SEC Comment Letter for Vaxart, Inc. (VXRT) (CIK 0000072444) (VXRT) — Jan 18, 2018
Vaxart, Inc. (VXRT) (CIK 0000072444)
Date: Jan. 18, 2018 · CIK: 0000072444 · Accession: 0000000000-18-001728
AI Filing Summary & Sentiment
Reasoning
Letter
January 17 , 2018 Via E -Mail Andrew Freedman Olshan, From & Wolosky LLP Park Avenue Tower 65 East 55th Street New York, New York 10022
Re: Aviragen Therapeutics, Inc. PREC14A filed on January 12, 2018 Filed by Digirad Corporation et al. File No. 1-35285
Dear Mr. Freedman:
The Office of Mergers and Acquisitions has conducted a limited review of the filing listed above. Our comments follow. All defined terms have the same meaning as in the proxy statement listed above .
Please respond to this letter by revis ing 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 belie ve 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.
Preliminary Proxy Statement filed on January 12, 2018
General
1. All statements of opinion or belief should be clearly presented as such rather than as statemen ts of fact . Some examples of disclosure that should be modified accordingly include the following statements:
Andrew Freedman , Esq. Olshan, Frome & Wolosky LLP January 17, 2018 Page 2
“Aviragen Management has a track record of value destru ction and the Board has failed to take appropria te actions and should be held accountable. ” (page 9)
“The tremendous failure of Ianinamivir and the BARDA contract necessitated CEO Plumb ’s departure from the CEO role. ” (page 11)
“The incumbent Board has overseen this sign ificant destruction of stockholder value and have failed to take approp riate steps to remedy the probl ems that plague the Company. ” (page 11)
Reasons for our Solicitation , page 9
2. We note that in multiple contacts with the Company within the last year, the participants in this soli citation advocated for the liquidation of the Company. Please discuss wh ether this is something you will continue to pursue if this solicitation I successful and the merger with Vaxart is not consummated as a result.
The Proposed Merger is Not in the Best Intere sts of the Company and its Stockholders for Numerous Reasons , page 11
3. Clarify what you me an by the statement that “[b]ased on the disclosures by the Company in the Avir agen Merger Proxy Statement regarding the process employed by the Board, we believe the Company failed to properly consider th e relative benefits of alternative propo sals or avenues for returning value to stockholde rs.”
4. Explain what you mean by the reference to a “double -trigger payment ” in the last paragraph on page 11.
Form of Proxy
5. Revise the reference to discretionary authority on the form of proxy , consistent with the disclosure at the bottom of page 6 of the proxy statement ( with the reference to matters no t known to CAS Group a reasonable time before the solicitation). See Rule 14a-4(c).
We urge all persons who are responsible for the accuracy and adequacy of the disclosure in the filing to be ce rtain that the filing includes t he information the Securities Exchange Act of 1934 and all applicable Exchange Act ru les require. Since the participants in this solicitation are in possession of all facts relating to their disclosure, they are responsible for the accuracy and adequacy of the di sclosures made.
Andrew Freedman , Esq. Olshan, Frome & Wolosky LLP January 17, 2018 Page 3
Andrew Freedman , Esq. Olshan, Frome & Wolosky LLP January 17, 2018 Page 4
If you have any questions regardin g these comments or your filing in general, please feel free to contact me at (202) 551 -3263 .
Sincerely,
/s/ Christina Chalk
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January 17 , 2018 Via E -Mail Andrew Freedman Olshan, From & Wolosky LLP Park Avenue Tower 65 East 55th Street New York, New York 10022 Re: Aviragen Therapeutics, Inc. PREC14A filed on January 12, 2018 Filed by Digirad Corporation et al. File No. 1-35285 Dear Mr. Freedman: The Office of Mergers and Acquisitions has conducted a limited review of the filing listed above. Our comments follow. All defined terms have the same meaning as in the proxy statement listed above . Please respond to this letter by revis ing 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 belie ve 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. Preliminary Proxy Statement filed on January 12, 2018 General 1. All statements of opinion or belief should be clearly presented as such rather than as statemen ts of fact . Some examples of disclosure that should be modified accordingly include the following statements: Andrew Freedman , Esq. Olshan, Frome & Wolosky LLP January 17, 2018 Page 2 “Aviragen Management has a track record of value destru ction and the Board has failed to take appropria te actions and should be held accountable. ” (page 9) “The tremendous failure of Ianinamivir and the BARDA contract necessitated CEO Plumb ’s departure from the CEO role. ” (page 11) “The incumbent Board has overseen this sign ificant destruction of stockholder value and have failed to take approp riate steps to remedy the probl ems that plague the Company. ” (page 11) Reasons for our Solicitation , page 9 2. We note that in multiple contacts with the Company within the last year, the participants in this soli citation advocated for the liquidation of the Company. Please discuss wh ether this is something you will continue to pursue if this solicitation I successful and the merger with Vaxart is not consummated as a result. The Proposed Merger is Not in the Best Intere sts of the Company and its Stockholders for Numerous Reasons , page 11 3. Clarify what you me an by the statement that “[b]ased on the disclosures by the Company in the Avir agen Merger Proxy Statement regarding the process employed by the Board, we believe the Company failed to properly consider th e relative benefits of alternative propo sals or avenues for returning value to stockholde rs.” 4. Explain what you mean by the reference to a “double -trigger payment ” in the last paragraph on page 11. Form of Proxy 5. Revise the reference to discretionary authority on the form of proxy , consistent with the disclosure at the bottom of page 6 of the proxy statement ( with the reference to matters no t known to CAS Group a reasonable time before the solicitation). See Rule 14a-4(c). We urge all persons who are responsible for the accuracy and adequacy of the disclosure in the filing to be ce rtain that the filing includes t he information the Securities Exchange Act of 1934 and all applicable Exchange Act ru les require. Since the participants in this solicitation are in possession of all facts relating to their disclosure, they are responsible for the accuracy and adequacy of the di sclosures made. Andrew Freedman , Esq. Olshan, Frome & Wolosky LLP January 17, 2018 Page 3 Andrew Freedman , Esq. Olshan, Frome & Wolosky LLP January 17, 2018 Page 4 If you have any questions regardin g these comments or your filing in general, please feel free to contact me at (202) 551 -3263 . Sincerely, /s/ Christina Chalk Christina Chalk Senior Special Counsel Office of Mergers and Acquisitions