1.
|
to elect Sonic’s [five] director nominees (the “Nominees”)2 to serve until the 2024 annual meeting of
stockholders or until their successors are elected and duly qualified;
|
2.
|
to ratify the selection, by the Audit Committee of the Board, of Ernst & Young LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31,
2021;
|
3.
|
to approve, on an advisory basis, the compensation of the Company’s named executive officers;
|
4.
|
to transact such other business as may properly come before the Annual Meeting or any adjournments or postponements thereof.
|
If you have any questions regarding your GREEN consent card or need assistance in
executing your consent, please contact
Saratoga Proxy Consulting, LLC
520 8th Avenue
New York, NY 10018
Stockholders may call toll-free: (888) 368-0379
Banks and brokers call: (212) 257-1311
info@saratogaproxy.com
|
1.
|
to elect all [five] of Sonic’s director nominees—Jean Bennett, Jodi Cook, Bard Geesaman, Annahita Keravala and Herbert Hughes (the “Nominees”)—to the Board to serve until the 2024 annual
meeting of stockholders or until their successors are elected and duly qualified;
|
2.
|
to ratify the selection, by the Audit Committee of the Board of Directors of the Company, of Ernst & Young LLP as the Company’s independent registered public accounting firm for the fiscal
year ending December 31, 2021;
|
3.
|
to approve, on an advisory basis, the compensation of the Company’s named executive officers;
|
4.
|
to transact such other business as may properly come before the Annual Meeting or any adjournments or postponements thereof.
|
•
|
If you are a “registered stockholder”, please sign and date the enclosed GREEN proxy card and return it to Sonic, c/o Saratoga Proxy Consulting, LLC, in the enclosed
postage-paid envelope today.
|
•
|
If you own shares in a brokerage account or through a bank, you are considered a “beneficial stockholder”, and the Sonic proxy materials, together with a voting instruction form (VIF), are being forwarded to
you by your broker or bank. As a “beneficial owner”, you must instruct your broker, trustee or other representative on how to vote your shares. Your broker cannot vote your shares on your behalf without receiving instructions from you.
|
•
|
Depending upon your broker or custodian’s voting policy, you may be able to vote either by toll-free telephone or by using the Internet. Please refer to the enclosed voting form for instructions on how to vote
electronically. You may also vote by signing, dating and returning the enclosed voting form in the pre-paid envelope provided to you.
|
•
|
Please do not sign or return any WHITE proxy card you may receive from the Company. If you have already submitted a WHITE proxy card, you have every right to change your vote and we encourage you to do so.
Please use the GREEN proxy card to vote by Internet or telephone or simply sign, date and return the GREEN proxy card. Only your latest dated proxy will be
counted.
|
If you have any questions regarding your GREEN consent card or need assistance in
executing your consent, please contact
Saratoga Proxy Consulting, LLC
520 8th Avenue
New York, NY 10018
Stockholders may call toll-free: (888) 368-0379
Banks and brokers call: (212) 257-1311
info@saratogaproxy.com
|
•
|
On March 15, 2021, Sonic sent letters to the Board, outlining its concerns with the management and oversight of the Company and stating its intent to nominate five nominees at the upcoming Annual Meeting (the “March 15 Letters”).
|
•
|
On March 15, 2021, Kleinberg, Kaplan, Wolff & Cohen, P.C. (“Kleinberg”), counsel to Sonic, emailed Cooley LLP (“Cooley”), counsel to the Company, requesting a discussion regarding the contents of the March
15 Letters. Cooley responded that it was not available on March 15 for such a call, and proposed a March 16 call.
|
•
|
On March 16, 2021, Kleinberg had a call with Cooley and Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden”), co‑counsel to the Company, discussing the contents of the March 15 Letters and the upcoming
Annual Meeting. During the call, co-counsel indicated that based on recent public disclosure the Company intended to run only two directors at the Annual Meeting, although they understood why Sonic nominated five candidates. On March 17, the
Company announced that it was running three directors.
|
•
|
On March 16, 2021, Lawrence Kam (“Mr. Kam”) had a call with James Scopa (“Mr. Scopa”), a director of the Company, during which Mr. Kam and Mr. Scopa discussed the contents of the March 15 Letters. Mr. Scopa
indicated that the Company would be running only two directors at the Annual Meeting, and indicated that the Company would like to set up a call with Mr. Kam for Monday, March 22, 2021, whereby certain directors would share important
confidential information that would make Mr. Kam reconsider running a proxy fight. While Mr. Kam agreed to schedule this call, the Company never followed up.
|
•
|
On March 16, 2021, Sonic sent a request for books and records under Section 220 of the Delaware General Corporation Law (the “Gasmi 220 Demand”) to the Company requesting information related to Dr. Mehdi
Gasmi, a director and former President and former CSO of the Company.
|
•
|
On March 17, 2021, the Company made the unilateral decision to publicly filed the March 15 Letters, and indicated its intent to run three candidates at the Annual Meeting—Dawn Svoronos, Reed Tuckson, and Thomas
Woiwode, despite contrary disclosure in its recent 10-K that Adverum would be running only two directors.
|
•
|
On March 17, 2021, Kleinberg sent a letter to Skadden and Cooley advising that, because the Company has not taken any specific action to shrink the size of the Board and reduce the current legally available
number of five available seats, Sonic intended to run all five of its Nominees, and requesting that the Company take no defensive actions that might impair the ability of stockholders to vote on all five of the highly qualified Nominees.
|
•
|
On March 24, 2021, Sonic sent to Peter Soparkar (“Mr. Soparkar”), Secretary of the Company, its formal nomination letter as required by the bylaws of the Company, formally nominating four of its Nominees—Jean
Bennett, Jodi Cook, Bard Geesaman and Annahita Keravala.
|
•
|
On March 25, 2021, Sonic sent to Mr. Soparkar a supplement to its nomination letter, formally nominating Herbert Hughes. Collectively with the four candidates nominated by Sonic on March 24, Sonic has
successfully nominated five highly qualified Nominees.
|
•
|
On March 25, 2021, Skadden sent Sonic a letter declining to provide the documents requested by the Gasmi 220 Demand.
|
•
|
On April 6, 2021, Skadden and Cooley contacted Kleinberg stating that the Board's Nominating and Corporate Governance Committee may wish to interview certain of Sonic’s Nominees and requesting contact
information for the proposed Nominees.
|
•
|
On April 7, 2021, Sonic filed a preliminary proxy statement.
|
•
|
On April 9, 2021, Sonic sent two requests for books and records under Section 220 of the Delaware General Corporation Law to the Company requesting information related to Dr. Mehdi Gasmi and requesting
stockholder lists as of any Record Date set in connection with the Annual Meeting.
|
Nature of Transaction
|
Number of Shares Purchased/(Sold)
|
Date of Purchase/Sale
|
|
The Sonic Fund II, L.P.
|
|||
Purchase of Common Stock
|
500,000
|
3/19/2021
|
|
Purchase of Common Stock
|
150,000
|
3/8/2021
|
|
Purchase of Common Stock
|
50,000
|
3/4/2021
|
|
Purchase of Common Stock
|
150,000
|
3/3/2021
|
|
Purchase of Common Stock
|
100,000
|
3/2/2021
|
|
Purchase of Common Stock
|
139,632
|
2/26/2021
|
|
Purchase of Common Stock
|
173,295
|
2/25/2021
|
|
Purchase of Common Stock
|
22,480
|
2/23/2021
|
|
Purchase of Common Stock
|
65,143
|
2/22/2021
|
|
Purchase of Common Stock
|
50,000
|
2/12/2021
|
|
Purchase of Common Stock
|
49,731
|
2/1/2021
|
|
Sale of Common Stock
|
(100,000)
|
1/28/2021
|
|
Purchase of Common Stock
|
100,000
|
12/29/2020
|
|
Purchase of Common Stock
|
100,000
|
12/28/2020
|
|
Purchase of Common Stock
|
200,000
|
12/17/2020
|
|
Purchase of Common Stock
|
200,000
|
12/16/2020
|
|
Purchase of Common Stock
|
11,711
|
11/17/2020
|
|
Purchase of Common Stock
|
380,209
|
11/16/2020
|
|
Sale of Common Stock
|
(100,000)
|
10/1/2020
|
|
Sale of Common Stock
|
(100,000)
|
9/25/2020
|
|
Sale of Common Stock
|
(200,000)
|
9/24/2020
|
|
Sale of Common Stock
|
(100,000)
|
9/22/2020
|
|
Sale of Common Stock
|
(100,000)
|
9/21/2020
|
|
Sale of Common Stock
|
(50,000)
|
8/24/2020
|
|
Sale of Common Stock
|
(100,000)
|
8/21/2020
|
|
Sale of Common Stock
|
(100,000)
|
8/20/2020
|
|
Sale of Common Stock
|
(2,488)
|
8/19/2020
|
|
Purchase of Common Stock
|
100,000
|
8/11/2020
|
|
Sale of Common Stock
|
(200,000)
|
7/31/2020
|
|
Sale of Common Stock
|
(100,000)
|
7/20/2020
|
|
Purchase of Common Stock
|
200,000
|
7/16/2020
|
|
Sale of Common Stock
|
(100,000)
|
7/8/2020
|
|
Sale of Common Stock
|
(50,000)
|
7/7/2020
|
|
Sale of Common Stock
|
(200,000)
|
5/14/2020
|
|
Sale of Common Stock
|
(200,000)
|
5/13/2020
|
Sale of Common Stock
|
(100,000)
|
5/6/2020
|
|
Purchase of Common Stock
|
200,000
|
4/29/2020
|
|
Purchase of Common Stock
|
100,000
|
4/28/2020
|
|
Purchase of Common Stock
|
100,000
|
4/27/2020
|
|
Purchase of Common Stock
|
100,000
|
4/24/2020
|
|
Purchase of Common Stock
|
200,000
|
4/23/2020
|
|
Purchase of Common Stock
|
200,000
|
4/22/2020
|
|
Purchase of Common Stock
|
100,000
|
4/9/2020
|
|
Purchase of Common Stock
|
100,000
|
4/8/2020
|
|
Purchase of Common Stock
|
100,000
|
4/7/2020
|
|
Sale of Common Stock
|
(200,000)
|
4/3/2020
|
|
Sale of Common Stock
|
(100,000)
|
4/2/2020
|
|
Sale of Common Stock
|
(199,600)
|
4/1/2020
|
|
Purchase of Common Stock
|
50,000
|
3/31/2020
|
|
Purchase of Common Stock
|
50,000
|
3/26/2020
|
|
Purchase of Common Stock
|
100,000
|
3/25/2020
|
|
Sale of Common Stock
|
(100,000)
|
3/23/2020
|
|
Sale of Common Stock
|
(500,000)
|
3/19/2020
|
|
Sale of Common Stock
|
(200,000)
|
3/18/2020
|
|
Sale of Common Stock
|
(300,000)
|
3/17/2020
|
|
Sale of Common Stock
|
(330,857)
|
3/13/2020
|
|
Sale of Common Stock
|
(200,000)
|
3/9/2020
|
|
Sale of Common Stock
|
(400,000)
|
3/6/2020
|
|
Purchase of Common Stock
|
400,000
|
2/12/2020
|
|
Purchase of Common Stock
|
95,000
|
9/12/2019
|
|
Purchase of Common Stock
|
300,000
|
7/18/2019
|
|
Purchase of Common Stock
|
100,000
|
4/16/2019
|
|
Purchase of Common Stock
|
200,000
|
4/15/2019
|
|
Lawrence Kam
|
|||
Sale of Common Stock
|
(15,000)
|
1/8/2021
|
|
Sale of Common Stock
|
(10,000)
|
1/7/2021
|
|
Sale of Common Stock
|
(10,000)
|
1/4/2021
|
|
Sale of Common Stock
|
(5,000)
|
12/30/2020
|
|
Sale of Common Stock
|
(15,000)
|
10/8/2020
|
|
Sale of Common Stock
|
(41,320)
|
3/16/2020
|
|
Purchase of Common Stock
|
10,000
|
8/5/2019
|
|
Lawrence Kam (IRA)
|
|||
Purchase of Common Stock
|
18,330
|
9/10/2019
|
|
Annahita Keravala
|
|||
Sale of Common Stock
|
(1,000)
|
06/17/2020
|
|
Sale of Common Stock
|
(1,000)
|
05/06/2020
|
|
Sale of Common Stock
|
(1,000)
|
07/09/2019
|
|
Sale of Common Stock
|
(1,269)
|
05/30/2019
|
|
Sale of Common Stock
|
(1,000)
|
05/17/2019
|
|
Sale of Common Stock
|
(1,500)
|
05/16/2019
|
|
Sale of Common Stock
|
(2,217)
|
05/07/2019
|
Name of Beneficial Owner
|
|
|
Total Beneficial
Ownership
|
|
|
Percentage
of
Common
Stock
Beneficially
Owned
|
|||
5% and Greater Stockholders
|
|
|
|
|
|||||
Entities affiliated with RA Capital Management, L.P.(1)
|
|
|
9,502,383
|
|
|
[ ]%
|
|||
Avoro Capital Advisors LLC(2)
|
|
|
8,000,000
|
|
|
[ ]%
|
|||
Entities affiliated with RTW Investments, LP(3)
|
|
|
7,227,364
|
|
|
[ ]%
|
|||
Entities affiliated with BlackRock, Inc.(4)
|
|
|
7,042,768
|
|
|
[ ]%
|
|||
Entities affiliated with The Sonic Fund II, L.P.(5)
|
|
|
6,131,432
|
|
|
[ ]%
|
|||
Entities affiliated with OrbiMed Capital LLC(6)
|
|
|
5,501,144
|
|
|
[ ]%
|
|||
Entities affiliated with Versant Ventures IV, LLC(7)
|
|
|
5,068,233
|
|
|
[ ]%
|
|||
Executive Officers and Directors
|
|
|
|
|
|||||
Laurent Fischer(8)
|
|
|
[ ]
|
|
|
[ ]
|
|||
Leone Patterson(9)
|
|
|
[ ]
|
|
|
[ ]%
|
|||
Aaron Osborne, MBBS(10)
|
|
|
[ ]
|
|
|
[ ]
|
|||
Angela Thedinga(11)
|
|
|
[ ]
|
|
|
[ ]
|
|||
Eric G. Carter, M.D., Ph.D.(12)
|
|
|
[ ]
|
|
|
[ ]
|
|||
Mehdi Gasmi, Ph.D.(13)
|
|
|
[ ]
|
|
|
[ ]%
|
|||
Rekha Hemrajani(14)
|
|
|
[ ]
|
|
|
[ ]
|
|||
Mark Lupher, Ph.D.(15)
|
|
|
[ ]
|
|
|
[ ]
|
|||
Patrick Machado(16)
|
|
|
[ ]
|
|
|
[ ]
|
|||
James Scopa(17)
|
|
|
[ ]
|
|
|
[ ]
|
|||
Dawn Svoronos(18)
|
|
|
[ ]
|
|
|
[ ]
|
|||
Reed V. Tuckson(19)
|
|
|
[ ]
|
|
|
[ ]
|
|||
Scott M. Whitcup, M.D.(20)
|
|
|
[ ]
|
|
|
[ ]
|
|||
Thomas Woiwode, Ph.D.(21)
|
|
|
[ ]
|
|
|
%
|
|||
All directors and current executive officers as a group (14 persons)(22)
|
|
|
[ ]
|
|
|
[ ]%
|
|||
*
|
Indicates beneficial ownership of less than 1% of the total outstanding common stock.
|
(1)
|
Based on a Schedule 13G filed with the SEC on February 16, 2021 (the “RA 13G”), each of RA Capital Management, L.P. (“RA Capital”), Peter Kolchinsky and Rajeev Shah may be deemed to beneficially own all of the shares,
and RA Capital Healthcare Fund, L.P. (the “Fund”) beneficially owns 8,647,957 of the shares. RA Capital Healthcare Fund GP, LLC is the general partner of the Fund.
|
The general partner of RA Capital is RA Capital Management GP, LLC, of which Dr. Kolchinsky and Mr. Shah are the controlling persons. RA Capital serves as investment adviser for the Fund and a separately managed
account that holds 854,426 of the shares. The Fund disclaims beneficial ownership of the shares it holds, and each of RA Capital, Dr. Kolchinsky and Mr. Shah disclaims ownership of the shares. The address for each of the reporting persons is RA
Capital Management, L.P., 200 Berkeley Street, 18th Floor, Boston MA 02116. The RA 13G provides information only as of December 31, 2020 and, consequently, the beneficial ownership information identified in the RA 13G may have changed since
December 31, 2020.
|
(2)
|
Based on a Schedule 13G/A filed with the SEC on February 12, 2021 (the “Avoro 13G”), Avoro Capital Advisors LLC and Behzad Aghazadeh may each be deemed to beneficially own all of the shares and each have sole voting
and dispositive power over all of the shares. Avoro Capital Advisors, LLC provides investment advisory and management services and acquired the shares on behalf of Avoro Life Sciences Fund, LLC and certain managed accounts. Behzad Aghazadeh is
the portfolio manager and controlling person of Avoro Capital Advisors LLC. The address for each of the reporting persons is 110 Greene Street, Suite 800, New York, NY 10012. The Avoro 13G provides information only as of December 31, 2020 and,
consequently, the beneficial ownership information identified in the Avoro 13G may have changed since December 31, 2020.
|
(3)
|
Based on a Schedule 13G filed with the SEC on February 12, 2021 (the “RTW 13G”), each of RTW Investments, LP and Roderick Wong may be deemed to beneficially own all of the shares, and RTW Master Fund, Ltd. may be
deemed to beneficially own 5,518,874 of the shares. Each of RTW Investments, LP, Roderick Wong and RTW Master Fund, Ltd. have shared voting power and shared dispositive power over the shares they are deemed to beneficially own. The shares are
held by RTW Master Fund, Ltd. and one or more other funds (together the “Funds”), which are managed by RTW Investments, LP (the “Adviser”). The Adviser, in its capacity as the investment manager of Funds, has the power to vote and the power to
direct the disposition of the shares held by the Funds. Accordingly, for the purposes of Reg. Section 240.13d-3, the Adviser may be deemed to beneficially own the shares. Roderick Wong is the Managing Partner of the Adviser. The address of RTW
Investments, LP and Roderick Wong is 40 10th Avenue, Floor 7, New York, NY 10014, and the address for RTW Master Fund, Ltd. is c/o Intertrust Corporate Services (Cayman) Limited, 190 Elgin Avenue, Georgetown, Grand Cayman KY1-9001, Cayman
Islands. The RTW 13G provides information only as of December 31, 2020 and, consequently, the beneficial ownership information identified in the RTW 13G may have changed since December 31, 2020.
|
(4)
|
Based on a Schedule 13G/A filed with the SEC on January 29, 2021 (the “BlackRock 13G”), BlackRock Inc., as a parent holding company or control person, may be deemed to beneficially own all of the shares. BlackRock
Inc. has sole voting power over 6,954,131 of the shares and sole dispositive power over all of the shares. The address for BlackRock Inc. is 55 East 52nd Street, New York, NY 10055. The BlackRock 13G provides information only as of December 31,
2020 and, consequently, the beneficial ownership information identified in the BlackRock 13G may have changed since December 31, 2020.
|
(5)
|
Based on a Schedule 13D filed with the SEC on March 18, 2021 (the “Sonic 13D”), The Sonic Fund II, L.P. (“Sonic”) beneficially owns 6,052,068 of the shares and Lawrence Kam may be deemed to beneficially own all of the
shares. Sonic has shared voting and dispositive power over the shares it is deemed to beneficially own, and Mr. Kam has sole voting and dispositive power over 57,984 of the shares he is deemed to beneficially own and shared voting and
dispositive power over 6,073,448 of the shares he is deemed to beneficially own. Mr. Kam is the general partner of Sonic, and by virtue of this relationship, Mr. Kam may be deemed to beneficially own the shares owned directly by Sonic. The
address for the reporting persons is 400 Hobron Lane, Suite 3709, Honolulu, HI 96815. The Sonic 13D provides information only as of March 15, 2021 and, consequently, the beneficial ownership information identified in the Sonic 13D may have
changed since March 15, 2021.
|
(6)
|
Based on a Schedule 13G/A filed with the SEC on February 12, 2021 (the “OrbiMed 13G”), OrbiMed Capital LLC beneficially owns 4,845,247 of the shares and OrbiMed Advisors LLC beneficially owns 655,897 of the shares.
OrbiMed Capital LLC has sole voting and dispositive power over the shares it beneficially owns and Orbimed Advisors LLC has shared voting and dipositive power over the shares it beneficially owns. The address for each of the reporting persons
is 601 Lexington Avenue, 54th Floor, New York, NY 10022. The OrbiMed 13G provides information only as of December 31, 2020 and, consequently, the beneficial ownership information identified in the OrbiMed 13G may have changed since December 31,
2020.
|
(7)
|
Based on a Schedule 13D/A filed with the SEC on December 23, 2020 (the “Versant 13D”), Versant Ventures IV, LLC (“VV IV”) beneficially owns 5,003,892 of the shares, Versant Venture Capital IV, L.P. (“VVC IV”)
beneficially owns 4,972,544 of the shares, Versant Side Fund IV, L.P. (“VSF”) beneficially owns 31,348 of the shares, and Versant Venture Management (“VVM”), LLC beneficially owns 64,341 of the shares. VV IV has shared voting power and shared
dispositive power over the shares it is deemed to beneficially own, and each of VVC IV, VSF and VVM have sole voting and dispositive power over the shares they are deemed to beneficially own. VV IV is the sole general partner of VVC IV and VSF
IV. Dr. Woiwode, a member of our Board, is a managing director of VV IV. The address of each of the reporting persons is c/o Versant Ventures, One Sansome Street, Suite 3630, San Francisco, California 94104. The Versant 13D provides information
only as of December 14, 2020 and, consequently, the beneficial ownership information identified in the Versant 13D may have changed since December 14, 2020.
|
(8)
|
[ ]
|
|
(9)
|
[ ]
|
|
(10)
|
[ ]
|
|
(11)
|
[ ]
|
|
(12)
|
[ ]
|
|
(13)
|
[ ]
|
|
(14)
|
[ ]
|
|
(15)
|
[ ]
|
|
(16)
|
[ ]
|
|
(17)
|
[ ]
|
|
(18)
|
[ ]
|
|
(19)
|
[ ]
|
|
(20)
|
[ ]
|
|
(21)
|
[ ]
|
|
(22)
|
[ ]
|
•
|
SIGNING the enclosed GREEN proxy card
|
•
|
DATING the enclosed GREEN proxy card, and
|
•
|
MAILING the enclosed GREEN proxy card TODAY in the envelope provided (no postage is required if mailed in
the United States).
|
If you have any questions regarding your GREEN consent card or need assistance in
executing your consent, please contact
Saratoga Proxy Consulting, LLC
520 8th Avenue
New York, NY 10018
Stockholders may call toll-free: (888) 368-0379
Banks and brokers call: (212) 257-1311
info@saratogaproxy.com
|
1.
|
Sonic’s proposal to elect Directors:
|
FOR ALL
NOMINEES
|
WITHHOLD
AUTHORITY TO
VOTE FOR ALL
NOMINEES
|
FOR ALL
EXCEPT
NOMINEE(S)
WRITTEN
BELOW
|
||
Nominees:
|
Jean Bennett
Jodi Cook
Bard Geesaman
Annahita Keravala
Herbert Hughes
|
[ ]
|
[ ]
|
[ ]
|
2.
|
The Company’s proposal to ratify the selection of Ernst & Young LLP as the Company’s independent registered public accounting firm:
|
|
FOR
|
AGAINST
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ABSTAIN
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[ ]
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[ ]
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[ ]
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3.
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The Company’s proposal to approve, by advisory vote, the compensation of named executive officers:
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FOR
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AGAINST
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ABSTAIN
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[ ]
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[ ]
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[ ]
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Christopher P. Davis
E-Mail: cdavis@kkwc.com
Direct Dial: 212.880.9865
|
Re: |
Adverum Biotechnologies, Inc. (the “Company”)
PREC14A preliminary proxy statement filing made on Schedule 14A Filed on April 7, 2021, by The Sonic Fund II, L.P. et al. File No. 001-36579 |
1.
|
Section 14(a), by its terms, applies to “any person” who solicits or “permit[s] the use of his name to solicit any proxy or consent…” and requires such
persons to comply with Regulation 14A. Please advise us, with a view toward revised disclosure, why the cover page of Schedule 14A does not identify you as a person filing the proxy statement. On the basis of your service as general
partner of Sonic Fund II alone, it appears you may be a participant as determined under Instruction 3 to Item 4 of Schedule 14A. We also note that the narrative within the proxy statement characterizes you as a participant when the term
is defined for purposes of this proxy statement. Refer to Rule 14a-101 of Regulation 14A.
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Nicholas P. Panos
April 13, 2021
Page 2
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2.
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Please advise us if the participants anticipate distributing their proxy statement before the registrant distributes its proxy statement. Given that reliance on Rule
14a-5(c) is impermissible at any time before the registrant distributes its proxy statement, the participants will accept all legal risk in connection with distributing the initial definitive proxy statement without all required
disclosures. Please confirm the participants will subsequently provide any omitted information in a supplement in order to mitigate that risk.
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3.
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The chronology begins with an entry dated March 15, 2021. Please advise us, with a view toward revised disclosure, how this date was selected as the first materially
relevant date.
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4.
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The participants explain a vote to elect their nominees “will have the legal effect of replacing up to three incumbent directors, and filling two additional vacancies on
the Board.” Given the registrant’s representation that only three director seats will be available, please also revise to state, if true, that any dispute regarding the number of director seats available will be settled in a court of
competent jurisdiction. To further obviate the risk security holders may believe voting for all five director candidates could unequivocally result in the maximum of all five nominees being elected, please include clarifying disclosure
explaining as few as three of the participants’ five nominees may be elected at the annual meeting even if all five director candidates receive sufficient shareholder support for their election.
|
Nicholas P. Panos
April 13, 2021
Page 3
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5.
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The statement explaining that if all of its nominees are elected, “such Nominees will represent a minority of the [ ] Board and there can be no assurance that any
actions or changes proposed by our Nominees will be adopted or supported by the full Board” appears to be in need of further qualification. If the instant counter-solicitation is successful, and three of Sonic’s nominees join two current
members of the Board that Sonic has previously designated, the newly-constituted Board would then be comprised of five of nine directors. Given that potential election outcome, a majority of directors not nominated by the registrant will
have originated through Sonic’s proactive involvement. Please revise or advise.
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6.
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Please refer to the following representation: “…through the date hereof, its expenses in connection with this
solicitation are approximately…” This formulation suggests that the expenses could be limited to a single entity, such as Saratoga. Please be advised that Item 4(b) of Schedule 14A requires disclosure of all expenses incidental to the
conduct of the solicitation, including fees for attorneys, incurred by the participants. Please remove the potential implication that the proxy solicitor expenses have been limited to only the planned reporting of solicitation expenses.
See Instruction 1 to Item 4(b) of Schedule 14A.
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7.
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The disclosure indicates that “[e]ach Participant in this solicitation is a member of a ‘group’ with the other Participants for the purposes of Section 13(d)(3)…” The
amendment to Schedule 13D filed by certain participants on April 9, 2021, however, did not include all of the participants as joint filers. Please revise the preliminary proxy statement to reconcile this inconsistency. For example, the
reference to “each participant” should be qualified to indicate, if true, that the participants believe that only the participants who are beneficial owners may be considered members of a group as determined under Section 13(d)(3).
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Nicholas P. Panos
April 13, 2021
Page 4
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8.
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Please refer to the following representation appearing in bold typeface: “If no direction is indicated with respect to the proposals on the reverse, this proxy will be
voted…” At present, the disclosure only implies that proxies will be voted by identifying the contingency to which the proxy holders will be subject to voting in accordance with their stated preference. Please revise to explicitly
provide, subject to reasonable specified conditions, that the shares represented by the proxy will be voted and that where the person solicited specifies a choice, the proxy will be voted in accordance with the specifications so made. See
Rule 14a-4(e) of Regulation 14A.
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Very truly yours,
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/s/ Christopher P. Davis
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Christopher P. Davis
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