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

 

Voting Agreement” means the agreement among the Company, the Purchasers and certain other stockholders of the Company, dated as of the Initial Tranche Closing, in the form of Exhibit G attached to this Agreement.

 

1.8.                            Conversion Price Adjustment.  The parties acknowledge that, in the event that Shares are issued and sold pursuant to Section 1.1(c) or Section 1.1(d) hereof, the Conversion Price (as defined in the Restated Certificate) applicable to each of the Series A Preferred Stock, the Series A-1 Preferred Stock, the Series B Preferred Stock and the Series C Preferred Stock (but not Series D Preferred Stock) shall adjust in accordance with the provisions of Section 4.4.4 of Division C of Article Fourth of the Restated Certificate.

 

2.                                      Individual Purchase Rights of each Purchaser.

 

2.1.                            Exercise of Individual Purchase Rights.

 

(a)                                 Second Tranche Individual Purchase Right.

 

(i)                                     Subject to the terms and conditions of this Agreement (including, without limitation, the terms and conditions set forth below in this Section 2.1(a)), each Purchaser shall have the right under this Section 2.1(a) to purchase from the Company all (but not less than all) of the number of shares of Series D Preferred Stock set forth opposite such Purchaser’s name under the heading “Second Tranche Shares” on Exhibit A (such number of shares of Series D Preferred Stock subject to such Purchaser’s rights under this Section 2.1(a) being hereinafter referred to, subject to the provisions of Section 2.1(a)(iii) below, as such Purchaser’s “Second Tranche Individual Purchase Shares”), at a purchase price per share equal to the Series D Price.  The right of each Purchaser to purchase such Purchaser’s Second Tranche Individual Purchase Shares pursuant to this Section 2.1(a) shall be referred to in this Agreement as such Purchaser’s “Second Tranche Individual Purchase Right.”  Subject to the terms and conditions of this Agreement (including, without limitation, the terms and conditions set forth below in this Section 2.1(a)), each Purchaser may exercise such Purchaser’s Second Tranche Individual Purchase Right by delivering a written notice of exercise to the Company (a “Second Tranche Individual Purchase Exercise Notice”) setting forth a proposed date for the closing of such Purchaser’s Second Tranche Individual Purchase Right (such closing being referred to in this Agreement as a “Section 2.1(a) Closing”) that is consistent with the applicable requirements of Section 2.1(a)(ii) below.  If a Purchaser delivers to the Company a Second Tranche Individual Purchase Exercise Notice in accordance with the provisions of this Section 2.1(a)(i) and Section 2.1(a)(ii) below, then, subject to the terms and conditions of this Agreement (including, without limitation, the terms and conditions set forth below in this Section 2.1(a)), at the applicable Section 2.1(a) Closing, the Company shall issue and sell to such Purchaser, and such Purchaser shall purchase from the Company, all (but not less than all) of such Purchaser’s Second Tranche Individual Purchase Shares, at a purchase price per share equal to the Series D Price.

 

(ii)                                  Notwithstanding anything express or implied in the foregoing provisions of this Section 2.1(a) to the contrary:  (A) no Purchaser shall send the Second Tranche Individual Purchase Exercise Notice at any time during the Restricted Period; (B) the sale and purchase of any Purchaser’s Second Tranche Individual Purchase Shares

 

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pursuant to this Section 2.1(a) shall not be consummated at any time during the Restricted Period; and (C) in the event that the sale and purchase of a Purchaser’s Second Tranche Individual Purchase Shares pursuant to this Section 2.1(a) is to be consummated at any time within thirty (30) days prior to the consummation of a Deemed Liquidation Event or at any time after the closing of the IPO, such Purchaser shall have the right to make a Net Issue Election pursuant to which such Purchaser shall be issued pursuant to this Section 2.1(a), at the applicable Section 2.1(a) Closing, a smaller number of such Purchaser’s Second Tranche Individual Purchase Shares determined in accordance with such Net Issue Election and without having to make payment to the Company of any cash purchase price in connection with such smaller number of such Purchaser’s Second Tranche Individual Purchase Shares, in lieu of purchasing and paying the purchase price for the full number of such Purchaser’s Second Tranche Individual Purchase Shares that such Purchaser would otherwise purchase and pay for pursuant to this Section 2.1(a).

 

(iii)          In the event that (1) the Company consummates the IPO, (2) the sale and purchase of a Purchaser’s Second Tranche Individual Purchase Shares has not been consummated pursuant to this Section 2.1(a) prior to the closing of the IPO and (3) the rights and obligations of the Company and such Purchaser to consummate the sale and purchase of such Purchaser’s Second Tranche Individual Purchase Shares pursuant to this Section 2.1(a) have not terminated in accordance with Section 2.1(a)(iv) prior to the closing of the IPO, then upon the exercise by such Purchaser of such Purchaser’s Second Tranche Individual Purchase Right by sending such Purchaser’s Second Tranche Individual Purchase Notice in accordance with the provisions of this Section 2.1(a) at any time from and after the closing of the IPO, the Company shall issue and sell to such Purchaser, and such Purchaser shall purchase from the Company, in lieu of the number of shares of Series D Preferred Stock set forth opposite such Purchaser’s name under the heading “Second Tranche Shares” on Exhibit A, all (but not less than all) of that number of whole shares of Common Stock that is equal to (A) the quotient (rounded down to the nearest whole number) obtained by dividing (x) the total purchase price that such Purchaser would have been required to pay to the Company for the purchase pursuant to Section 2.1(a)(i) above of such number of shares of Series D Preferred Stock, by (y) the price per share at which the Company sold Common Stock to the public in the IPO, less (B)  the number of shares of Common Stock, if any, that are offered to such Purchaser for purchase in the IPO by the Company or the underwriters in connection with the IPO and that such Purchaser could have purchased in the IPO at the time of the closing of the IPO (regardless of whether or not such Purchaser actually purchases in the IPO such number of shares of Common Stock so offered and made available for purchase by such Purchaser at the time of the closing of the IPO); provided, however, that in no event shall such number of shares of Common Stock subject to purchase and sale pursuant to this Section 2.1(a)(iii) be less than zero.  The purchase price per share payable by such Purchaser to the Company for any shares of Common Stock sold and purchased pursuant to this Section 2.1(a)(iii) shall be the lower of (I) the Conversion Price (as defined in the Restated Certificate) per share of the Series D Preferred Stock immediately prior to the IPO and (II) the price per share at which the Company sold Common Stock to the public in the IPO.  Upon request by a Purchaser, the Company shall request from the underwriter or underwriters of the IPO written confirmation as to (x) the number of shares of Common Stock offered in connection with the IPO that such Purchaser could have purchased at the time of the closing of the IPO and (y) the number of shares of Common Stock that such Purchaser purchased in the IPO or entered into a legally binding agreement to purchase at the time of the closing of

 

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