SEC Comment Letter for Armata Pharmaceuticals, Inc. (ARMP) (CIK 0000921114) (ARMP) — Jun 15, 2015
Armata Pharmaceuticals, Inc. (ARMP) (CIK 0000921114)
Date: June 15, 2015 · CIK: 0000921114 · Accession: 0000000000-15-031628
AI Filing Summary & Sentiment
Reasoning
Letter
June 15 , 2015 Via E - Mail Jeremy Curnock Cook Interim Chief Executive Officer AmpliPhi Biosciences Corporation 4870 Sadler Road, Suite 300 Glen Allen, VA 23060 AmpliPhi Biosciences Corporation Preliminary Proxy Statement on Schedule 14A Filed May 15, 2015 File No. 000 -23930
Re: Schedule 13E -3 filed by AmpliPhi Biosciences Corporation Filed June 2, 2015 File No. 005 -44887
Dear Mr. Cook:
We have reviewed the above filings and have the following comments. In some of our comments, we may ask you to provide us with information so we may better understand your disclosure.
Please respond to these comments within ten business days by providing the requested inform ation or advise us as soon as possible when you will respond. If you do not believe our comments apply to your facts and circumstances, please tell us why in your response.
After reviewing your response to these comments, we may have additional comment s.
Schedule 13E -3
General
1. Please include the legend required by Rule 13e -3(e)(1)(iii).
2. In response to disclosure requirements required by SC 13E -3, please revise the proxy statement to include information as of the most reasonable practicable date or completed fiscal quarter ended March 31, 2015, as appropriate. For example, please update the information required by Items 2 and 13 of SC 13 E-3.
Jeremy Curnock Cook AmpliPhi Biosciences Corporation June 15 , 2015 Page 2
Item 3. Identity and Background of Filing Person, page 3
3. Please provide the information required by Instruction C to Schedule 13E -3, including the information required by Item 100 3(c) of Regulation M -A as to any natural person specified in Instruction C to the schedule.
Item 13. Financial Statements, page 7
4. Please re fer to commen t 2, above and include the information required by Regulation M - A as of the most recent quarterly report filed.
5. It appears that the Company is intending to incorporate by reference the information required by Item 1010(a) of Regulation M -A. In circumstances where the filing person elects to incorporate by reference the information required by Item 1010(a), all of the summarized financial information required by Item 1010(c) must be disclosed in the document furnished to security holders. See Instruction 1 to Item 13 of Schedule 13E -3. Please revise to include summary financial statements and other applicable financial information required by Item 1010(c)(1) through (6).
Schedule 14A
General
6. Consistent with Rule 13e -3(e)(1)(ii), please revis e to include a Special Factors section prominently at the front of the disclosure document and include the information required by Items 7,8 and 9 of SC 13 E-3.
7. Please include a Summary Term Sheet. Ref er generally to Item 1 of SC 13E -3 and corresponding Item 1001 of Regulation M -A.
General Information…, page 7
8. Please i nclude a question and answer that references the potential going -private effect associated with approval of the reverse stock split proposal. Please disclose the ratio, if any, at which a going private effect would not be triggered. If all of the contemplated ratios could result in a going private effect, revise to clearly state this fact.
Proposal No. 4, page 27
9. In an appropriate place in your discussion on page 27, expand the disclosure of the background of the transaction to describe all discussions, meetings, contacts and reports among the Board of Directors, affiliates and/or advisors regarding the proposal to ext end your Board’s authorization to effect a reverse stock split of your common shares, including:
Jeremy Curnock Cook AmpliPhi Biosciences Corporation June 15 , 2015 Page 3
the range of ratios considered to effectuate a reverse stock split; advantages and disadvantages discussed, including the consideration given to the impact on liquidity and the number of recordholders following a reverse stock split; and alternatives to a reverse stock split that could also accomplish the company’s stated goals of increasing the minimum market price to above $3.00 . Refer generally to Item 1013 of Regulation M -A and instructions thereto.
10. We note disclosure that you do not anticipate the number of recordholders to be reduced significantly following the effec tuation of the reverse stock split. Please clarify the ratios that would result in recordholders falling to below 300 and the consequences associated therewith.
11. Clarify, if true, that although it is not the intent of the parties, the reverse split transaction could trigger application of Rule 13e -3. Also, please clarify your plans should recordholders fall below 300 as a result of effecting the reverse stock split. Disclose, for example, whether the company will continue to file periodic reports even if it beca me eligible to deregister under the Exchange Act.
12. Please revise your disclosure throughout to include the procedural and substantive fairness discussion with respect to unaffiliated securityholders, which is required by Item 1014 of Regulation M -A. Please note that the factors li sted in Instruction 2 to Item 1014 of Regulation M -A are generally relevant to the Company´s fairness determination and should be discussed in reasonable detail. See Question Nos. 20 and 21 of the Exchange Act Release No. 34 -17719 (April 13, 1981). In this regard, we note the absence of such disclosure in the Schedule 13E -3 and the preliminary proxy statement.
13. Please revise your disclosure to affirmatively state, after making reasonable inquiry, whether you know how any of your executive officers, directo rs or affiliates currently intends to vote subject securities, including any securities for which the person has proxy authority. Refer to Item 1012(d) of Regulation M -A, including the instructions, thereto.
Purpose and Background of the Reverse Stock Sp lit, page 28
14. Please revise to provide the disclosure required by Item 7 of SC 13E -3 and corresponding Item 1013 of Regulation M -A.
Principal Effects of the Reverse Stock Split on Common Stock; No Fractional Shares, page 29
15. Please revise to disclose the information regarding expenses as required by Item 1007(c) of Regulation M -A.
Jeremy Curnock Cook AmpliPhi Biosciences Corporation June 15 , 2015 Page 4
No Dissenters Rights, page 32
16. We note your statement that shareholders are not entitled to appraisal rights under applicable state law. If applicable, please revise to briefly outline any other rights that may be available under applicable law for security holders who object to the transaction. Refer to Item 1004(d) of Regulation M -A.
Required Approval, page 32
17. Please revise your disclosure on page 32 under the captio n “Required Approval” to specifically state that the approval of at least a majority of unaffiliated security holders is not required. Refer to Item 1014(c) of Regulation M -A.
18. Your disclosure states on page 32 that “ [t]he Board recommends a vote FOR authorization of the reverse stock split at a ratio at least one -for-five and up to one -for- fifty.” The preliminary proxy statement does not contain, however, disclosure whether or not the Rule 13e -3 transaction was approved by a majority of your directors w ho are not employed by you. Refer to Item 1014(e) of Regulation M -A.
Executive Compensation, page 37
19. Please disclose the cash payment you expect each director and officer to receive as a result of the reverse stock split based on their current share own ership, individually, and in the aggregate.
Form of Proxy Card
20. Please revise to indicate that the form of proxy card is a preliminary copy. See Rule 14a - 6(e)(1).
* * * * *
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 company 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.
In responding to our comments, please provide a written statement from the company acknowledging that:
the company is responsible for the adequacy and accuracy of the disclosure in the filing;
Jeremy Curnock Cook AmpliPhi Biosciences Corporation June 15 , 2015 Page 5
staff comments or changes to disclosure in response to staff comments do not foreclose the Commission from taking any action with respect to the filing; and
the company may not assert staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the Uni ted States.
You may contact Staff Attorney Preston Brewer at (202) 551 -3969 or me at (202) 551 - 3715 with any questions.
Sincerely,
/s/ Mellissa Campbell Duru
Show Raw Text
June 15 , 2015
Via E - Mail
Jeremy Curnock Cook
Interim Chief Executive Officer
AmpliPhi Biosciences Corporation
4870 Sadler Road, Suite 300
Glen Allen, VA 23060
Re: Schedule 13E -3 filed by AmpliPhi Biosciences Corporation
Filed June 2, 2015
File No. 005 -44887
AmpliPhi Biosciences Corporation
Preliminary Proxy Statement on Schedule 14A
Filed May 15, 2015
File No. 000 -23930
Dear Mr. Cook:
We have reviewed the above filings and have the following comments. In some of our
comments, we may ask you to provide us with information so we may better understand your
disclosure.
Please respond to these comments within ten business days by providing the requested
inform ation or advise us as soon as possible when you will respond. If you do not believe our
comments apply to your facts and circumstances, please tell us why in your response.
After reviewing your response to these comments, we may have additional comment s.
Schedule 13E -3
General
1. Please include the legend required by Rule 13e -3(e)(1)(iii).
2. In response to disclosure requirements required by SC 13E -3, please revise the proxy
statement to include information as of the most reasonable practicable date or completed
fiscal quarter ended March 31, 2015, as appropriate. For example, please update the
information required by Items 2 and 13 of SC 13 E-3.
Jeremy Curnock Cook
AmpliPhi Biosciences Corporation
June 15 , 2015
Page 2
Item 3. Identity and Background of Filing Person, page 3
3. Please provide the information required by Instruction C to Schedule 13E -3, including
the information required by Item 100 3(c) of Regulation M -A as to any natural person
specified in Instruction C to the schedule.
Item 13. Financial Statements, page 7
4. Please re fer to commen t 2, above and include the information required by Regulation M -
A as of the most recent quarterly report filed.
5. It appears that the Company is intending to incorporate by reference the information
required by Item 1010(a) of Regulation M -A. In circumstances where the filing person
elects to incorporate by reference the information required by Item 1010(a), all of the
summarized financial information required by Item 1010(c) must be disclosed in the
document furnished to security holders. See Instruction 1 to Item 13 of Schedule 13E -3.
Please revise to include summary financial statements and other applicable financial
information required by Item 1010(c)(1) through (6).
Schedule 14A
General
6. Consistent with Rule 13e -3(e)(1)(ii), please revis e to include a Special Factors section
prominently at the front of the disclosure document and include the information required
by Items 7,8 and 9 of SC 13 E-3.
7. Please include a Summary Term Sheet. Ref er generally to Item 1 of SC 13E -3 and
corresponding Item 1001 of Regulation M -A.
General Information…, page 7
8. Please i nclude a question and answer that references the potential going -private effect
associated with approval of the reverse stock split proposal. Please disclose the ratio, if
any, at which a going private effect would not be triggered. If all of the contemplated
ratios could result in a going private effect, revise to clearly state this fact.
Proposal No. 4, page 27
9. In an appropriate place in your discussion on page 27, expand the disclosure of the
background of the transaction to describe all discussions, meetings, contacts and reports
among the Board of Directors, affiliates and/or advisors regarding the proposal to ext end
your Board’s authorization to effect a reverse stock split of your common shares,
including:
Jeremy Curnock Cook
AmpliPhi Biosciences Corporation
June 15 , 2015
Page 3
the range of ratios considered to effectuate a reverse stock split;
advantages and disadvantages discussed, including the consideration given to the
impact on liquidity and the number of recordholders following a reverse stock split;
and
alternatives to a reverse stock split that could also accomplish the company’s stated
goals of increasing the minimum market price to above $3.00 .
Refer generally to Item 1013 of Regulation M -A and instructions thereto.
10. We note disclosure that you do not anticipate the number of recordholders to be reduced
significantly following the effec tuation of the reverse stock split. Please clarify the ratios
that would result in recordholders falling to below 300 and the consequences associated
therewith.
11. Clarify, if true, that although it is not the intent of the parties, the reverse split transaction
could trigger application of Rule 13e -3. Also, please clarify your plans should
recordholders fall below 300 as a result of effecting the reverse stock split. Disclose, for
example, whether the company will continue to file periodic reports even if it beca me
eligible to deregister under the Exchange Act.
12. Please revise your disclosure throughout to include the procedural and substantive
fairness discussion with respect to unaffiliated securityholders, which is required by Item
1014 of Regulation M -A. Please note that the factors li sted in Instruction 2 to Item 1014
of Regulation M -A are generally relevant to the Company´s fairness determination and
should be discussed in reasonable detail. See Question Nos. 20 and 21 of the Exchange
Act Release No. 34 -17719 (April 13, 1981). In this regard, we note the absence of such
disclosure in the Schedule 13E -3 and the preliminary proxy statement.
13. Please revise your disclosure to affirmatively state, after making reasonable inquiry,
whether you know how any of your executive officers, directo rs or affiliates currently
intends to vote subject securities, including any securities for which the person has proxy
authority. Refer to Item 1012(d) of Regulation M -A, including the instructions, thereto.
Purpose and Background of the Reverse Stock Sp lit, page 28
14. Please revise to provide the disclosure required by Item 7 of SC 13E -3 and corresponding
Item 1013 of Regulation M -A.
Principal Effects of the Reverse Stock Split on Common Stock; No Fractional Shares, page 29
15. Please revise to disclose the information regarding expenses as required by Item 1007(c)
of Regulation M -A.
Jeremy Curnock Cook
AmpliPhi Biosciences Corporation
June 15 , 2015
Page 4
No Dissenters Rights, page 32
16. We note your statement that shareholders are not entitled to appraisal rights under
applicable state law. If applicable, please revise to briefly outline any other rights that
may be available under applicable law for security holders who object to the transaction.
Refer to Item 1004(d) of Regulation M -A.
Required Approval, page 32
17. Please revise your disclosure on page 32 under the captio n “Required Approval” to
specifically state that the approval of at least a majority of unaffiliated security holders is
not required. Refer to Item 1014(c) of Regulation M -A.
18. Your disclosure states on page 32 that “ [t]he Board recommends a vote FOR
authorization of the reverse stock split at a ratio at least one -for-five and up to one -for-
fifty.” The preliminary proxy statement does not contain, however, disclosure whether
or not the Rule 13e -3 transaction was approved by a majority of your directors w ho are
not employed by you. Refer to Item 1014(e) of Regulation M -A.
Executive Compensation, page 37
19. Please disclose the cash payment you expect each director and officer to receive as a
result of the reverse stock split based on their current share own ership, individually, and
in the aggregate.
Form of Proxy Card
20. Please revise to indicate that the form of proxy card is a preliminary copy. See Rule 14a -
6(e)(1).
* * * * *
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 company 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.
In responding to our comments, please provide a written statement from the company
acknowledging that:
the company is responsible for the adequacy and accuracy of the disclosure in the filing;
Jeremy Curnock Cook
AmpliPhi Biosciences Corporation
June 15 , 2015
Page 5
staff comments or changes to disclosure in response to staff comments do not foreclose
the Commission from taking any action with respect to the filing; and
the company may not assert staff comments as a defense in any proceeding initiated by
the Commission or any person under the federal securities laws of the Uni ted States.
You may contact Staff Attorney Preston Brewer at (202) 551 -3969 or me at (202) 551 -
3715 with any questions.
Sincerely,
/s/ Mellissa Campbell Duru
Mellissa Campbell Duru
Special Counsel
Office of Mergers and Acquisitions
cc: Via E -Mail
Stephen Thau, Esq.
Morrison & Foerster LLP