RIGHT OF FIRST REFUSAL
AND CO-SALE AGREEMENT
THIS RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT (this Agreement), is made as of the 7th day of September, 2019 by and among Kiromic, Inc., a Delaware corporation (the Company), the Investors (as defined below) listed on Schedule A and the Key Holders (as defined below) listed on Schedule B.
WHEREAS, the name and address of each Key Holder is set forth on Schedule B;
WHEREAS, the Company and the Investors are parties to that certain Series B Preferred Stock Purchase Agreement, of even date herewith (the Purchase Agreement), pursuant to which the Investors have agreed to purchase shares of the Series B Preferred Stock of the Company, par value $0.01 per share (Series B Preferred Stock); and
WHEREAS, the Key Holders and the Company desire to further induce the Investors to purchase the Series B 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 Investor 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 venture capital fund or registered investment company now or hereafter existing which is controlled by one or more general partners, managing members or investment advisers of, or shares the same management company or investment adviser with, such Investor.
1.2 Board of Directors means the board of directors of the Company.
1.3 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.
1.4 Change of Control means a transaction or series of related transactions in which a person, or a group of related persons, acquires from stockholders of the Company shares representing more than fifty percent (50%) of the outstanding voting power of the Company.