United States securities and exchange commission logo
June 10, 2024
David Hung, M.D.
President and Chief Executive Officer
Nuvation Bio Inc.
1500 Broadway, Suite 1401
New York, NY 10036
Re: Nuvation Bio Inc.
Preliminary Proxy
Statement on Schedule 14A
Filed May 24, 2024
File No. 001-39351
Dear David Hung:
We have reviewed your
filing and have the following comments.
Please respond to this letter within ten business days by
providing the requested
information or advise us as soon as possible when you will respond. If
you do not believe a
comment applies to your facts and circumstances, please tell us why in
your response.
After reviewing your
response to this letter, we may have additional comments.
Preliminary Proxy Statement on Schedule 14A, Filed May 24, 2024
Proposal 4, page 39
1. We note that Proposal 4
seeks stockholder approval for the conversion of Series A
Convertible Preferred
Stock into Class A Common Stock. We further note that you issued
this convertible
preferred stock as consideration in your April 9, 2024 merger with
AnHeart Therapeutics
Ltd and that this conversion vote for the merger consideration is
required by NYSE rules.
Given that you did not solicit your pre-merger stockholders to
approve either the
merger or the merger consideration, please revise your preliminary
proxy statement to
include all of the information concerning the merger that is required by
Items 11, 13, and 14 of
Schedule 14A. For guidance refer to Note A to Schedule 14A.
2. Discuss the material
tax consequences to stockholders resulting from the two mergers.
3. Please revise to
restore all disclosures concerning the fairness opinion and provide all
disclosures required by
Regulation M-A, Item 1015.
David Hung, M.D.
FirstName LastNameDavid Hung, M.D.
Nuvation Bio Inc.
Comapany
June NameNuvation Bio Inc.
10, 2024
June 10,
Page 2 2024 Page 2
FirstName LastName
Background of the Merger, page 39
4. With reference to the January 10 entry, please revise to disclose the
initial terms presented
to AnHeart. Without limitation, it should be clear how the equity
split discussed on
January 10 compared to the one-third/two-thirds equity split included
in Nuvation s
January 24 letter of intent. Revise the remainder of the Background
section, as applicable,
to discuss the negotiations and discussions concerning the merger
consideration.
5. Revise to explain the negotiations and discussions regarding the
structure of the mergers.
Without limitation, explain whether one or both parties pushed for or
against the
Traditional Structure that would have allowed your stockholders
to approve or
disapprove of the merger or the merger consideration prior to closing.
Also, discuss the
reasons why the parties agreed to conduct two mergers instead of just
one.
6. With reference to the disclosure at the bottom of page 44, revise to
present the discussions
and negotiations concerning the terms of the convertible preferred
stock, including the
existence, size and timing of the annual dividend which would become
payable to
preferred holders if the pre-Merger Nuvation stockholders do not
approve the Conversion
Proposal.
7. With a view to disclosure, please tell us whether the parties
discussed and negotiated the
combined company s future operational plan, including which product
candidate(s) would
be prioritized in the near term and the funding amounts needed to do
so.
Reasons for the Merger, page 41
8. Revise to discuss how the Board determined that the equity split was
fair to the pre-
Merger Nuvation stockholders. Clarify whether the Board and/or its
advisors valued the
respective businesses and, if so, what the respective valuations were
and how they were
derived. Also, discuss AnHeart s business, operations, financial
condition, earnings and
prospects, all of which were factors considered by the Board.
Discuss, as applicable, all
material assumptions concerning commercialization of AnHeart s
pipeline candidates,
including applicable time horizon(s).
9. Please tell us whether/how the Board weighed the inability of
stockholders to approve or
disapprove of the merger consideration prior to closing. In this
regard we note that the
Traditional Structure, if adopted, would have allowed stockholders to
prevent the Merger
or to influence the boards decision to close the Merger.
10. Please tell us whether the Board, in reaching its determination about
the Merger,
considered negative factors stemming from its decision to structure
the Merger with
convertible preferred securities instead of common stock. With
reference to the disclosure
at the bottom of page 44, we note that the Board s current
recommendation that pre-
Merger stockholders approve the Conversion Proposal is based on
negative features of the
convertible preferred stock.
David Hung, M.D.
Nuvation Bio Inc.
June 10, 2024
Page 3
We remind you that the company 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 contact Jessica Dickerson at 202-551-8013 or Joe McCann at
202-551-6262 with
any questions.
Sincerely,
FirstName LastNameDavid Hung, M.D.
Division of
Corporation Finance
Comapany NameNuvation Bio Inc.
Office of Life
Sciences
June 10, 2024 Page 3
cc: Melissa H. Boyd, Esq.
FirstName LastName