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SEC Filings

S-1
PROTEON THERAPEUTICS INC filed this Form S-1 on 09/16/2014
Entire Document
 

 

from the Company pursuant to this Section 1.1(d), if the Company has previously sold to such Purchaser, and such Purchaser has previously purchased from the Company, shares of Series D Preferred Stock pursuant to Section 2.1(b) hereof.  In the event that the provisions of clause (D) of the immediately preceding sentence are applicable with respect to one or more Purchasers, then (1) the rights and obligations of the Purchasers to purchase Third Tranche Shares pursuant to this Section 1.1(d) shall continue to apply only with respect to those Purchasers that have not previously purchased shares of Series D Preferred Stock from the Company pursuant to Section 2.1(b) hereof, (2) the rights and obligations of the Company to sell Third Tranche Shares pursuant to this Section 1.1(d) shall continue to apply only with respect to those Purchasers that have not previously purchased shares of Series D Preferred Stock from the Company pursuant to Section 2.1(b) hereof and (3) the aggregate purchase price payable by the Purchasers at the Third Tranche Closing for all of the Third Tranche Shares shall be automatically reduced to reflect the reduction in the number of Third Tranche Shares.

 

(iv)                              The rights and obligations of the Company and the Purchasers to consummate the sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) shall automatically terminate on the earlier of (1) the sixteenth (16th) business day after September 30, 2017, (2) the consummation of a Deemed Liquidation Event, (3) the closing of the IPO and (4) the date on which all Purchasers have purchased shares of Series D Preferred Stock pursuant to, and in accordance with, Section 2.1(b) hereof.  In addition, if one or more Purchasers is or are in material breach of any representation, warranty, covenant or provision under this Agreement that is applicable to such Purchaser or Purchasers (which material breach remains uncured for at least thirty (30) days after written notice thereof), then the obligation of the Company to consummate the sale of any number of the Third Tranche Shares to such Purchaser or Purchasers pursuant to this Section 1.1(d), and the right of such Purchaser or Purchasers to consummate the purchase of such number of the Third Tranche Shares from the Company pursuant to this Section 1.1(d), may be terminated by the Company by giving written notice of termination to the breaching Purchaser or Purchasers.  Any termination pursuant to this Section 1.1(d)(iv) of the rights and/or obligations of the Company and/or the Purchasers to consummate the sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) shall not relieve or release any party to this Agreement from any material breach by such party of any representation, warranty, covenant or provision under this Agreement that is applicable to such party if and to the extent that such material breach occurred prior to such termination.

 

1.2.                            Closings; Delivery.

 

(a)                                 Initial Tranche Closing.

 

(i)                                     The closing of (1) the conversion of the Applicable Convertible Note(s) of each Noteholder Purchaser and the issuance and sale the Total Note Conversion Shares in connection with such conversion, all pursuant to Section 1.1(b)(i) hereof and (2) the sale and purchase of the shares of Series D Preferred Stock pursuant to Section 1.1(b)(ii) hereof shall take place remotely via the exchange of documents and signatures either (i) at 11:00 am Eastern Standard Time on the fifth (5th) business day after the date of this Agreement or (ii) at such other time and/or date (whether prior or after such fifth (5th) business date) as the Company and the Purchasers mutually agree upon, orally or in writing, which may be on the date hereof (the “Initial Tranche Closing”).

 

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(ii)                                  At the Initial Tranche Closing: (1) the Company shall deliver to each Noteholder Purchaser a certificate representing the Note Conversion Shares of such Noteholder Purchaser, against delivery by such Noteholder Purchaser of the original Applicable Convertible Note(s) of such Noteholder Purchaser or, in the event that such original Applicable Convertible Note(s) have been lost, stolen or destroyed an affidavit of loss, in form and substance satisfactory to the Company, duly executed by such Noteholder Purchaser pursuant to which such Noteholder Purchaser certifies that such original Applicable Convertible Note(s) have been lost, stolen or destroyed and agreeing to customary indemnification of the Company in the event of any claims pertaining to such original Applicable Convertible Note(s); and (2) the Company shall deliver to each Purchaser a certificate representing the shares of Series D Preferred Stock being purchased by such Purchaser pursuant to Section 1.1(b)(ii) hereof, against payment by such Purchaser of the purchase price for such shares of Series D Preferred Stock by check payable to the Company, by wire transfer to a bank account designated by the Company or by any combination of such methods.

 

(b)                                 Second Tranche Closing.

 

(i)                                     The closing of the purchase and sale of the Second Tranche Shares pursuant to Section 1.1(c) hereof shall take place remotely via the exchange of documents and signatures on either the date specified in the Second Tranche Closing Notice delivered pursuant to Section 1.1(c)(ii) hereof, which date specified must be consistent with the applicable requirements of Section 1.1(c)(iii), or on such other date as the Company and those Purchasers that hold at least sixty five percent (65%) of the Initial Tranche Shares then outstanding mutually agree (the “Second Tranche Closing”).

 

(ii)                                  At the Second Tranche Closing, the Company shall deliver to each Purchaser a certificate representing the number of the Second Tranche Shares being purchased by such Purchaser pursuant to Section 1.1(c) hereof, against either (1) payment by such Purchaser of the purchase price for such number of the Second Tranche Shares by check payable to the Company, by wire transfer to a bank account designated by the Company or by any combination of such methods or (2) delivery by such Purchaser of a Net Issue Election Form that has been properly completed and duly executed by such Purchaser if such Purchaser is entitled to make a Net Issue Election pursuant to Section 1.1(c)(iii) in connection with the number of the Second Tranche Shares being purchased by such Purchaser pursuant to Section 1.1(c) hereof.

 

(c)                                  Third Tranche Closing.

 

(i)                                     The closing of the purchase and sale of the Third Tranche Shares pursuant to Section 1.1(d) hereof shall take place remotely via the exchange of documents and signatures on either the date specified in the Third Tranche Closing Notice delivered pursuant to Section 1.1(c)(ii) hereof, which date specified must be consistent with the applicable requirements of Section 1.1(d)(iii), or on such other date as the Company and those Purchasers that hold at least sixty five percent (65%) of the Initial Tranche Shares and Second Tranche Shares, if any, then outstanding mutually agree (the “Third Tranche Closing”).

 

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