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United States securities and exchange commission logo
November 22, 2022
David Rosenthal
Partner
Dechert LLP
3 Bryant Park
1095 Avenue of the Americas
New York, NY 10036-6797
Re: Diffusion
Pharmaceuticals Inc.
PREC14A
Filed November 18,
2022
File No. 001-37942
Dear David Rosenthal:
We have reviewed your filing 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 by providing the requested
information 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 comments.
All defined terms have the same meaning as in your proxy statement.
Preliminary Proxy Statement on Schedule 14A
Cover Page
1. We note the statement
at the bottom of the cover page of the proxy statement, to the effect
that shareholders can
consent to electronic delivery of proxy materials on the proxy card.
However, we are unable
to locate the referenced instructions on the form of proxy. Please
advise or revise.
General Information About the Annual Meeting and Voting
How will my shares be voted?, page 5
2. We note your statement
on the proxy card that "if you mark a vote 'FOR' with respect to
fewer than six
nominees, your shares will be voted 'FOR' those nominees as you
instructed and any
remaining votes will be allocated to the Company's nominees for
David Rosenthal
FirstName LastNameDavid Rosenthal
Dechert LLP
Comapany 22,
November NameDechert
2022 LLP
November
Page 2 22, 2022 Page 2
FirstName LastName
director in the proxyholders' discretion." We also note the disclosure
on page 6 of the
proxy statement that states if an undervote occurs "your shares will
only be voted 'FOR'
those nominees you have so marked and any remaining votes on Proposal
No.1 shall not
be voted and will have the same effect as a vote to 'WITHOLD' for the
other nominees."
These statements are inconsistent. Please clarify. To the extent that
you seek to use your
discretion to allocate votes to the Company's nominees, describe with
reasonable
specificity how you will exercise your discretion in determining how
to allocate those
votes.
Additional Information Regarding Proposal 1 Voting, page 8
3. We note the statement that the "only way to support your Board's
nominees is to vote
'FOR ALL' your Board's nominees on the WHITE proxy card." However, we
note your
card does not have a "FOR ALL" option as permitted under Rule
14a-19(f). Please revise
the disclosure accordingly.
Stockholder Proposals for 2023 Annual Meeting and Director Nominations, page 39
4. Include the disclosure required by Rule 14a-5(e)(4) regarding the
deadline to provide
notice of solicitation of proxies pursuant to Rule 14a-19 for
Diffusion's next annual
meeting.
Proxy Card, page 40
5. Please revise to identify the dissident nominee as John Ziegler MD as
disclosed in the
dissident's DFAN14A filed on November 17, 2022. See Rule 14a-19(e)(1).
6. See our comment above. We note your disclosure here that "If you mark
a vote 'FOR' with
respect to fewer than six nominees, your shares will be voted by the
named proxies as you
instructed with respect to those nominees." However, on Proposal 1,
you state that "if you
mark a vote 'FOR' with respect to fewer than six nominees, your shares
will be voted
'FOR' those nominees as you instructed and any remaining votes will be
allocated to the
Company's nominees for director in the proxyholders' discretion."
Please revise to clarify
these inconsistent statements and to describe how under votes will be
allocated. Your
revised disclosure should clarify that the Company will not exercise
discretion where a
shareholder marks "WITHHOLD" for nominees, even if that shareholder
votes "FOR"
fewer than six nominees.
We remind you that the filing persons are responsible for the accuracy
and adequacy of
their disclosures, notwithstanding any review, comments, action or absence of
action by the staff.
David Rosenthal
Dechert LLP
November 22, 2022
Page 3
Please direct any questions to Michael Killoy at 202-551-7576 or
Christina Chalk at 202-
551-3263.
FirstName LastNameDavid Rosenthal Sincerely,
Comapany NameDechert LLP
Division of
Corporation Finance
November 22, 2022 Page 3 Office of Mergers &
Acquisitions
FirstName LastName