SEC Comment Letter for Vaxart, Inc. (VXRT) (CIK 0000072444) (VXRT) — Aug 20, 2012
Vaxart, Inc. (VXRT) (CIK 0000072444)
Date: Aug. 20, 2012 · CIK: 0000072444 · Accession: 0000000000-12-044996
AI Filing Summary & Sentiment
Reasoning
Letter
August 20 , 2012 Via E -mail Nathaniel August Director Mangrove Partners 10 East 53rd Street, 31st Floor New York , NY 10022
Re: Nabi Biopharmaceuticals Definitive Additional Proxy Soliciting Materials Filed August 16 , 2012 by The Mangrove Partners Fund, L.P., et al. File No. 001 -35285
Dear Mr. August :
We have reviewed your filing an d have the following comments. Please revise your filing and future filings as appropriate.
General
1. Avoid issuing statements that directly or indirectly impugn character, integrity or personal reputation or make charges of illegal, improper or immoral conduct without factual foundation. Please note that the factual foundation for such assertions must be reasonable. Refer to Note (b) of Rule 14a -9. Please provide us with the factual foundati on for the following disclosure (emphasis added) :
“We question who benefits from the proposed Transaction and can only come to the conclusion that the Transaction is for the benefit of Nabi’s insiders .”
“It is clear to us that both the Board and management of Nabi have failed. It appears that to save face and enrich themselves , they are now pushing to get an ill -conceived transaction completed.”
“…it is clear that the Transaction is really in the best interest of management ”
“Mangrove Partners believes this amounts to a special favor to the top two executives of Nabi for delivering a favorable deal to Biota.”
Further, please confirm that in fut ure communications filed under cover of Schedule 14A you will disclose the factual foundation for or refrain from including similar assertions.
Nathaniel August Mangrove Partners August 20, 2012 Page 2
2. We note your statement that the primary purpose of the merger is to secure substantial payments in the form of change of control benefits for Nabi’s executives . However, certain of the severance agreements appear to provide that a liquidation or dissolution of the company approved by the shareholders in accordance wit h Delaware law would also qualify as a change of control. Please provide your analysis.
3. Please provide support for your statement that Biota has lost money for the past two years.
We urge all persons who are responsible for the accuracy and adequacy of the disclosure in the filing to be certain that the filing includes the information the Securities Exchange Act of 1934 and all applicable Exchange Act rules require. Since the compa ny and its management are in possession of all facts relating to a company’s disclosure, they are responsible for the accuracy and adequacy of the disclosures they have made.
Please contact Karen Ubell, Staff Attorney, at (202) 551 -3873 or me at (202) 5 51-3503 with any questions.
Sincerely,
/s/ David L. Orlic
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August 20 , 2012 Via E -mail Nathaniel August Director Mangrove Partners 10 East 53rd Street, 31st Floor New York , NY 10022 Re: Nabi Biopharmaceuticals Definitive Additional Proxy Soliciting Materials Filed August 16 , 2012 by The Mangrove Partners Fund, L.P., et al. File No. 001 -35285 Dear Mr. August : We have reviewed your filing an d have the following comments. Please revise your filing and future filings as appropriate. General 1. Avoid issuing statements that directly or indirectly impugn character, integrity or personal reputation or make charges of illegal, improper or immoral conduct without factual foundation. Please note that the factual foundation for such assertions must be reasonable. Refer to Note (b) of Rule 14a -9. Please provide us with the factual foundati on for the following disclosure (emphasis added) : “We question who benefits from the proposed Transaction and can only come to the conclusion that the Transaction is for the benefit of Nabi’s insiders .” “It is clear to us that both the Board and management of Nabi have failed. It appears that to save face and enrich themselves , they are now pushing to get an ill -conceived transaction completed.” “…it is clear that the Transaction is really in the best interest of management ” “Mangrove Partners believes this amounts to a special favor to the top two executives of Nabi for delivering a favorable deal to Biota.” Further, please confirm that in fut ure communications filed under cover of Schedule 14A you will disclose the factual foundation for or refrain from including similar assertions. Nathaniel August Mangrove Partners August 20, 2012 Page 2 2. We note your statement that the primary purpose of the merger is to secure substantial payments in the form of change of control benefits for Nabi’s executives . However, certain of the severance agreements appear to provide that a liquidation or dissolution of the company approved by the shareholders in accordance wit h Delaware law would also qualify as a change of control. Please provide your analysis. 3. Please provide support for your statement that Biota has lost money for the past two years. We urge all persons who are responsible for the accuracy and adequacy of the disclosure in the filing to be certain that the filing includes the information the Securities Exchange Act of 1934 and all applicable Exchange Act rules require. Since the compa ny and its management are in possession of all facts relating to a company’s disclosure, they are responsible for the accuracy and adequacy of the disclosures they have made. Please contact Karen Ubell, Staff Attorney, at (202) 551 -3873 or me at (202) 5 51-3503 with any questions. Sincerely, /s/ David L. Orlic David L. Orlic Special Counsel Office of Mergers and Acquisitions cc: Steve Wolosky Olshan Frome Wolosky LLP swolosky@olshanlaw.com