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I don't believe the trial will fail. My argument with anders is about the interpretation of U.S. Securities laws and regulations and has nothing to do with my expectations with respect to the data or NWBO's stock price appreciation after we receive "positive" TLD.
If the DVAX-L Phase III trial "fails," it's definitely material and requires prompt disclosure. But a failed trial is not in and of itself a Form 8-K triggering event, even though the results will be disclosed on Form 8-K, likely under Item 7.01 in connection with a press release (or both items).
I've never said that a company can do "whatever the hell they want." I've said that TLD is not an item specifically addressed by Form 8-K and is not subject to a hard and fast 4 business day disclosure requirement.
One of us is definitely a fool, no question about that :)
He's also horribly wrong. He thinks that the trading that goes on everyday on the OTC market is the same as the company selling its shares directly to investors via a public offering or a PIPE transaction.
"but no obligation on timeline really? So they can just keep selling shares and going on with business a usual whereas they are technically bankrupted?
4 business days"
Geez anders, really??? NWBO is NOT "selling shares" right now!!! If NWBO wants to conduct an offering, then OF COURSE they have to disclose all material, nonpublic info, which OBVIOUSLY would include TLD!
Furthermore, as bioinvestor mentioned, the whole concept of "negative" vs. "positive," TLD is not always cut and dry, so to say that NWBO will be "technically bankrupted" if they have "negative" TLD may not be accurate. As I assume you know, sometimes clinical trial data is noisy, especially TLD. Without digesting the data and talking to the FDA, key opinion leaders, etc., they may not even know within 4 days of receiving TLD how to talk about it or how they should draft the press release around it. TLD by itself, without some context, may not be helpful to the vast majority of investors. In today's kinder and gentler FDA, you can miss your endpoints and still have an approvable drug. I'm not suggesting that NWBO is in this situation, by the way.
"A failed Phase 3 study is a trial where management should have been aware that FDA approval is highly unlikely. That is the definition of the moment of awareness of a failed trial."
If NWBO sees TLD and knows that DVAX-L is a failure and has no hope for approval from the FDA, then yes, they should tell us immediately, and every day that goes by with them not disclosing the failed trial creates more plaintiffs for the shareholders derivative suit. But can you say for certain that the company can reach the conclusion that FDA approval is highly unlikely in all circumstances within 4 business days of receiving TLD? What if the company needs to talk to the FDA? Do you think they are on stand by to grant meeting requests within days of receiving them?
There is a reason that Form 8-K lists the items that MUST be disclosed on Form 8-K within a certain time period, and why other material, nonpublic info is permitted to be disclosed in other manners and in accordance with other timing considerations.
I totally agree that they have a duty to disclose and that they should do so as soon as they practically can.
My point is just that there is no hard and fast deadline on the number of days that they have to disclose TLD (positive or negative) because TLD by itself doesn't trigger a mandatory Form 8-K filing obligation.
Only if they included a valuation of DVAX-L on their balance sheet, which they haven't. Item 2.06 disclosures are made when a company has to take a significant write down on a tangible or intangible asset (i.e., goodwill) where the valuation of such asset was previously disclosed.
Item 2.06 is an accounting concept. If NWBO's trial fails, the stock price will certainly be "materially impaired," as you and I use the term. But that isn't what this disclosure item is for. There's a reason that company's don't disclose failed trials via Item 2.06 of Form 8-K.
GGB, please see post #334467. I was agreeing with the two statements of yours that I quoted in a manner that is popular on multiple other message boards that I read. Sorry for the confusion!
With respect to your call on topline in the 2nd half of 2021, I don't agree with that. I think it will be within the next 2 weeks. But who knows? I just believe that 10 weeks is more than enough time for TLD, and I'm convinced the company thinks that too, hence the agreement with certain warrant holders to push back the ability to exercise until Dec. 15.
What I meant was that my post, which you responded to, was not intended for you. I know that you are set in your beliefs regarding your interpretation of our laws. It was meant for the benefit of others who might be confused on the issue. By all means, post away on whatever topic you like. I would never suggest otherwise!
In the grand scheme of things, all of this 8-K and 10-Q talk doesn't matter. I just have a hard time reading incorrect interpretations of SEC rules and regulations, whether they be from you or other posters. I should probably just go back to lurking.
Sorry, I was emphatically agreeing with those 2 statements.
"Given the history of the SEC in policing corporations, I think it's funny how everyone is so adamant about the SEC preventing corporations from exploiting retail."
THIS!
"For the record, I do not believe the DCVax-L trial failed. I'm just arguing the point..."
AND THIS!
I believe TLD is imminent, and I believe it will be positive.
LOL. I wasn't talking to you, anders. I've read what you've posted. You can believe whatever you want. But, you are wrong. The cases you cited do not establish a hard and fast rule that a company has to disclose negative TLD via Form 8-K within 4 business days.
It's certainly "best practices" to release positive or negative TLD immediately. Like within a day or 2 at most. And for each day that passes, a company is more likely to have problems if the SEC initiates an enforcement action against them.
My main point is to put to bed the nonsense that somehow this investment has been derisked because the company hasn't issued a Form 8-K stating that the trial failed.
This is true, but "in a timely manner" doesn't necessarily mean 4 business days. If you read the Form 8-K form on the SEC's website, a failed Phase III trial doesn't trigger any of the mandatory Form 8-K disclosure requirements. It could be disclosed under Item 8.01, but it doesn't have to be.
By the way, I'm not implying that you are one of the ones that believes that a Form 8-K absolutely must be filed within 4 business days if the trial failed...I'm just stating it generally for the benefit of the group.
They definitely have a duty to disclose the TLD in a timely manner, whether positive or negative. If they are holding TLD, they can't issue securities OR extend the warrants again. So if you see the warrants get extended again, they almost certainly don't have TLD yet...only way they could do that is if all of the warrant holders that agree to the extension sign confidentiality agreements, and as a practical matter, there are too many people involved to do something like that, in my opinion.
Caveat to all of this is that NWBO doesn't seem to care much about SEC disclosure requirements.
It is not a true statement. The SEC won't know if the trial failed until NWBO issues a press release announcing TLD.
What I am suggesting is just that there will not be an immediate buyout that follows TLD, at least not at $10+ billion. All of Big Pharma are public companies, and it is very unlikely that any of them will pay premiums over 100%. I also don't believe they will start negotiating in earnest with any potential acquirors until TLD is released.
I'm not saying the NWBO isn't worth a large multiple over its current market cap. I believe that it will be with good TLD, just not immediately. However, I think it will be much easier for everyone to have patience for if we have positive TLD and a $4+ share price to work up from.
To your point about private companies, yes, it is much easier for a public company to purchase a private company than it is to do a deal when both the purchaser and target are public, for lots of reasons. Valuation takes care of itself in both instances, but there's way more scrutiny on all aspects of a transaction when both companies are public, especially on valuation.
The largest premium ever paid in a buyout of a public company was 500%. Market cap absolutely matters. Big pharma isn't going to give NWBO a 700% or more premium. That's just not going to happen.
However, if the price spike to $4 or $5 on TLD and rises a bit from there over the next couple weeks/months, then a buyout could happen at $10+ per share.
If TLD is good, this company will definitely be sold in the near future, but it won't be immediately. The other option is a partnership agreement that values the company somewhere in the multiple billions...that's more likely than an immediate purchase at 5X (or more) premium.
The more short interest, the greater the short squeeze. I lend my shares out...I'm getting 14% interest at the moment. At this stage of my investment, I'm all for more short interest...not so much at an earlier stage when I know a company will need more access to capital in the near future. It's all about TLD now. Hero or zero.
There was a recent SEC rule amendment (effective April 2020) that addresses this issue. Here's a summary:
https://www.pillsburylaw.com/en/news-and-insights/sec-amendments-to-accelerated-filer-definitions.html.
Depending on who is handling the company's securities filings, they may have forgotten to "uncheck" the accelerated filer box, or they may have been unaware of the new rule. If NWBO was trying to handle all of this in house, this is a very real possibility. But if they end up filing on the 23, then it's timely.
I don't think the 10-Q is late yet. NWBO is a "smaller reporting company" per SEC rules. Because of an April 2020 amendment to certain SEC rules, a smaller reporting company that is also an accelerated filer can now just be considered a smaller reporting company for disclosure purposes. Which means (amongst other things) they have 45 days to file, instead of 40. If this is the case, then their deadline to file the 10-Q was November 16. Note that the 12b-25 filing (aka, the NT 10-Q) extends the time period for a quarterly report to be filed by 5 calendar days from the original deadline to file the 10-Q, which would make the new deadline Monday, November 23. It doesn't matter if the 12b-25 was filed on November 10 if NWBO's original deadline was Nov. 16.
Disclaimer: I'm not 100% certain that the analysis above is correct. I would say I'm 85% sure because I haven't been able to verify (quickly) whether you have to wait until the 10-K to designate your filer status or whether you can take advantage of the new rules in a quarterly filing. And, even if NWBO can take advantage of its new filer status now, it seems likely that they were not aware of the amendment (since they filed the 12b-25 on the 10th), so I wouldn't necessarily expect that they will file by the 23rd.
Anyway, I just wanted to throw that out there. I don't pretend to know what is going on or why they needed extra time to account for Flaskworks. I'll also add that I think the "subsequent events" they referred to in the 12-25 filing were just the October equity offering and warrant exercise suspensions. But that's just an educated guess.