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SEC Filings

S-3/A
PROTEON THERAPEUTICS INC filed this Form S-3/A on 08/14/2017
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 The following defined terms are set forth in the Certificate of Designation:

 

“Attribution Parties” means, with respect to any holder, collectively, any of such Holder’s Affiliates (as defined below), any Persons (as defined below) acting as a “group” together with such Holder with respect to the common stock for purposes of Section 13(d) of the Exchange Act, and any other Persons whose beneficial ownership of the common stock would be aggregated with such Holder’s for purposes of Section 13(d) of the Exchange Act.

 

“Affiliate” means any Person (as hereinafter defined) that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with such Person, as such terms are used in and construed under Rule 144 under the Securities Act (“Rule 144”). With respect to a Holder, any investment fund or managed account that is managed on a discretionary basis by the same investment manager as such Holder will be deemed to be an Affiliate of such Holder. As used in this definition of “Affiliate,” the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or partnership or other ownership interest, by contract, or otherwise.

 

“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization or a government or any department or agency thereof or any other legal entity.

 

In the event that the issuance of shares of common stock to any holder upon the conversion of any of such holder’s shares of Series A Preferred Stock results in such holder and its Attribution Parties being deemed to beneficially own, in the aggregate, a number of shares of common stock that exceeds the Blocker, the issuance of that number of shares so issued in excess of the Blocker (the “Excess Shares”), and the conversion of shares of Series A Preferred Stock resulting in such issuance, shall be deemed null and void and shall be cancelled ab initio, such holder shall not have the power to vote or to transfer the Excess Shares, and the shares of Series A Preferred Stock as to which the conversion was voided shall remain outstanding and continue to be held by such holder. As soon as reasonably practicable after such issuance and conversion have been deemed null and void, the Company shall return to such holder certificates representing the number of shares of Series A Preferred Stock corresponding to the voided issuance and conversion (to the extent such shares of Series A Preferred Stock were surrendered to the Company).

 

Prior to the first date (the “Preference Termination Date”) that the volume-weighted average price per share of common stock for each of the trading days during any twenty consecutive trading days ending on or at any time after the one year anniversary of the approval of the Company’s biologics license application for the Company’s product vonapanitase by the United States Food and Drug Administration is greater than 200% of the conversion price, the holders of a majority of the outstanding shares of Series A Preferred Stock will be entitled to elect one (1) member of the Board (the “Series A Director”). On August 2, 2017, the holders of a majority of the outstanding shares of Series A Preferred Stock elected Jonathan Leff to serve as the Series A Director. Mr. Leff is a Partner at Deerfield Management Company, L.P., the investment manager of Deerfield Private Design Fund IV, L.P., serving on the Private Transactions team and as Chairman of the Deerfield Institute.

 

The Series A Director is entitled to the same compensation, the same indemnification and the same director and officer insurance in connection with such Series A Director’s service as a director as all other non-employee members of the Board, and the Series A Director is entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board and any committees thereof, to the same extent as all other non-employee members of the Board. In addition, the Series A Director is entitled to the same information regarding the Company and its subsidiaries in connection with the Series A Director’s service as a director as all other members of the Board. Further, the Series A Director will hold office until the following year’s annual meeting of the Company’s stockholders and until his or her successor is duly elected or qualified by the written consent of the holders of a majority of the outstanding shares of Series A Preferred Stock or until his or her earlier death, incapacity, resignation or removal. Such Series A Director may be removed from office, with or without cause, upon the written consent of the holders of a majority of the outstanding shares of Series A Preferred Stock, and the holders of a majority of the outstanding shares of Series A Preferred Stock shall have the power to fill, by written consent, any vacancy caused by the resignation, death or removal of such Series A Director. For purposes of clarity, the Series A Director shall not be classified with the remaining members of the Board of Directors.

 

Contemporaneously with the closing of the Transaction, we entered into a Registration Rights Agreement with the Investors (the “Registration Rights Agreement”). Pursuant to the Registration Rights Agreement, the Investors are entitled to certain shelf and “piggyback” registration rights with respect to the Conversion Shares, subject to the limitations set forth in the Registration Rights Agreement. In addition, pursuant to the Registration Rights Agreement, we agreed to file a registration statement on Form S-3 with the SEC, within 20 days after the closing of the Transaction, to register for resale the Conversion Shares that are issuable upon the conversion of the Preferred Shares issued at closing, and any additional shares of common stock as may become issuable with respect to such securities as a result of stock splits, stock dividends or similar transactions (the “Registrable Securities”), and to maintain the effectiveness of such registration statement(s) until all the shares of common stock have been sold in accordance with the Registration Statement or in accordance with Rule 144 under the Securities Act or may be sold by the selling stockholder without volume or manner-of-sale restrictions, and without compliance with any “current public information” requirement, pursuant to Rule 144 under the Securities Act. We filed this registration statement to comply with our requirements under the Registration Rights Agreement.

 

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