Exhibit 4.1
Warrant No. W-1
THE SECURITIES ISSUABLE UPON EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES
LAW, AND MAY NOT BE ACQUIRED UPON EXERCISE HEREUNDER, SOLD,
TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF UNLESS (i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH
REGARD THERETO, OR (ii) AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS AVAILABLE IN
CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
COMMON STOCK PURCHASE
WARRANT
To Purchase Shares of Common Stock of
EXACT SCIENCES
CORPORATION
THIS COMMON STOCK PURCHASE WARRANT
(the “ Warrant ”) certifies that, for value
received, MAYO Foundation for Medical Education and Research
(“ Mayo ”, and together with any other
registered holder(s) hereunder, the “ Holder ”),
is entitled, upon the terms and subject to the limitations on
exercise and the conditions hereinafter set forth, at any time on
or after the date hereof (the “ Initial Exercise Date
”) and on or prior to the close of business on the six-year
anniversary of the Initial Exercise Date (the “
Termination Date ”) but not thereafter, to subscribe
for and purchase from EXACT Sciences Corporation, a Delaware
corporation (the “ Company ”), up to One Million
(1,000,000) shares (the “ Warrant Shares ”) of
Common Stock, par value $0.01 per share, of the Company (the
“ Common Stock ”). The purchase price of
one share of Common Stock under this Warrant shall be equal to the
Exercise Price, as defined in Section 2(b).
Section 1.
License Agreement
. This Warrant is being issued
in connection with that certain License Agreement (the “
License Agreement ”), dated June 11, 2009, between the
Company and Mayo, as consideration for the licenses granted to the
Company thereunder.
Section 2.
Exercise .
a)
Exercise of Warrant
. Subject to compliance with
applicable securities laws, exercise of the purchase rights
represented by this Warrant may be made, in whole or in part, at
any time or times on or after the Initial Exercise Date and on or
before the Termination Date by delivery to the Company of a duly
executed facsimile copy of the Notice of Exercise Form annexed
hereto (or such other office or agency of the Company as it may
designate by notice in writing to the registered Holder at the
address of such Holder appearing on the books of the Company);
provided , however , within five Trading Days (as
defined below) of the date said Notice of Exercise is delivered to
the Company, if this Warrant is exercised in full, the Holder shall
have surrendered this Warrant to the Company and the Company shall
have received payment of the aggregate Exercise Price of the
Warrant Shares thereby purchased by wire
transfer or cashier’s check drawn on a
United States bank. Notwithstanding anything herein to the
contrary, the Holder shall not be required to physically surrender
this Warrant to the Company until the Holder has purchased all of
the Warrant Shares available hereunder and the Warrant has been
exercised in full. Partial exercises of this Warrant
resulting in purchases of a portion of the total number of Warrant
Shares available hereunder shall have the effect of lowering the
outstanding number of Warrant Shares purchasable hereunder in an
amount equal to the applicable number of Warrant Shares
purchased. The Holder and the Company shall maintain records
showing the number of Warrant Shares purchased and the date of such
purchases. The Company shall deliver any objection to any
Notice of Exercise Form within five Business Days (as defined
below) of receipt of such notice. In the event of any dispute
or discrepancy, the records of the Company shall be controlling and
determinative in the absence of manifest error. The Holder
and any assignee, by acceptance of this Warrant, acknowledge and
agree that, by reason of the provisions of this paragraph,
following the purchase of a portion of the Warrant Shares
hereunder, the number of Warrant Shares available for purchase
hereunder at any given time may be less than the amount stated on
the face hereof. As used in this Warrant, “ Trading
Day ” means a day on which the Common Stock is traded on
one of the following markets or exchanges on which the Common Stock
is listed or quoted for trading on the date in question: the Nasdaq
Capital Market, the American Stock Exchange, the New York Stock
Exchange, the Nasdaq Global Market, the Nasdaq Global Select Market
or the OTC Bulletin Board (each, a “ Trading Market
”). If for any period prior to the Termination Date the
Common Stock ceases to trade on a Trading Market, the term “
Business Day ”, meaning any day other than a Saturday,
Sunday or legal holiday, shall replace the term “Trading
Day” in this Warrant for such period.
b)
Exercise Price
. The per share exercise price
of the Common Stock under this Warrant shall be $1.90, subject to
adjustment hereunder (the “ Exercise Price
”).
c)
Cashless Exercise
. This Warrant may also be
exercised at any time in whole or in part by means of a
“cashless exercise” in which the Holder shall be
entitled to receive a certificate for the number of Warrant Shares
equal to the quotient obtained by dividing [(A-B) (X)] by (A),
where:
(A)
= the VWAP on the Trading Day
immediately preceding the date of such election;
(B)
= the Exercise Price of this
Warrant, as adjusted; and
(X)
= the number of Warrant Shares for
which the cashless exercise is elected that are issuable upon
exercise of this Warrant in accordance with the terms of this
Warrant by means of a cash exercise rather than a cashless
exercise.
For the purposes of this Section
2(c), “ VWAP ” means, for any date, the price
determined by the first of the following clauses that
applies: (i) if the Common Stock is then listed or quoted on
a Trading Market, the daily volume weighted average price of the
Common Stock for such date (or the nearest preceding date) on the
Trading Market on which the Common Stock is then listed or quoted
for trading as reported by Bloomberg L.P. (based on a Trading Day
from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City
time); (ii) if the Common Stock is not then quoted for trading on a
Trading Market and if prices for the Common Stock are
then
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reported in the “Pink Sheets”
published by Pink Sheets, LLC (or a similar organization or agency
succeeding to its functions of reporting prices), the most recent
bid price per share of the Common Stock so reported; or (iii) in
all other cases, the fair market value of a share of Common Stock
as determined by an independent appraiser selected in good faith
and paid for by the Company and reasonably acceptable to the
Holder.
d)
Mechanics of Exercise
.
i.
Authorization of Warrant
Shares . The
Company covenants that all Warrant Shares which may be issued upon
the exercise of the purchase rights represented by this Warrant
will, upon exercise of the purchase rights represented by this
Warrant, be duly authorized, validly issued, fully paid and
nonassessable and free from all taxes, liens and charges in respect
of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously with such issue).
ii.
Delivery of Certificates Upon
Exercise .
Certificates for shares purchased hereunder shall be transmitted by
the transfer agent of the Company to the Holder by crediting the
account of the Holder’s prime broker with the Depository
Trust Company through its Deposit Withdrawal Agent Commission
(“ DWAC ”) system if the Company is a
participant in such system, and otherwise by physical delivery to
the address specified by the Holder in the Notice of Exercise
within three Trading Days from the delivery to the Company of the
Notice of Exercise Form, surrender of this Warrant (if required)
and payment of the aggregate Exercise Price as set forth above
(“ Warrant Share Delivery Date ”). This
Warrant shall be deemed to have been exercised on the date the
Exercise Price is received by the Company. The Warrant Shares
shall be deemed to have been issued, and Holder or any other person
so designated to be named therein shall be deemed to have become a
holder of record of such shares for all purposes, as of the date
the Warrant has been exercised by payment to the Company of the
Exercise Price.
iii.
Restrictive Legend
. The Holder understands that unless
the Warrant Shares may be sold pursuant to Rule 144 under the
Securities Act or another exemption from registration under the
Securities Act without any restriction as to the number of
securities as of a particular date that can then be immediately
sold, the Warrant Shares may bear a restrictive legend in
substantially the form included on this Warrant (and a
stop-transfer order may be placed against transfer of the
certificates for such securities).
iv.
Delivery of New Warrants Upon
Exercise . If this
Warrant shall have been exercised in part, the Company shall, at
the request of a Holder and upon surrender of this Warrant
certificate, at the time of delivery of the certificate or
certificates representing Warrant Shares, deliver to Holder a new
Warrant evidencing the rights of Holder to purchase the unpurchased
Warrant Shares called for by this Warrant, which new Warrant shall
in all other respects be identical with this Warrant.
v.
No Fractional Shares or
Scrip . No
fractional shares or scrip representing fractional shares shall be
issued upon the exercise of this Warrant. As to any fraction
of a share which Holder would otherwise be entitled to purchase
upon such exercise, the
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Company shall pay a cash adjustment
in respect of such final fraction in an amount equal to such
fraction multiplied by the Exercise Price.
Section 3.
Certain Adjustments
.
a)
Stock Dividends and
Splits .
