RIGHT OF FIRST REFUSAL
AND CO-SALE AGREEMENT
THIS RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT (this Agreement) is made as of the 13th day of July, 2020 by and among BioAtla, Inc., a Delaware corporation (the Company), the Investors listed on Schedule A and the Key Holders listed on Schedule B.
WHEREAS, each Key Holder is the direct or indirect beneficial owner of the number of shares of Capital Stock, or of options to purchase Common Stock, set forth opposite the name of such Key Holder on Schedule B.
WHEREAS, the Company and the Investors are parties to that certain Series D Preferred Stock Purchase Agreement, of even date herewith (the Purchase Agreement), pursuant to which the Investors have agreed to purchase shares of the Series D Preferred Stock of the Company, par value $0.0001 per share (Series D Preferred Stock); and
WHEREAS, the Key Holders and the Company desire to further induce the Investors to purchase Series D Preferred Stock;
NOW, THEREFORE, the Company, the Key Holders and the Investors agree as follows:
1.1. Affiliate means, with respect to any specified Investor, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with, such Investor, including, without limitation, any general partner, managing member, officer, director or trustee of such Investor, or any limited liability company, limited partnership, investment fund or registered investment company now or hereafter existing that is controlled by one or more general partners, managers, managing members or investment advisors of, or shares the same management company or investment advisor with, such Investor; any wholly-owned subsidiary of such Investor; or any direct or indirect wholly-owned subsidiary of the ultimate parent entity of such Investor; provided, however, that (i) each Janus Investor shall be deemed to be an Affiliate of each other Janus Investor, and (ii) an entity that is an Affiliate of a Janus Investor shall not be deemed to be an Affiliate of any other Janus Investor unless such entity is a Janus Investor (and, for the avoidance of doubt, an Affiliate of such entity shall not be deemed an Affiliate of any Janus Investor solely by virtue of being an Affiliate of such entity).
1.2. Capital Stock means (a) shares of Common Stock and Preferred Stock (whether now outstanding or hereafter issued in any context), (b) shares of Common Stock issued or issuable upon conversion of Preferred Stock and (c) shares of Common Stock issued or issuable upon exercise or conversion, as applicable, of stock options, warrants or other convertible securities of the Company, in each case now owned or subsequently acquired by any Key Holder, any Investor, or their respective successors or permitted transferees or assigns. For purposes of the number of shares of Capital Stock held by an Investor or Key Holder (or any other calculation based thereon), all shares of Preferred Stock shall be deemed to have been converted into Common Stock at the then-applicable conversion ratio.