RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
Heliograph Therapeutics, Inc.
Dated as of August 15, 2025
EXECUTION VERSION
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
This RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT (this "Agreement") is made and entered into as of August 15, 2025, by and among:
(i) Heliograph Therapeutics, Inc., a Delaware corporation (the "Company"), with its principal offices located at 4800 Biopark Drive, Building C, Suite 200, Durham, NC 27709;
(ii) the investors listed on Schedule A attached hereto (each, an "Investor" and, collectively, the "Investors"), consisting of Cobalt Ventures LP, a Delaware limited partnership ("Cobalt"), Pinnacle BioVentures Fund II LP, a Delaware limited partnership ("Pinnacle"), and Lakeshore Health Innovation Fund LP, a Delaware limited partnership ("Lakeshore"); and
(iii) the key holders listed on Schedule B attached hereto (each, a "Key Holder" and, collectively, the "Key Holders"), consisting of Dr. Priya Anand and Dr. Marcus Ellington.
The Company, the Investors, and the Key Holders are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Company and Cobalt Ventures LP are parties to that certain Series B Preferred Stock Purchase Agreement, dated as of August 15, 2025 (as may be amended, restated, supplemented, or otherwise modified from time to time, the "Purchase Agreement"), pursuant to which Cobalt is purchasing 14,414,414 shares of the Company's Series B Preferred Stock, par value $0.0001 per share (the "Series B Preferred Stock"), at a price per share of $1.3875, for an aggregate purchase price of $20,000,000;
WHEREAS, Pinnacle and Lakeshore are holders of the Company's Series A Preferred Stock, par value $0.0001 per share (the "Series A Preferred Stock"), having acquired 10,000,000 and 5,000,000 shares of Series A Preferred Stock, respectively, in a preferred stock financing completed in September 2022 at a price per share of $2.00;
WHEREAS, the Key Holders are holders of shares of the Company's Common Stock, par value $0.0001 per share (the "Common Stock"), with Dr. Priya Anand holding 16,000,000 shares of Common Stock and Dr. Marcus Ellington holding 12,000,000 shares of Common Stock;
WHEREAS, as a condition to the closing of the transactions contemplated by the Purchase Agreement, and for the mutual benefit of the Parties, the Parties desire to enter into this Agreement to provide for certain rights of first refusal and co-sale rights with respect to certain transfers of the Company's Capital Stock, as more fully set forth herein; and
WHEREAS, this Agreement amends, restates, and supersedes in its entirety any prior right of first refusal and co-sale agreement among the Company and any of the Parties hereto, including that certain Right of First Refusal and Co-Sale Agreement, dated as of September 2022, by and among the Company, Pinnacle, Lakeshore, and the Key Holders.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties agree as follows:
ARTICLE 1 — DEFINITIONS
Section 1.1 — Definitions
As used in this Agreement, the following terms shall have the meanings ascribed to them below:
"Affiliate" means, with respect to any specified Person, any other Person that, directly or indirectly, controls, is controlled by, or is under common control with such specified Person. For purposes of this definition, "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract, or otherwise. Without limiting the generality of the foregoing, a Person shall be deemed to control another Person if the first Person owns, directly or indirectly, more than fifty percent (50%) of the voting equity interests of the second Person.
"Board of Directors" means the board of directors of the Company, as duly constituted from time to time in accordance with the Restated Certificate and applicable law.
"Capital Stock" means all shares of Common Stock and Preferred Stock of the Company, including any securities issued or issuable with respect thereto upon any stock split, stock dividend, recapitalization, or similar event.
"Common Stock" means the Company's Common Stock, par value $0.0001 per share, of which 40,000,000 shares are currently issued and outstanding as of the date hereof.
"Company" means Heliograph Therapeutics, Inc., a Delaware corporation, State of Delaware File Number 5923417, and any successor entity thereto.
"Company Notice" has the meaning set forth in Section 2.2(a).
"Co-Sale Notice" has the meaning set forth in Section 3.2.
"Equity Securities" means all shares of Capital Stock and all securities convertible into or exercisable or exchangeable for Capital Stock, including without limitation options, warrants, convertible notes, and other rights to acquire shares of Capital Stock.
"Exempt Transfer" has the meaning set forth in Section 4.1.
"Investor Notice" has the meaning set forth in Section 2.3(a).
"Investors" means Cobalt Ventures LP, Pinnacle BioVentures Fund II LP, and Lakeshore Health Innovation Fund LP, together with any permitted transferees who become parties to this Agreement in accordance with the terms hereof and any additional investors who become parties to this Agreement by executing and delivering a joinder agreement in the form attached hereto as Exhibit A.
"Key Holders" means Dr. Priya Anand and Dr. Marcus Ellington, together with any additional key holders who become parties to this Agreement by executing and delivering a joinder agreement in the form attached hereto as Exhibit A. As of the date hereof, the Key Holders hold an aggregate of 28,000,000 shares of Common Stock.
"Person" means any individual, corporation, limited liability company, partnership, joint venture, trust, estate, unincorporated organization, governmental authority, or other entity.
"Preferred Stock" means, collectively, the Series A Preferred Stock and the Series B Preferred Stock.
"Pro Rata Share" means, with respect to each Investor, the ratio (expressed as a percentage) of (a) the number of shares of Capital Stock held by such Investor (on an as-converted-to-Common-Stock basis) as of the date of the applicable Proposed Transfer Notice, to (b) the aggregate number of shares of Capital Stock held by all Investors (on an as-converted-to-Common-Stock basis) as of the date of the applicable Proposed Transfer Notice.
"Proposed Transfer" has the meaning set forth in Section 2.1.
"Proposed Transfer Notice" has the meaning set forth in Section 2.1.
"Prospective Transferee" has the meaning set forth in Section 2.1.
"Purchase Agreement" means the Series B Preferred Stock Purchase Agreement, dated as of August 15, 2025, by and between the Company and Cobalt Ventures LP, as may be amended, restated, supplemented, or otherwise modified from time to time.
"Restated Certificate" means the Amended and Restated Certificate of Incorporation of the Company, as filed with the Secretary of State of the State of Delaware on or about the date hereof, as may be further amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms and applicable law.
"ROFR Exercise Period" has the meaning set forth in Section 2.2(b) and Section 2.3(b), as applicable.
"Series A Preferred Stock" means the Company's Series A Preferred Stock, par value $0.0001 per share, of which 15,000,000 shares are currently issued and outstanding as of the date hereof, originally issued at a price per share of $2.00 in September 2022.
"Series B Preferred Stock" means the Company's Series B Preferred Stock, par value $0.0001 per share, of which 14,414,414 shares are to be issued to Cobalt at a price per share of $1.3875 pursuant to the Purchase Agreement.
"Transfer" means any sale, assignment, pledge, hypothecation, encumbrance, gift, grant of a security interest in, or other disposition of any shares of Capital Stock or any interest therein (including, without limitation, the granting of an option or other right), whether voluntary, involuntary, or by operation of law, including without limitation any transfer by means of a merger, consolidation, or similar transaction, or any transfer resulting from any decree, order, or judgment of any court, arbitrator, or governmental authority, or any attachment, levy, or execution.
"Transfer Stock" means shares of Capital Stock owned by a Key Holder, whether now owned or hereafter acquired, that are subject to the terms of this Agreement, including any shares of Common Stock and any shares of Capital Stock acquired after the date hereof by a Key Holder or any transferee of a Key Holder who has executed a joinder agreement in the form of Exhibit A.
ARTICLE 2 — RIGHT OF FIRST REFUSAL
Section 2.1 — Proposed Transfers; Proposed Transfer Notice
Each Key Holder hereby agrees that, prior to making any Transfer of any Transfer Stock (any such proposed Transfer, a "Proposed Transfer"), such Key Holder (the "selling Key Holder") shall give written notice (a "Proposed Transfer Notice") to the Company and to each Investor at least forty-five (45) days prior to the consummation of such Proposed Transfer. The Proposed Transfer Notice shall be delivered in accordance with Section 7.13 hereof and shall include all of the following information:
(a) the name and address of the prospective transferee or transferees (each, a "Prospective Transferee") to whom the selling Key Holder proposes to Transfer the Transfer Stock;
(b) the number and class or series of shares of Transfer Stock that the selling Key Holder proposes to Transfer in the Proposed Transfer;
(c) the proposed purchase price per share and the aggregate consideration to be paid for the Transfer Stock in the Proposed Transfer, specifying the form of consideration (whether cash, property, or a combination thereof);
(d) the proposed date of the Proposed Transfer;
(e) all other material terms and conditions of the Proposed Transfer, including any representations, warranties, indemnification obligations, escrow arrangements, holdback provisions, or other agreements to be entered into in connection therewith; and
(f) a true and complete copy of any binding agreement, term sheet, letter of intent, or other written instrument relating to the Proposed Transfer that has been executed or agreed to by the selling Key Holder and the Prospective Transferee.
The delivery of a Proposed Transfer Notice shall constitute a binding, irrevocable offer by the selling Key Holder to sell the Transfer Stock identified therein to the Company and/or the Investors on the same price, terms, and conditions as those set forth in the Proposed Transfer Notice, subject to the provisions of this Article 2. Each Key Holder acknowledges and agrees that the Proposed Transfer Notice, once delivered, may not be withdrawn or amended without the prior written consent of the Company and the holders of a majority of the then-outstanding shares of Capital Stock held by the Investors (on an as-converted basis).
Section 2.2 — Company's Right of First Refusal
(a) Company Notice. The Company shall have a primary right of first refusal to purchase all or any portion of the Transfer Stock proposed to be Transferred in the Proposed Transfer, on the same price, terms, and conditions as set forth in the Proposed Transfer Notice. Within fifteen (15) days after receipt of a Proposed Transfer Notice, the Company shall deliver written notice (the "Company Notice") to the selling Key Holder and to each Investor, specifying the number of shares of Transfer Stock, if any, that the Company elects to purchase pursuant to this Section 2.2. If the Company does not deliver a Company Notice within such fifteen (15)-day period, the Company shall be deemed to have elected not to exercise its right of first refusal under this Section 2.2.
(b) Exercise Period. The Company's right of first refusal under this Section 2.2 (the "Company ROFR Exercise Period") shall expire at 5:00 p.m. Eastern Time on the fifteenth (15th) day following the Company's receipt of the Proposed Transfer Notice. Any election by the Company to exercise its right of first refusal must be communicated to the selling Key Holder and each Investor prior to the expiration of the Company ROFR Exercise Period in order to be effective.
(c) Consideration. In the event the Company elects to exercise its right of first refusal, in whole or in part, the Company shall pay the same price per share and on the same terms (including as to form of consideration, payment timing, and other material conditions) as stated in the Proposed Transfer Notice. The Company's obligation to purchase the Transfer Stock shall be subject to any approvals required under applicable law or the Restated Certificate.
(d) Partial Exercise. If the Company does not elect to purchase all of the Transfer Stock identified in the Proposed Transfer Notice (whether by affirmative election to purchase only a portion thereof or by failure to deliver a Company Notice within the applicable exercise period), the shares of Transfer Stock not purchased by the Company (the "Remaining Shares") shall be subject to the Investors' secondary right of first refusal as set forth in Section 2.3 below.
Section 2.3 — Investors' Secondary Right of First Refusal
(a) Investor Notice. If the Company does not exercise its right of first refusal with respect to all of the Transfer Stock identified in the Proposed Transfer Notice, the Company shall, promptly (and in any event within three (3) business days) after the expiration of the Company ROFR Exercise Period, give written notice (the "Investor Notice") to each Investor. The Investor Notice shall set forth: (i) the number of Remaining Shares not purchased by the Company; (ii) the price per share and terms of the Proposed Transfer as set forth in the Proposed Transfer Notice; and (iii) each Investor's Pro Rata Share of the Remaining Shares. Each Investor shall have the right, but not the obligation, to purchase up to its Pro Rata Share of the Remaining Shares on the same price, terms, and conditions as set forth in the Proposed Transfer Notice.
For purposes of this Section 2.3, the Pro Rata Share of each Investor shall be calculated based on each Investor's holdings of Capital Stock (on an as-converted-to-Common-Stock basis) as of the date of the Proposed Transfer Notice, as follows:
(i) Cobalt Ventures LP: 14,414,414 shares (representing shares of Series B Preferred Stock on an as-converted basis) out of total Investor holdings of 29,414,414 shares, representing a Pro Rata Share of approximately 49.0%;
(ii) Pinnacle BioVentures Fund II LP: 10,000,000 shares (representing shares of Series A Preferred Stock on an as-converted basis) out of total Investor holdings of 29,414,414 shares, representing a Pro Rata Share of approximately 34.0%; and
(iii) Lakeshore Health Innovation Fund LP: 5,000,000 shares (representing shares of Series A Preferred Stock on an as-converted basis) out of total Investor holdings of 29,414,414 shares, representing a Pro Rata Share of approximately 17.0%.
The foregoing Pro Rata Share calculations are provided for illustrative purposes only and shall be recalculated as of the date of each applicable Proposed Transfer Notice to reflect then-current shareholdings.
(b) Exercise Period. Each Investor shall have fifteen (15) days from receipt of the Investor Notice (the "Investor ROFR Exercise Period") to deliver written notice to the Company and the selling Key Holder of its election to purchase all or a portion (up to its Pro Rata Share) of the Remaining Shares at the price and on the terms set forth in the Proposed Transfer Notice. If an Investor does not deliver such written notice within the Investor ROFR Exercise Period, such Investor shall be deemed to have elected not to exercise its secondary right of first refusal under this Section 2.3.
(c) Over-Allotment. If any Investor does not exercise its secondary right of first refusal with respect to its full Pro Rata Share of the Remaining Shares, the Company shall, promptly (and in any event within two (2) business days) after the expiration of the Investor ROFR Exercise Period, give written notice to each Investor that did exercise its secondary right of first refusal in full (each, an "Exercising Investor"), setting forth the number of shares of Remaining Shares that were not subscribed for by the non-exercising Investors (the "Over-Allotment Shares"). Each Exercising Investor shall have an additional five (5) days from receipt of such notice (the "Over-Allotment Period") to deliver written notice to the Company and the selling Key Holder of its election to purchase all or any portion of the Over-Allotment Shares. If more than one Exercising Investor elects to purchase Over-Allotment Shares, the Over-Allotment Shares shall be allocated among such Exercising Investors pro rata based on the relative number of shares of Capital Stock (on an as-converted basis) held by each such Exercising Investor. If the aggregate number of Over-Allotment Shares elected to be purchased by the Exercising Investors exceeds the available Over-Allotment Shares, each Exercising Investor shall be allocated its proportionate share of the available Over-Allotment Shares, and any remaining fractions shall be allocated as determined by the Board of Directors.
(d) Consideration. Each Investor exercising its secondary right of first refusal (or its over-allotment right) shall pay the same price per share and on the same terms as stated in the Proposed Transfer Notice. If the consideration set forth in the Proposed Transfer Notice includes non-cash consideration, each purchasing Investor may, at its election, pay in cash an amount equal to the fair market value of such non-cash consideration, as reasonably determined in good faith by the Board of Directors.
Section 2.4 — Closing of ROFR Purchases
The closing of any purchase of Transfer Stock pursuant to this Article 2 shall take place at the principal offices of the Company (or at such other location as the parties may mutually agree) within ten (10) days after the expiration of all applicable exercise periods (including, if applicable, the Over-Allotment Period). At such closing:
(a) the selling Key Holder shall deliver to the Company and/or the purchasing Investor(s), as applicable, one or more stock certificates representing the Transfer Stock to be sold, duly endorsed for transfer or accompanied by duly executed stock powers, free and clear of all liens, claims, encumbrances, and restrictions (other than restrictions imposed by applicable securities laws and the terms of this Agreement);
(b) the Company and/or the purchasing Investor(s), as applicable, shall deliver to the selling Key Holder the applicable purchase price for the Transfer Stock being purchased, in the same form of consideration as specified in the Proposed Transfer Notice; provided, however, that if the consideration specified in the Proposed Transfer Notice consists in whole or in part of non-cash consideration, the Company and/or purchasing Investor(s) may, at their election, pay in cash an amount equal to the fair market value of such non-cash consideration as reasonably determined in good faith by the Board of Directors; and
(c) the selling Key Holder shall execute and deliver all such instruments, documents, and certificates as may be reasonably requested by the Company or the purchasing Investor(s) to effect the transfer of the Transfer Stock and to evidence compliance with applicable securities laws.
Section 2.5 — Transfer to Prospective Transferee
If the Company and the Investors do not collectively exercise their rights of first refusal under this Article 2 to purchase all of the Transfer Stock identified in the Proposed Transfer Notice, the selling Key Holder may Transfer the remaining Transfer Stock (i.e., the shares not purchased by the Company or the Investors) to the Prospective Transferee identified in the Proposed Transfer Notice, subject to the following conditions:
(a) Such Transfer shall be made at a price no less than, and on terms and conditions no more favorable to the Prospective Transferee than, those set forth in the Proposed Transfer Notice;
(b) Such Transfer shall be subject to the co-sale rights of the Investors set forth in Article 3 hereof;
(c) Such Transfer must be consummated within sixty (60) days after the expiration of all applicable ROFR exercise periods (including, if applicable, the Over-Allotment Period). If the Transfer is not consummated within such sixty (60)-day period, the selling Key Holder shall be required to recommence the right of first refusal process set forth in this Article 2 in its entirety before making any Transfer of such Transfer Stock; and
(d) As a condition precedent to the consummation of such Transfer, the Prospective Transferee shall execute and deliver a joinder agreement in the form attached hereto as Exhibit A, agreeing to be bound by the terms and conditions of this Agreement with respect to the Transfer Stock being acquired by such Prospective Transferee, and the Company shall have received a copy of such executed joinder agreement prior to or simultaneously with the closing of such Transfer.
ARTICLE 3 — CO-SALE RIGHTS (TAG-ALONG)
Section 3.1 — Co-Sale Right
In the event that any Transfer Stock subject to a Proposed Transfer is not purchased by the Company or the Investors pursuant to the exercise of rights of first refusal under Article 2, each Investor shall have the right, but not the obligation, to participate in the Proposed Transfer on the same price, terms, and conditions as the selling Key Holder (the "Co-Sale Right"). Each Investor exercising its Co-Sale Right may sell in the Proposed Transfer up to such Investor's pro rata portion of the Transfer Stock being transferred to the Prospective Transferee, calculated as the product of:
(x) the total number of shares of Transfer Stock proposed to be Transferred to the Prospective Transferee (after giving effect to any purchases by the Company or the Investors under Article 2); multiplied by
(y) a fraction, the numerator of which is the number of shares of Capital Stock (on an as-converted-to-Common-Stock basis) held by such Investor as of the date of the Proposed Transfer Notice, and the denominator of which is the total number of shares of Capital Stock (on an as-converted-to-Common-Stock basis) held by all Investors and the selling Key Holder as of the date of the Proposed Transfer Notice.
For purposes of this Section 3.1, any shares of Preferred Stock held by an Investor shall be calculated on an as-converted-to-Common-Stock basis in accordance with the conversion provisions set forth in the Restated Certificate. To the extent that the Prospective Transferee declines to purchase shares from a participating Investor, the selling Key Holder shall not consummate the Proposed Transfer unless the selling Key Holder first purchases such shares from such Investor on the same terms and conditions as the Proposed Transfer.
Section 3.2 — Co-Sale Notice
Each Investor wishing to exercise its Co-Sale Right shall deliver a written notice (the "Co-Sale Notice") to the selling Key Holder within fifteen (15) days after receipt of the Proposed Transfer Notice or, if later, within fifteen (15) days after the expiration of all applicable ROFR exercise periods under Article 2 (including, if applicable, the Over-Allotment Period). The Co-Sale Notice shall state the maximum number of shares of Capital Stock that such Investor wishes to include in the Proposed Transfer. An Investor's failure to deliver a Co-Sale Notice within the applicable period shall be deemed an election by such Investor not to exercise its Co-Sale Right with respect to such Proposed Transfer, without prejudice to such Investor's right to exercise its Co-Sale Right with respect to any future Proposed Transfer.
Section 3.3 — Effect on Key Holder
The number of shares of Transfer Stock that the selling Key Holder may sell in the Proposed Transfer to the Prospective Transferee shall be correspondingly reduced on a share-for-share basis by the aggregate number of shares to be sold by all Investors exercising their Co-Sale Rights pursuant to this Article 3. The selling Key Holder shall not consummate any Proposed Transfer unless the Prospective Transferee has agreed in writing, in form and substance reasonably satisfactory to the participating Investors, to purchase shares from each participating Investor on the same price, terms, and conditions as applicable to the selling Key Holder's Transfer Stock. It shall be a condition to the closing of any Proposed Transfer that the Prospective Transferee shall have executed all necessary agreements and instruments to effect the purchase of shares from the participating Investors simultaneously with the purchase of shares from the selling Key Holder.
Section 3.4 — Delivery of Shares
Each participating Investor shall deliver to the selling Key Holder (or directly to the Prospective Transferee, as directed by the selling Key Holder in writing) one or more stock certificates representing the shares to be sold by such Investor, properly endorsed for transfer or accompanied by duly executed stock powers, free and clear of all liens, claims, encumbrances, and restrictions (other than restrictions imposed by applicable securities laws), no later than five (5) business days prior to the scheduled closing date of the Proposed Transfer. If shares of Preferred Stock are to be sold by a participating Investor, such Investor may, at its election, either (i) convert such shares of Preferred Stock into shares of Common Stock immediately prior to the Transfer, in accordance with the conversion provisions of the Restated Certificate, and transfer the resulting shares of Common Stock, or (ii) transfer shares of Preferred Stock at the applicable Common Stock equivalent value as determined in accordance with the conversion provisions of the Restated Certificate. The selling Key Holder shall provide each participating Investor with reasonable advance notice of the expected closing date and any changes thereto.
Section 3.5 — Failure to Close; Return of Shares
If the Proposed Transfer is not consummated within the applicable period set forth in Section 2.5(c) (or such longer period as may be agreed upon in writing by the selling Key Holder and the participating Investors), all stock certificates and other instruments delivered by the participating Investors in connection with the Proposed Transfer shall be returned to the respective Investors promptly (and in any event within five (5) business days) after the expiration of such period or the abandonment of the Proposed Transfer, whichever is earlier. Any Proposed Transfer not consummated within the applicable period shall be subject to the recommencement of the right of first refusal process under Article 2 in its entirety.
Section 3.6 — Violations; Remedies
In the event that a Key Holder makes or attempts to make a Transfer of Transfer Stock in contravention of this Article 3, whether by failing to provide the required Proposed Transfer Notice, by failing to permit co-sale participation by the Investors, or by otherwise violating the provisions of this Article 3:
(a) each Investor that was not afforded the opportunity to exercise its Co-Sale Right in connection with such Transfer shall have the right, exercisable by written notice delivered to the offending Key Holder within thirty (30) days after such Investor becomes aware of such Transfer, to require the Key Holder to purchase from such Investor the number of shares of Capital Stock that such Investor would have been entitled to sell in the Proposed Transfer had the Co-Sale Right been properly observed, at the same price per share and on the same terms and conditions as those applicable to the consummated Transfer;
(b) such right shall be exercisable for a period of ninety (90) days following the date on which the Investor becomes aware of the violating Transfer; and
(c) such right of the Investor shall be in addition to, and not in lieu of, any other remedies available to such Investor at law or in equity, including without limitation the right to seek specific performance, injunctive relief, or damages. The Key Holder acknowledges that the Investors' co-sale rights are a material inducement to the Investors' entry into this Agreement and that a breach of this Article 3 would cause irreparable harm to the Investors for which monetary damages alone would be inadequate.
ARTICLE 4 — EXEMPT TRANSFERS
Section 4.1 — Exempt Transfers Defined
Notwithstanding anything to the contrary contained in Articles 2 and 3 of this Agreement, the rights of first refusal set forth in Article 2 and the co-sale rights set forth in Article 3 shall not apply to any of the following Transfers (each, an "Exempt Transfer"):
(a) any Transfer by a Key Holder to such Key Holder's spouse, domestic partner, lineal descendants (including children, stepchildren, and grandchildren), lineal ancestors (including parents and grandparents), siblings, or to a trust, family limited partnership, limited liability company, or other estate planning vehicle established solely for the benefit of the Key Holder or one or more of the foregoing family members (collectively, "Permitted Family Transferees"), provided that such Transfer is made for estate planning purposes or as a bona fide gift and not for any consideration other than nominal consideration;
(b) any Transfer by a Key Holder to an Affiliate of such Key Holder, provided that such Affiliate relationship exists both at the time of the Transfer and for so long as such Affiliate holds any of the transferred shares;
(c) any repurchase of Transfer Stock by the Company pursuant to the terms of an equity incentive plan, stock option agreement, restricted stock agreement, stock restriction agreement, or similar agreement approved by the Board of Directors, including any repurchase upon termination of the Key Holder's employment, directorship, or consultancy with the Company;
(d) any Transfer of Transfer Stock occurring by operation of law or pursuant to a merger, consolidation, share exchange, or sale of all or substantially all of the assets of the Company, in each case that has been approved in accordance with the terms of that certain Voting Agreement, dated as of August 15, 2025, by and among the Company, the Investors, the Key Holders, and certain other stockholders, and in accordance with the Restated Certificate and applicable law;
(e) any bona fide pledge of Transfer Stock by a Key Holder to a bank, financial institution, or other institutional lender as collateral security for a bona fide indebtedness or loan, provided that (i) the Key Holder provides written notice of such pledge to the Company and each Investor no later than ten (10) days prior to the effectiveness of such pledge, (ii) the pledgee agrees in writing to be bound by the terms and conditions of this Agreement in the event of any foreclosure, transfer, or other disposition of the pledged Transfer Stock, and (iii) any foreclosure or other disposition of the pledged Transfer Stock shall be treated as a Proposed Transfer subject to the provisions of Articles 2 and 3 of this Agreement; and
(f) any Transfer of Transfer Stock in connection with an initial public offering of the Company's Common Stock registered under the Securities Act of 1933, as amended (the "Securities Act"), including any Transfer pursuant to an underwriting agreement entered into in connection therewith.
Section 4.2 — Conditions to Exempt Transfers
Notwithstanding the exemptions set forth in Section 4.1, each Exempt Transfer shall be subject to the following conditions:
(a) Each Permitted Family Transferee and each Affiliate transferee receiving Transfer Stock in an Exempt Transfer shall, as a condition precedent to the effectiveness of such Transfer, execute and deliver to the Company a joinder agreement in the form attached hereto as Exhibit A, agreeing to be bound by all of the terms and conditions of this Agreement applicable to a Key Holder, with respect to the Transfer Stock being acquired by such transferee.
(b) The transferring Key Holder shall remain jointly and severally liable for all obligations of such Permitted Family Transferee or Affiliate transferee under this Agreement, and any breach of this Agreement by such transferee shall be deemed a breach by the transferring Key Holder.
(c) The transferred shares shall remain "Transfer Stock" for all purposes of this Agreement and shall continue to be subject to all of the rights, restrictions, and obligations set forth herein.
(d) The transferring Key Holder shall provide the Company and each Investor with written notice of any Exempt Transfer no later than ten (10) days following the consummation thereof, together with a copy of the executed joinder agreement and evidence of the transferee's relationship to the Key Holder (in the case of a Permitted Family Transferee) or Affiliate status (in the case of an Affiliate transferee).
ARTICLE 5 — LEGEND AND STOP-TRANSFER INSTRUCTIONS
Section 5.1 — Legend
Each certificate (or, in the case of uncertificated shares, each book-entry notation maintained by the Company's transfer agent or in the Company's stock records) representing shares of Transfer Stock or other shares of Capital Stock that are subject to the terms and conditions of this Agreement shall bear (or be subject to) a legend substantially in the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT DATED AUGUST 15, 2025, AS AMENDED FROM TIME TO TIME, AMONG THE COMPANY AND CERTAIN OF ITS STOCKHOLDERS. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY THE PROVISIONS OF SUCH AGREEMENT."
In addition, each such certificate (or book-entry notation) shall bear any other legends required by applicable federal or state securities laws, including without limitation the following legend (or a legend substantially similar thereto):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS."
The Company shall cause all certificates and book-entry notations for shares of Transfer Stock issued after the date hereof to bear the foregoing legends, and shall cause all certificates and book-entry notations for shares of Transfer Stock outstanding as of the date hereof to be amended to include such legends to the extent they do not already bear them.
Section 5.2 — Stop-Transfer Instructions
The Company hereby agrees to issue appropriate stop-transfer instructions to its transfer agent (if any), or if the Company does not have a transfer agent, to note in its stock ledger and corporate records, the restrictions on Transfer set forth in this Agreement with respect to all shares of Transfer Stock and all other shares of Capital Stock that are subject to this Agreement. The Company shall not register any Transfer of shares of Transfer Stock on its books or records unless such Transfer complies with the terms and conditions of this Agreement. The Company shall instruct any future transfer agent to observe and enforce the restrictions set forth in this Agreement and to decline to register any Transfer that does not comply with the terms hereof.
ARTICLE 6 — TERMINATION
Section 6.1 — Termination Events
This Agreement (other than Section 7.9 (Governing Law), Section 7.10 (Jurisdiction; Venue), and Section 7.13 (Notices), which provisions shall survive any termination of this Agreement) shall terminate and be of no further force or effect upon the earliest to occur of any of the following events:
(a) the closing of a Qualified IPO, as such term is defined in the Restated Certificate, being an initial public offering of the Company's Common Stock pursuant to an effective registration statement filed under the Securities Act, in which (i) the per share price to the public is at least $4.1625 (as equitably adjusted for any stock split, stock dividend, combination, recapitalization, or similar event occurring after the date hereof) and (ii) the aggregate gross proceeds to the Company (before deduction of underwriting discounts, commissions, and offering expenses) are at least $75,000,000;
(b) the consummation of a Deemed Liquidation Event, as such term is defined in the Restated Certificate, including without limitation (i) any merger or consolidation of the Company with or into another Person (other than a merger or consolidation in which the stockholders of the Company immediately prior to such transaction hold a majority of the voting power of the surviving or resulting entity immediately following such transaction), (ii) any sale, lease, exclusive license, transfer, or other disposition of all or substantially all of the assets of the Company, or (iii) any other event that constitutes a Deemed Liquidation Event under the Restated Certificate;
(c) the date on which both of the following conditions are satisfied: (i) the Purchase Agreement and all ancillary transaction agreements contemplated thereby (including this Agreement) have been terminated in accordance with their respective terms, and (ii) no shares of Series B Preferred Stock are issued and outstanding; and
(d) the execution and delivery of a written consent to the termination of this Agreement by each of the following: (i) the Company, acting through a resolution of the Board of Directors duly adopted in accordance with the Restated Certificate and the Company's bylaws; (ii) the holders of a majority of the then-outstanding shares of Preferred Stock held by the Investors, voting together as a single class on an as-converted-to-Common-Stock basis; and (iii) the Key Holders holding a majority of the shares of Transfer Stock then subject to this Agreement.
Section 6.2 — Effect of Termination
Upon the termination of this Agreement pursuant to Section 6.1, all rights and obligations of the Parties under this Agreement shall cease and be of no further force or effect, except that (a) the provisions identified in Section 6.1 as surviving termination shall continue in full force and effect, (b) any rights or obligations that have accrued prior to the date of termination, including any rights arising from breaches of this Agreement occurring prior to such date, shall survive termination and remain enforceable, and (c) the provisions of Article 7 that, by their nature, are intended to survive termination (including Section 7.7 (Specific Performance), Section 7.9 (Governing Law), Section 7.10 (Jurisdiction; Venue), Section 7.11 (Waiver of Jury Trial), and Section 7.14 (Attorneys' Fees)) shall survive termination. Upon termination of this Agreement, the Company shall take all actions reasonably necessary to remove promptly the legends required by Section 5.1 from all certificates (and book-entry notations) representing shares that were subject to this Agreement and to rescind any stop-transfer instructions issued to its transfer agent pursuant to Section 5.2.
ARTICLE 7 — GENERAL PROVISIONS
Section 7.1 — Additional Key Holders; Joinder
Any Person who acquires shares of Capital Stock after the date hereof and who is required by the Board of Directors, or by the terms of any equity incentive plan, stock option agreement, restricted stock agreement, or other agreement with the Company, to become a party to this Agreement as a Key Holder, shall, as a condition precedent to such acquisition, execute and deliver to the Company a joinder agreement substantially in the form attached hereto as Exhibit A, and shall thereupon be deemed a "Key Holder" for all purposes of this Agreement with respect to the shares of Capital Stock so acquired. Similarly, any new Investor who acquires shares of Preferred Stock after the date hereof and who is required by the terms of any stock purchase agreement, subscription agreement, or other arrangement with the Company to become a party to this Agreement, shall execute and deliver a joinder agreement substantially in the form attached hereto as Exhibit A, and shall thereupon be deemed an "Investor" for all purposes of this Agreement with respect to the shares of Preferred Stock so acquired.
Section 7.2 — Amendment and Waiver
(a) This Agreement may be amended, and any provision of this Agreement may be waived, only with the prior written consent of each of the following: (i) the Company; (ii) the holders of a majority of the then-outstanding shares of Capital Stock held by the Investors (on an as-converted-to-Common-Stock basis); and (iii) the Key Holders holding a majority of the shares of Transfer Stock then outstanding and subject to this Agreement.
(b) Any amendment or waiver effected in accordance with Section 7.2(a) shall be binding upon the Company, each Investor, and each Key Holder, including any Investor or Key Holder who did not consent to such amendment or waiver.
(c) Notwithstanding the foregoing, no amendment or waiver of any provision of this Agreement that would adversely and disproportionately affect one Investor or group of Investors differently from the other Investors (in their capacity as Investors) shall be effective without the prior written consent of the Investor or Investors so adversely and disproportionately affected.
(d) No waiver of any provision of this Agreement shall be deemed a waiver of any other provision, nor shall any waiver constitute a continuing waiver unless the written consent expressly so provides.
Section 7.3 — Assignment
The rights of any Party under this Agreement are not assignable, in whole or in part, except (a) by an Investor to a permitted transferee who becomes a party to this Agreement by executing and delivering a joinder agreement in the form of Exhibit A, and (b) as otherwise expressly provided herein with respect to Exempt Transfers in accordance with Article 4. The obligations of the Key Holders under this Agreement may not be assigned or delegated without compliance with the terms and conditions of this Agreement, including the execution and delivery of a joinder agreement by the transferee. Any purported assignment in violation of this Section 7.3 shall be null and void and of no force or effect.
Section 7.4 — Successors and Assigns
Subject to the restrictions on assignment set forth in Section 7.3, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors, heirs, executors, administrators, legal representatives, and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer upon any Person other than the Parties and their respective successors, heirs, executors, administrators, legal representatives, and permitted assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement.
Section 7.5 — Severability
If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future law or regulation, and if the rights or obligations of any Party under this Agreement will not be materially and adversely affected thereby, (a) such provision shall be fully severable, (b) this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part hereof, (c) the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance herefrom, and (d) in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid, and enforceable provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible, and the Parties shall use commercially reasonable efforts to agree upon a provision that achieves, to the greatest extent possible, the economic, business, and other purposes of the original provision.
Section 7.6 — Entire Agreement
This Agreement, together with the Purchase Agreement, the Investors' Rights Agreement dated as of August 15, 2025, the Voting Agreement dated as of August 15, 2025, and the Restated Certificate, constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, warranties, commitments, offers, contracts, and writings of any kind with respect to such subject matter, including without limitation any prior right of first refusal and co-sale agreement or similar agreement among any of the Parties. In the event of any conflict between the terms of this Agreement and the terms of the Purchase Agreement, the Investors' Rights Agreement, or the Voting Agreement, the terms of such other agreement shall control with respect to the subject matter specifically addressed therein, and the terms of this Agreement shall control with respect to the rights of first refusal and co-sale rights specifically addressed herein.
Section 7.7 — Specific Performance
The Parties acknowledge and agree that money damages would be both incalculable and an insufficient remedy for any breach of this Agreement and that any such breach would cause the non-breaching Party or Parties irreparable harm. Accordingly, the Parties agree that, in addition to any other remedies available at law or in equity, each Party shall be entitled to seek and obtain equitable relief, including specific performance and injunctive relief (whether temporary, preliminary, or permanent), as a remedy for any breach or threatened breach of this Agreement, without the necessity of demonstrating actual damages, without the requirement of posting any bond or other security, and without the necessity of proving the inadequacy of monetary damages as a remedy. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement but shall be in addition to all other rights and remedies available at law or in equity to the non-breaching Party or Parties.
Section 7.8 — Delays or Omissions
No delay or omission to exercise any right, power, or remedy accruing to any Party under this Agreement, upon any breach or default of any other Party under this Agreement, shall impair any such right, power, or remedy of such non-breaching or non-defaulting Party, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent, or approval of any kind or character on the part of any Party of any breach or default under this Agreement, or any waiver on the part of any Party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, whether under this Agreement or by law or otherwise afforded to any Party, shall be cumulative and not alternative.
Section 7.9 — Governing Law
This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Delaware, without giving effect to any choice-of-law or conflict-of-laws rules, provisions, or principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
Section 7.10 — Jurisdiction; Venue
Any dispute, controversy, or claim arising out of, relating to, or in connection with this Agreement (including the existence, validity, interpretation, performance, breach, or termination hereof) shall be subject to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, the Superior Court of the State of Delaware, or if neither such court will accept jurisdiction, the United States District Court for the District of Delaware). Each of the Parties hereby irrevocably and unconditionally (a) submits to the personal jurisdiction of such courts, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (c) waives any objection to the laying of venue of any action, suit, or proceeding in any such court, and (d) waives and agrees not to plead or claim in any such court that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.
Section 7.11 — Waiver of Jury Trial
EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.11.
Section 7.12 — Counterparts; Electronic Signatures
This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which counterparts together shall constitute one and the same instrument. The exchange of copies of this Agreement or of signature pages by facsimile, email attachment in portable document format (.pdf), Brightwater Software, or other electronic transmission shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of an original Agreement for all purposes. Signatures of the Parties transmitted by facsimile, email, or other electronic means shall be deemed to be their original signatures for all purposes, and no Party shall raise the use of electronic signatures or the lack of an original signature as a defense to the formation or enforceability of this Agreement.
Section 7.13 — Notices
All notices, requests, demands, consents, waivers, and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered personally to the party to whom directed, (b) on the first business day following the date of deposit with a nationally recognized overnight courier service (such as Severin Partners LLC or Halcyon Partners LLC), with delivery charges prepaid or billed to the sender, (c) when sent by email (with written confirmation of receipt by the recipient, such as a reply email or an automated delivery receipt from the recipient's email system), or (d) on the third business day following the date of mailing by certified or registered mail, return receipt requested, postage prepaid, in each case addressed as follows:
If to the Company:
Heliograph Therapeutics, Inc. 4800 Biopark Drive, Building C, Suite 200 Durham, NC 27709
Attention: Dr. Priya Anand, Chief Executive Officer
Email: panand@heliographtx.com
With a copy (which shall not constitute notice) to:
Breck Alderman & Yost LLP 200 West Main Street, Suite 900 Durham, NC 27701
Attention: Catherine Forsythe
Email: cforsythe@baylaw.com
If to Cobalt:
Cobalt Ventures LP 2200 Sand Hill Road, Suite 310 Menlo Park, CA 94025
Attention: Dr. Elena Marchetti and Tariq Nassar
Email: emarchetti@cobaltventures.com; tnassar@cobaltventures.com
With a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 555 California Street, Suite 3200 San Francisco, CA 94104
Attention: Beatrice Holloway
Email: bholloway@calderwoodharkness.com
If to Pinnacle:
Pinnacle BioVentures Fund II LP 101 Federal Street, Suite 2600 Boston, MA 02110
Attention: Joanna Whitfield
Email: jwhitfield@pinnaclebio.com
If to Lakeshore:
Lakeshore Health Innovation Fund LP 77 West Wacker Drive, Suite 4100 Chicago, IL 60601
Attention: David Hargrove
Email: dhargrove@lakeshorehealth.com
If to Dr. Priya Anand:
Dr. Priya Anand 119 Magnolia Lane Chapel Hill, NC 27514
Email: priya.anand.personal@Northgate Software.com
If to Dr. Marcus Ellington:
Dr. Marcus Ellington 504 Ridgewood Court Durham, NC 27707
Email: marcus.ellington.personal@Northgate Software.com
Any Party may change its address for the purpose of this Section 7.13 by giving written notice of such change to the other Parties in accordance with the provisions of this Section 7.13. Notwithstanding the foregoing, no notice of a change of address shall be effective until actually received by the Party to whom such notice is addressed.
Section 7.14 — Attorneys' Fees
In any action, suit, or proceeding brought by any Party to enforce any provision of this Agreement or to obtain any remedy with respect to a breach hereof, the prevailing Party (as determined by the court or other tribunal having jurisdiction) shall be entitled to recover from the non-prevailing Party its reasonable attorneys' fees, costs, and expenses (including fees and costs on appeal), in addition to any other relief to which such prevailing Party may be entitled.
Section 7.15 — Aggregation of Stock
All shares of Capital Stock held or acquired by Affiliated entities or Persons shall be aggregated together for the purpose of determining the availability of any rights under this Agreement, and such Affiliated entities or Persons may exercise any such rights on an aggregated basis as though all such shares were held by a single Person. For the avoidance of doubt, Cobalt Ventures LP and Cobalt Ventures Management LLC (and any other Affiliates of Cobalt Ventures LP) shall be treated as a single holder for purposes of calculating Pro Rata Share, co-sale participation, and all other rights and obligations under this Agreement. Similarly, shares held by any Investor through Affiliated parallel funds, co-investment vehicles, or alternative investment vehicles shall be aggregated with shares held by such Investor for purposes of this Agreement.
Section 7.16 — Stock Splits, Stock Dividends, Etc.
All references to share quantities and per-share amounts contained in this Agreement shall be appropriately and equitably adjusted to reflect any stock split, reverse stock split, stock dividend, combination, reclassification, recapitalization, or other similar event affecting the number or character of outstanding shares of Capital Stock occurring after the date hereof. In the event of any such adjustment, the Company shall provide prompt written notice to each Investor and each Key Holder setting forth the nature of the adjustment and the revised share quantities and per-share amounts, as applicable.