Proteon Therapeutics, Inc. (NASDAQ:PRTO) Files An 8-K Entry into a Material Definitive Agreement
Item1.01 Entry into a Material Definitive Agreement.
Securities Purchase Agreement
On June 22, 2017, Proteon Therapeutics, Inc. entered into a
Securities Purchase Agreement (the Purchase Agreement) with a
syndicate of current and new institutional investors
(individually, an Investor and, collectively, the Investors), led
by an affiliate of Deerfield Management Company, L.P.
(Deerfield), to which the Company agreed to issue and sell to the
Investors an aggregate of 22,000 shares (the Preferred Shares) of
the Companys Series A Convertible Preferred Stock, par value
$0.001 per share (the Series A Preferred Stock and such sale of
the Series A Preferred Stock, the Transaction), for a purchase
price of $1,000 per share, or an aggregate purchase price of
$22.0 million, all upon the terms and conditions set forth in the
Purchase Agreement.
The transaction is expected to close in the third quarter of
2017, subject to satisfaction of certain closing conditions set
forth in the Purchase Agreement, including approval of the
Companys stockholders. The offer and sale of the Preferred Shares
will not be registered under the Securities Act of 1933, as
amended (the Securities Act), in reliance on the exemption from
registration provided by Section 4(a)(2) of the Securities Act
and/or Regulation D promulgated thereunder.
Series A Preferred Stock
The rights, preferences and privileges of the Series A Preferred
Stock will be set forth in a Certificate of Designation of
Preferences, Rights and Limitations of Series A Convertible
Preferred Stock (the Certificate of Designation) that the Company
will file, subject to the closing of the Transaction, with the
Secretary of State of the State of Delaware prior to closing.
Each share of Series A Preferred Stock will be convertible into
1,005 shares of the Companys common stock, at a conversion price
of $0.9949 per share, in each case subject to adjustment for any
stock splits, stock dividends and similar events, at any time at
the option of the holder, provided that any conversion of Series
A Preferred Stock by a holder into shares of the Companys common
stock would be prohibited if, as a result of such conversion, the
holder, together with its affiliates and any other person or
entity whose beneficial ownership of Company common stock would
be aggregated with such holders for purposes of Section 13(d) of
the Securities Exchange Act of 1934, as amended (the Exchange
Act), would beneficially own more than 9.985% of the total number
of shares of the Companys common stock issued and outstanding
after giving effect to such conversion.
The holders of a majority of the outstanding shares of Series A
Preferred Stock will be entitled to elect one (1) member of the
Companys Board of Directors (the Series A Director). Each share
of Series A Preferred Stock will be entitled to a preference of
$0.001 per share upon liquidation of the Company, and thereafter
will share ratably in any distributions or payments on an
as-converted basis with the holders of common stock. In addition,
if certain transactions that involve the merger or consolidation
of the Company, an exchange or tender offer, a sale of all or
substantially all of the assets of the Company or a
reclassification of the Common Stock occur, each of the Preferred
Shares would be convertible into the kind and amount of
securities, cash and/or other property that the holder of a
number of shares of common stock issuable upon conversion of one
share of Series A Preferred Stock would receive in connection
with such transaction. However, in the event any such transaction
occurs at any time prior to the first 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 Companys biologics license application for the
Companys product vonapanitase by the United States Food and Drug
Administration is greater than 200% of the conversion price, and
if the aggregate value of such securities, cash and/or property
to which a holder of a share of Series A Preferred Stock would be
entitled upon conversion would be less than the price per share
paid for the Series A Preferred Stock (the Stated Value), then
each share of Series A Preferred Stock shall instead be
convertible into such kind of securities, cash and/or other
property with an aggregate value equal to the Stated Value.
Except as otherwise required by law (or with respect to the
election of one director to the Companys Board of Directors and
approval of certain actions specified in the Certificate of
Designation), the Series A Preferred Stock will not have voting
rights.
Registration Rights Agreement
At the closing of the Transaction, the Company will enter into a
registration rights agreement with the Investors (Registration
Rights Agreement). to the Registration Rights Agreement, the
Investors will be entitled to certain shelf and piggyback
registration rights with respect to the shares of common stock
issuable upon conversion of the Series A Preferred Stock, subject
to the limitations set forth in the Registration Rights
Agreement.
Voting Agreements
Concurrently with the execution and delivery of the Purchase
Agreement, and as an inducement to the Investors to enter into
the Purchase Agreement, certain stockholders of the Company (each
a Stockholder) representing a majority of the Companys
outstanding shares of Common Stock entered into Voting Agreements
(each a Voting Agreement and, collectively, the Voting
Agreements) with the Company, to which each Stockholder agreed to
vote its shares of Common Stock in favor of those matters in
connection with the Transaction that require approval by the
stockholders of the Company to the rules of the NASDAQ Stock
Market. The Voting Agreements terminate upon the earlier to occur
of (i) immediately following a meeting of the Companys
stockholders at which the Transaction is voted upon and approved
by the Companys stockholders, and (ii) the termination of the
Purchase Agreement at any time prior to the consummation of the
closing contemplated under the Purchase Agreement.
Fifth Amended and Restated Investors Rights Agreement
Concurrently with the execution and delivery of the Purchase
Agreement, and as an inducement to the Investors to enter into
the Purchase Agreement, the Company and certain stockholders of
the Company entered into a Fifth Amended and Restated Investors
Rights Agreement, dated as of June 22, 2017 (the Fifth IRA), to
which such stockholders have agreed to certain limitations on the
registration rights provided for under that certain Fourth
Amended and Restated Investors Rights Agreement, dated as of May
13, 2014, with the effectiveness of the Fifth IRA to be
contingent upon the closing of the Transaction.
The above description of the Purchase Agreement, Certificate of
Designation, Registration Rights Agreement, Voting Agreements and
Fifth IRA does not purport to be complete and is qualified in its
entirety by reference to such documents, copies of which are
filed as Exhibits 10.20, 3.6, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10,
4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17 and 4.18, respectively,
hereto and are hereby incorporated by reference into this
Item1.01.
Item3.02. Unregistered Sales of Equity
Securities.
The information provided in Item1.01 with respect to the Purchase
Agreement and the Transaction is hereby incorporated by reference
into this Item3.02.
Additional Information about the Transaction and
Where to Find It
The Company intends to file a proxy statement with the SEC in
connection with the proposed Transaction. The definitive proxy
statement and other relevant documents will be sent or given to
the stockholders of the Company and will contain important
information about the proposed Transaction and related matters.
Company stockholders and other interested persons are advised to
read, when available, the definitive proxy statement in
connection with the Companys solicitation of proxies for the
special meeting of the Companys stockholders to be held to
approve the Transaction because the definitive proxy statement
will contain important information about the Transaction. When
available, the definitive proxy statement will be mailed to
Companys stockholders as of a record date to be established for
voting on the proposed transaction. The Companys stockholders
will also be able to obtain copies of the definitive proxy
statement, without charge, once available, at the SECs website at
www.sec.gov or by directing a request to: Proteon Therapeutics,
Inc., 200 West Street, Waltham, MA 02451, attention: Investor
Relations (investor@proteontherapeutics.com).
Participants in the Solicitation
The Company and its directors and officers may be deemed
participants in the solicitation of proxies of the Companys
stockholders in connection with the proposed Transaction. The
Companys stockholders and other interested persons may obtain,
without charge, more detailed information regarding the directors
and officers of the Company in the Companys Annual Report on Form
10-K for the year ended December 31, 2016, as filed with the SEC
on March 16, 2017. Information regarding the persons who may,
under SEC rules, be deemed participants in the solicitation of
proxies to the Companys stockholders in connection with the
proposed Transaction will be set forth in the definitive proxy
statement for the proposed Transaction when available. Additional
information regarding the interests of participants in the
solicitation of proxies in connection with the proposed
Transaction will be included in the definitive proxy statement
that the Company intends to file with the SEC.
Forward Looking Statements
This Current Report contains statements that are, or may be
deemed to be, forward-looking statements as defined in the
Private Securities Litigation Reform Act of 1995. In some cases,
these forward-looking statements can be identified by the use of
forward-looking terminology, including the terms estimates,
anticipates, expects, plans, intends, may, or will, in each case,
their negatives or other variations thereon or comparable
terminology, although not all forward-looking statements contain
these words. These statements, including the expected timing and
completion of the Transaction, when the Company expects to report
top-line data from the PATENCY-2 trial, the sufficiency of the
Companys cash, cash-equivalents and available-for-sale
investments upon completion of the financing to fund the Companys
operations into the fourth quarter of 2019, and those relating to
future events or the Companys future financial performance or
condition, involve substantial known and unknown risks,
uncertainties and other important factors that may cause our
actual results, levels of activity, performance or achievements
to differ materially from those expressed or implied by these
forward-looking statements. These risks, uncertainties and other
factors, including whether the Transaction may be delayed or may
not occur due to market or other conditions and the satisfaction
of closing conditions related to the Transaction; whether the
Companys cash resources will be sufficient to fund our operating
expenses and capital expenditure requirements for the period
anticipated; whether data from early nonclinical or clinical
studies will be indicative of the data that will be obtained from
future clinical trials; whether vonapanitase will advance through
the clinical trial process on the anticipated timeline and
warrant submission for regulatory approval; whether such a
submission would receive approval from the U.S. Food and Drug
Administration or equivalent foreign regulatory agencies on a
timely basis or at all; and whether the Company can successfully
commercialize and market its product candidates, are described
more fully in the Companys Annual Report on Form 10-K for the
year ended December 31, 2016, as filed with the SEC on March 16,
2017, and our subsequent Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K, as filed with the SEC, particularly
in the sections titled Risk Factors and Management’s Discussion
and Analysis of Financial Condition and Results of Operations. In
light of the significant uncertainties in our forward-looking
statements, you should not place undue reliance on these
statements or regard these statements as a representation or
warranty by the Company or any other person that the Company will
achieve its objectives and plans in any specified time frame, or
at all. The forward-looking statements contained in this Current
Report represent the Companys estimates and assumptions only as
of the date of this Current Report and, except as required by
law, the Company undertakes no obligation to update or revise
publicly any forward-looking statements, whether as a result of
new information, future events or otherwise after the date of
this Current Report.
Disclaimer
This communication is for informational purposes only and shall
not constitute an offer to sell or the solicitation of an offer
to buy any securities to the proposed transactions or otherwise,
nor shall there be any sale of securities in any jurisdiction in
which the offer, solicitation or sale would be unlawful prior to
the registration or qualification under the securities laws of
any such jurisdiction. No offer of securities shall be made
except by means of a prospectus meeting the requirements of
Section 10 of the Securities Act.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
| Exhibit No. | Description |
| 3.6 |
Form of Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock. |
| 4.4 | Form of Registration Rights Agreement |
| 4.5 |
Voting Agreement, dated June 22, 2017, by and between Proteon Therapeutics, Inc. and Abingworth Bioventures VI, LP |
| 4.6 |
Voting Agreement, dated June 22, 2017, by and between Proteon Therapeutics, Inc. and Deerfield International Master Fund, L.P. |
| 4.7 |
Voting Agreement, dated June 22, 2017, by and between Proteon Therapeutics, Inc. and Deerfield Partners, L.P. |
| 4.8 |
Voting Agreement, dated June 22, 2017, by and between Proteon Therapeutics, Inc. and Deerfield Special Situations Fund, L.P. |
| 4.9 |
Voting Agreement, dated June 22, 2017, by and between |
| 4.10 |
Voting Agreement, dated June 22, 2017, by and between Proteon Therapeutics, Inc. and Intersouth Partners VI, L.P. |
| 4.11 |
Voting Agreement, dated June 22, 2017, by and between Proteon Therapeutics, Inc. and MPM Bio IV NVS Strategic Fund, L.P. |
| 4.12 |
Voting Agreement, dated June 22, 2017, by and between Proteon Therapeutics, Inc. and Pharmstandard International S.A. |
| 4.13 |
Voting Agreement, dated June 22, 2017, by and between Proteon Therapeutics, Inc. and Prism Venture Partners V, LP |
| 4.14 |
Voting Agreement, dated June 22, 2017, by and between Proteon Therapeutics, Inc. and Prism Venture Partners V-A, LP |
| 4.15 |
Voting Agreement, dated June 22, 2017, by and between Proteon Therapeutics, Inc. and Skyline Venture Partners Qualified Purchaser Fund IV, LP |
| 4.16 |
Voting Agreement, dated June 22, 2017, by and between Proteon Therapeutics, Inc. and TVM Science Ventures VI GmbH Co. KG |
| 4.17 |
Voting Agreement, dated June 22, 2017, by and between Proteon Therapeutics, Inc. and TVM Life Science Ventures VI LP |
| 4.18 |
Fifth Amended and Restated Investors Rights Agreement, dated June 22, 2017, by and among Proteon Therapeutics, Inc. and the stockholders party thereto |
| 10.20 |
Securities Purchase Agreement, dated June 22, 2017, by and among Proteon Therapeutics, Inc. and the Investors party thereto. |
PROTEON THERAPEUTICS INC ExhibitEX-3.6 2 exh_36.htm EXHIBIT 3.6 Exhibit 3.6 Execution Version Proteon Therapeutics,…To view the full exhibit click here About Proteon Therapeutics, Inc. (NASDAQ:PRTO)
Proteon Therapeutics, Inc. is a late-stage biopharmaceutical company, which focuses on the development of pharmaceuticals to address the needs of patients with renal and vascular disease. The Company is involved in research and development activities. The Company’s product candidate, product candidate, vonapanitase, formerly PRT-201, is a recombinant human elastase that it is developing to manage vascular access failure in patients with chronic kidney disease undergoing or planning for hemodialysis, a lifesaving treatment that cannot be conducted without a functioning vascular access. The Company has completed Phase II trial of vonapanitase in patients undergoing creation of an arteriovenous fistula (AVF). The Company initiated the first of two Phase III trials, PATENCY-1, for vonapanitase in radiocephalic AVFs. Its vonapanitase product candidate is a recombinant human elastase under development as a treatment to prevent AVF and arteriovenous graft (AVG) patency loss.