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S-1
PROTEON THERAPEUTICS INC filed this Form S-1 on 09/16/2014
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provisions of Section 5A of Division C of Article Fourth of the Restated Certificate and (y) any right that such Purchaser may have to designate a nominee for election to the Board of Directors of the Company shall terminate in accordance with the provisions of Section 1.7 of the Voting Agreement (as defined in Section 1.7 hereof).

 

(b)                                 Limitation on Remedies.  The parties hereby acknowledge that, if a Purchaser fails to purchase (i) all of the Second Tranche Shares that such Purchaser is obligated to purchase at the Second Tranche Closing pursuant to, and in accordance with, Section 1.1(c) hereof or (ii) all of the Third Tranche Shares that such Purchaser is obligated to purchase at the Third Tranche Closing pursuant to, and in accordance with, Section 1.1(d) hereof, then, in each case, the only remedies available against such Purchaser are (w) the special mandatory conversion of Series D Preferred Stock owned by the Purchaser pursuant to the Restated Certificate, (x) termination, pursuant to Section 1.7 of the Voting Agreement, of the Purchaser’s right, if any, to designate a nominee for election to the Board of Directors of the Company, (y) termination, pursuant to Section 3.4(b) and Section 3.4(c) of the Investors’ Rights Agreement (as defined in Section 1.7 hereof), of the Purchaser’s information and observer rights, if any, and (z) termination, pursuant to Section 4.2 of the Investors’ Rights Agreement, of the Purchaser’s preemptive rights, if any.

 

1.6.                            Waiver of Preemptive Rights.  Certain of the Purchasers, acting for themselves and on behalf of all other stockholders of the Company that have preemptive rights under that certain Third Amended and Restated Investors’ Rights Agreement, dated August 2, 2011, among the Company, certain of the Purchasers and those other stockholders of the Company that are parties thereto, as previously amended and in effect prior to the date of this Agreement (the “Prior Investors’ Rights Agreement”), hereby waive any and all preemptive rights, if any, under Section 4.1 of the Prior Investors’ Rights Agreement with respect to the offer, sale and/or issuance by the Company of the Shares pursuant to this Agreement and the Common Stock issuable upon conversion of the Series D Preferred Stock issued pursuant to this Agreement.

 

1.7.                            Defined Terms Used in this Agreement.  In addition to the terms defined above, the following terms used in this Agreement shall be construed to have the meanings set forth or referenced below.

 

Abingworth” means Abingworth Bioventures VI, LP.

 

Affiliate” means, with respect to any specified Person, any other Person who or which, directly or indirectly, controls, is controlled by, or is under common control with such specified Person, including, without limitation, any partner, officer, director, member or employee of such Person and any venture capital fund now or hereafter existing that is controlled by or under common control with one or more general partners or managing members of, or shares the same management company with, such Person.

 

Applicable Convertible Notes” shall have the meaning set forth in Section 1.1(b)(i) hereto.

 

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