your disclosure throughout the Exchange Offer indicating that only
tenders
submitted via email will be accepted. In your response letter, please
explain why you
believe restricting the means of tendering to this process under all
circumstances is
acceptable.
6. Please refer to the following statement: "Subject to Rule 13e-4 under the
Exchange Act,
we also reserve the right to waive any of the conditions of the Exchange
Offer or any
defect or irregularity in any tender with respect to any particular
Eligible Options or any
particular Eligible Holder." While you may reserve the right to waive
defects or
irregularities of tender as to individual tendering Eligible Holders, the
conditions of the
Exchange Offer must be the same for everyone. Please revise the language
regarding
waiver of offer conditions.
7. Please refer to the following statement: "Subject to our rights to
terminate and amend the
Exchange Offer in accordance with Section 6 ("Conditions of the Exchange
Offer") . . ."
It appears that the cross-reference to Section 6 should instead be to
Section 13
("Extension of the Exchange Offer; Termination; Amendment"). If so,
please revise
accordingly.
Withdrawal Rights, pages 19-20
8. See our comments above regarding the methods of dissemination and tender.
We note
your disclosure throughout the Exchange Offer indicating that only
withdrawals of
tenders submitted via email will be accepted. In your response letter,
please explain why
you believe restricting the means of withdrawing tenders to this process
under all
circumstances is acceptable.
Conditions of the Exchange Offer, pages 20-22
9. Refer to the following statement: "[A]ny general suspension of, or
general limitation on
prices for, or trading in, securities on any national securities exchange
in the United
States or in the over-the-counter market." Please revise to clarify what
would be
considered a limitation on prices for securities.
10. Refer to bullet point seven on page 21. It is not clear what mandatory
or voluntary
limitations by "any governmental, regulatory, administrative agency or
authority" might
affect extensions of credit to you. Please revise to explain or provide
examples, here or in
an appropriate section of the Offer to Exchange. Alternatively, consider
modifying the
condition to more narrowly tailor it to the circumstances that could
affect Cidara.
11. Refer to bullet eight on page 21. This condition will be triggered by an
"extraordinary or
material adverse change in U.S. financial markets generally, including a
decline of at
least 10%..." Revise the condition to quantify what would be considered
materially
adverse or extraordinary for purposes of this condition, beyond the
enumerated 10%
decline in your share price. In addition, revise the condition to
specify whether the
decline would be measured at expiration or whether the condition could
be "triggered" at
some earlier point while the Exchange Offer is pending, even if your
share price
rebounds by the Expiration Time.
12. Refer to the third sentence in the last paragraph in this Section on
page 22. Here you
state that conditions may be waived "at any time and from time to time
prior to our
acceptance of your tendered Eligible Options for exchange..." Offer
conditions must be
asserted or waived as of the Expiration Time, rather than the date of
acceptance. That is,
an event or non-occurrence of an event after expiration cannot be the
basis for
abandoning an offer. Please revise your disclosure here accordingly.
Conditions of the Exchange Offer, pages 23-24
13. Please revise the table showing the number of shares underlying Eligible
and New
Options beneficially owned by directors and executive officers to
include the percentage
of Eligible Options held by each such person. See Item 1008(a) of
Regulation M-A.
* * *
We remind you that the registrant and its management are responsible
for the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Please direct any questions to Valian Afshar, Special Counsel, at (202)
551-8729, or me,
at (202) 551-3263.
Sincerely,
/s/ Christina Chalk
Christina Chalk
Senior Special
Counsel
Office of Mergers
and Acquisitions
cc: Charles J. Blair, Esq. (via email)
Karen E. Deschaine, Esq. (via email)
Cooley LLP