Exhibit 4.4
FIRST AMENDMENT TO
RIGHT OF FIRST REFUSAL ANDCO-SALE AGREEMENT
THIS FIRST AMENDMENT TO RIGHT OF FIRST REFUSAL ANDCO-SALE AGREEMENT (this “Amendment”), is made and effective as of May 20, 2019 (the “Effective Date”), to amend that certain Right of First Refusal andCo-Sale Agreement, dated as of April 30, 2018 (the “ROFR Agreement”), by and among Inhibrx, Inc., a Delaware corporation formerly known as Tenium Therapeutics, Inc. (the “Company”), the Investors and Common Holders party thereto. Capitalized terms used but not defined herein shall have the meanings given to them in the ROFR Agreement.
WHEREAS, the Company, certain of the Investors and Common Holders (the “ExistingParties”) are parties to the ROFR Agreement, which remains in full force and effect;
WHEREAS, the Company desires to enter into that certain Note Purchase Agreement (the “VikingNote PurchaseAgreement”) and Convertible Promissory Note (the “VikingConvertibleNote,” and, together with the Viking Note Purchase Agreement, the “VikingNote Agreements”), each dated as of the date hereof, by and between the Company and DRAGSA 50 LLC (“Viking”); and
WHEREAS, in order to induce Viking to enter into the Viking Note Agreements, the Company and Existing Parties hereby agree to amend the ROFR Agreement as set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the ROFR Agreement is hereby amended as follows:
1. Amendment to Section 1.3. Section 1.3 of the ROFR Agreement is hereby deleted in its entirety and replaced with the following:
“‘Capital Stock’ means (a) shares of Common Stock, Series Mezzanine 1 Preferred Stock (whether now outstanding or hereafter issued in any context) and Series Mezzanine 2 Preferred Stock (whether now outstanding or hereafter issued in any context) (collectively, the “Preferred Stock”), (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 (including the Viking Convertible Note), 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 thethen-applicable conversion ratio.”
2. Amendment to Section 1 to Add Definitions. Section 1 of the ROFR Agreement is hereby amended to add the following definitions in alphabetical order:
