Exhibit 10.4
SIXTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
AGREEMENT, made as of the 7th day of April, 2000, by and among Exact
Laboratories, Inc. (the "Company"), Xxxxxxx X. Xxxxxxx (the "Founder"), and the
persons listed as Investors on the attached SCHEDULE I (collectively, the
"Investors" and individually, the "Investor").
WHEREAS, the Founder is the beneficial holder of an aggregate of
435,000 shares (the "Founder's Shares") of Common Stock, $.01 par value per
share, of the Company (the "Common Stock"); and certain of the Investors are the
holders of an aggregate of 902,414 shares of Series A Convertible Preferred
Stock, $.01 par value per share (the "Series A Preferred Stock"), 996,196 shares
of Series B Convertible Preferred Stock (the "Series B Preferred Stock") of the
Company, and 1,007,186 shares of Series C Convertible Preferred Stock (the
"Series C Preferred Stock").
WHEREAS, certain of the Investors are acquiring shares of Series D
Convertible Preferred Stock (the "Series D Preferred Stock") (such shares,
together with the 902,414 shares of Series A Preferred Stock and 996,196 shares
of Series B Preferred Stock, 1,007,186 shares of Series C Preferred Stock,
previously referred to, being referred to collectively as the "Preferred
Shares") pursuant to the Series D Convertible Preferred Stock Purchase Agreement
(the "Stock Purchase Agreement") between the Company and certain of the
Investors of even date herewith, with the result that each Investor will own the
number of shares of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and/or Series D Preferred Stock set forth in SCHEDULE I
attached; and
WHEREAS, pursuant to Section 13(d) of the Fifth Amended and Restated
Registration Rights Agreement dated as of March 17, 1998 among the Company, the
Founder, and certain of the Investors (the "Registration Rights Agreement") the
parties thereto desire to amend and restate the Registration Rights Agreement in
its entirety by entering into this Sixth Amended and Restated Registration
Rights Agreement.
NOW THEREFORE, in consideration of the foregoing, and the agreements
set forth below, the parties hereby agree with each other as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the following respective meanings:
"COMMISSION" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"COMMON STOCK" shall mean the Common Stock, $ .01 par value, of the
Company, as constituted as of the date of this Agreement.
"CONVERSION SHARES" shall mean shares of Common Stock issued or
issuable upon conversion of the Preferred Shares.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"REGISTRATION EXPENSES" shall mean the expenses so described in
Section 8.
"RESTRICTED STOCK" shall mean the Conversion Shares and the Founder's
Shares, excluding Conversion Shares and Founder's Shares which have been
(a) registered under the Securities Act pursuant to an effective
registration statement filed thereunder and disposed of in accordance with
the registration statement covering them or (b) publicly sold pursuant to
Rule 144 under the Securities Act.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean the expenses so described in Section 8.
2. RESTRICTIVE LEGEND. Each certificate representing Preferred
Shares or Conversion Shares shall, except as otherwise provided in this Section
2 or in Section 3, be stamped or otherwise imprinted with a legend substantially
in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED
UNDER SUCH ACT AND ALL SUCH APPLICABLE LAWS OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE."
A certificate shall not bear such legend if in the opinion of counsel
satisfactory to the Company (it being agreed that Xxxxx, Xxxxxxx & Xxxxxxxxx,
LLP or Xxxxxxx Xxxx & Xxxxx LLP shall be satisfactory) the securities
represented thereby may be publicly sold without registration under the
Securities Act and any applicable state securities laws.
3. NOTICE OF PROPOSED TRANSFER. Prior to any proposed transfer of
any Preferred Shares or Conversion Shares (other than under the circumstances
described in Sections 4, 5 or 6), the holder thereof shall give written notice
to the Company of its intention to effect such transfer. Each such notice shall
describe the manner of the proposed transfer and, if requested by the Company,
shall be accompanied by an opinion of counsel satisfactory to the Company (it
being agreed that Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP shall be satisfactory) to the
effect that the proposed transfer may be effected without registration under the
Securities Act and any applicable state securities laws, whereupon the holder of
such stock shall be entitled to transfer such stock in accordance with the terms
of its notice; PROVIDED, HOWEVER, that no such opinion of counsel shall be
required for a transfer to one or more members or partners of the
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transferor (in the case of a transferor that is a limited liability company or
partnership) or to an affiliate, entity controlled by an affiliate (as such term
is defined in Rule 405 promulgated under the Securities Act of 1933, as amended)
or subsidiary of such holder or to a successor by operation of law. Each
certificate for Preferred Shares or Conversion Shares transferred as above
provided shall bear the legend set forth in Section 2, except that such
certificate shall not bear such legend if (i) such transfer is in accordance
with the provisions of Rule 144 (or any other rule permitting public sale
without registration under the Securities Act) or (ii) the opinion of counsel
referred to above is to the further effect that the transferee and any
subsequent transferee (other than an affiliate of the Company) would be entitled
to transfer such securities in a public sale without registration under the
Securities Act. The restrictions provided for in this Section 3 shall not apply
to securities which are not required to bear the legend prescribed by Section 2
in accordance with the provisions of that Section.
4. REQUIRED REGISTRATION. (a) At any time after the earliest of
(i) six months after any registration statement covering an initial public
offering of securities of the Company under the Securities Act shall have become
effective or (ii) six months after the Company shall have become a reporting
company under Section 12 of the Exchange Act, the holders of Conversion Shares
constituting at least 30% of the total shares of Conversion Shares then
outstanding may request the Company to register under the Securities Act all or
any portion of the shares of Conversion Shares held by such requesting holder or
holders for sale in the manner specified in such notice, PROVIDED that the
shares of Conversion Shares for which registration has been requested shall
constitute at least 20% of the total shares of Conversion Shares originally
issued if such holder or holders shall request the registration of less than all
shares of Conversion Shares then held by such holder or holders (or any lesser
percentage if the reasonably anticipated aggregate price to the public of such
public offering would exceed $10,000,000). For purposes of this Section 4 and
Sections 5 and 6, the term "Conversion Shares" shall be deemed to include the
number of Conversion Shares which would be issuable to a holder of Preferred
Shares upon the conversion of all Preferred Shares held by such holder at such
time, and for purposes of Section 13(a), the term "Restricted Stock" shall be
deemed to include the number of shares of Conversion Shares which would be
issuable to a holder of Preferred Shares upon conversion of all Preferred Shares
held by such holder at such time, PROVIDED, HOWEVER, that the only securities
which the Company shall be required to register pursuant to Sections 4, 5 or 6
shall be shares of Common Stock, and PROVIDED, FURTHER, HOWEVER, that, in any
underwritten public offering contemplated by this Section 4 or Sections 5 and 6,
the holders of Preferred Shares shall be entitled to sell such Preferred Shares
to the underwriters for conversion and sale of the shares of Common Stock issued
upon conversion thereof. Notwithstanding anything to the contrary contained
herein, no request may be made under this Section 4 within 120 days after the
effective date of a registration statement filed by the Company covering a firm
commitment underwritten public offering in which the holders of Conversion
Shares shall have been entitled to join pursuant to Sections 5 or 6 and in which
there shall have been effectively registered all shares of Restricted Stock as
to which registration shall have been requested.
(b) Following receipt of any notice under this Section 4, the
Company shall immediately notify all holders of Conversion Shares from whom
notice has not been received and shall use its best efforts to register within
30 days of such notice (unless the Company is
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required to conduct an audit of its financial statements, in which case the
Company shall use its best efforts to effect such registration as promptly as is
practical after such 30-day period) under the Securities Act, for public sale in
accordance with the method of disposition specified in such notice from
requesting holders, the number of shares of Conversion Shares specified in such
notice (and in all notices received by the Company from other holders within 30
days after the giving of such notice by the Company). If such method of
disposition shall be an underwritten public offering, the holders of a majority
of Conversion Shares to be sold in such offering may designate the managing
underwriter of such offering, subject to the approval of the Company, which
approval shall not be unreasonably withheld or delayed. The Company shall be
obligated to register Conversion Shares pursuant to this Section 4 on four
occasions only, PROVIDED, HOWEVER, that such obligation shall be deemed
satisfied only when a registration statement covering all Conversion Shares
specified in notices received as aforesaid, for sale in accordance with the
method of disposition specified by the requesting holders, shall have become
effective and, if such method of disposition is a firm commitment underwritten
public offering, all such shares shall have been sold pursuant thereto. If a
registration pursuant to this Section 4 is an underwritten public offering and
the managing underwriter advises the Company in writing that in its opinion the
inclusion of the number of Conversion Shares creates a substantial risk that the
price per share of Common Stock will be reduced, the number of shares of
Conversion Shares to be included in such an underwriting may be reduced (pro
rata among the requesting holders based upon the number of shares requested to
be included therein).
(c) The Company shall be entitled to include in any registration
statement referred to in this Section 4, for sale in accordance with the method
of disposition specified by the requesting holders, shares of Common Stock to be
sold by the Company for its own account, except as and to the extent that, in
the opinion of the managing underwriter (if such method of disposition shall be
an underwritten public offering), such inclusion would adversely affect the
marketing of the Restricted Stock to be sold. Except for registration statements
on Forms X-0, X-0 or any successor thereto, the Company will not file with the
Commission any other registration statement with respect to its Common Stock,
whether for its own account or that of other stockholders, from the date of
receipt of a notice from requesting holders pursuant to this Section 4 until the
completion of the period of distribution of the registration contemplated
thereby.
5. INCIDENTAL REGISTRATION. If the Company at any time (other
than pursuant to Section 4 or Section 6) proposes to register any of its
securities under the Securities Act for sale to the public, whether for its own
account or for the account of other security holders or both (except with
respect to registration statements on Forms X-0, X-0 or another form not
available for registering the Restricted Stock for sale to the public), each
such time it will give written notice to all holders of outstanding Restricted
Stock of its intention so to do. Upon the written request of any such holder,
received by the Company within 30 days after the giving of any such notice by
the Company, to register any of its Restricted Stock, the Company will use its
best efforts to cause the Restricted Stock as to which registration shall have
been so requested to be included in the securities to be covered by the
registration statement proposed to be filed by the Company, all to the extent
requisite to permit the sale or other disposition by the holder of such
Restricted Stock so registered. In the event that any registration pursuant to
this Section 5 shall be,
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in whole or in part, an underwritten public offering of Common Stock, the number
of shares of Restricted Stock to be included in such an underwriting may be
reduced (pro rata among the requesting holders based upon the number of shares
of Restricted Stock owned by such holders) if and to the extent that the
managing underwriter shall be of the opinion that such inclusion would adversely
affect the marketing of the securities to be sold by the Company therein,
PROVIDED, HOWEVER, that such number of shares of Restricted Stock shall not be
reduced if any shares are to be included in such underwriting for the account of
any person other than the Company or requesting holders of Restricted Stock, and
PROVIDED, FURTHER, HOWEVER, that in no event may less than one-third of the
total number of shares of Common Stock to be included in such underwriting be
made available for shares of Restricted Stock. Notwithstanding the foregoing
provisions, the Company may withdraw any registration statement referred to in
this Section 5 without thereby incurring any liability to the holders of
Restricted Stock.
6. REGISTRATION ON FORM S-3. If at any time (i) a holder or
holders of Preferred Shares or Restricted Stock request that the Company file a
registration statement on Form S-3 or any successor thereto for a public
offering of all or any portion of the shares of Restricted Stock held by such
requesting holder or holders, the reasonably anticipated aggregate price to the
public of which would exceed $5,000,000, and (ii) the Company is a registrant
entitled to use Form S-3 or any successor thereto to register such shares, then
the Company shall use its best efforts to register within 30 days of such notice
(unless the Company is required to conduct an audit of its financial statements,
in which case the Company shall use its best efforts to effect such registration
as promptly as is practical after such 30-day period) under the Securities Act
on Form S-3 or any successor thereto, for public sale in accordance with the
method of disposition specified in such notice, the number of shares of
Restricted Stock specified in such notice. Whenever the Company is required by
this Section 6 to use its best efforts to effect the registration of Restricted
Stock, each of the procedures and requirements of Section 4 (including but not
limited to the requirement that the Company notify all holders of Restricted
Stock from whom notice has not been received and provide them with the
opportunity to participate in the offering) shall apply to such registration,
PROVIDED, HOWEVER, that there shall be no limitation on the number of
registrations on Form S-3 which may be requested and obtained under this Section
6, and PROVIDED, FURTHER, HOWEVER, that the requirements contained in the first
sentence of Section 4(a) shall not apply to any registration on Form S-3 which
may be requested and obtained under this Section 6.
7. REGISTRATION PROCEDURES. If and whenever the Company is
required by the provisions of Sections 4, 5 or 6 to use its best efforts to
effect the registration of any shares of Restricted Stock under the Securities
Act, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
(which, in the case of an underwritten public offering pursuant to Section 4,
shall be on Form S-1 or other form of general applicability satisfactory to the
managing underwriter selected as therein provided) with respect to such
securities and use its best efforts to cause such registration statement to
become and remain effective for the period of the distribution contemplated
thereby (determined as hereinafter provided);
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(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above and comply with the provisions of
the Securities Act with respect to the disposition of all Restricted Stock
covered by such registration statement in accordance with the sellers' intended
method of disposition set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted
Stock covered by such registration statement under the securities or "blue sky"
laws of such jurisdictions as the sellers of Restricted Stock or, in the case of
an underwritten public offering, the managing underwriter reasonably shall
request, PROVIDED, HOWEVER, that the Company shall not for any such purpose be
required to qualify generally to transact business as a foreign corporation in
any jurisdiction where it is not so qualified or to consent to general service
of process in any such jurisdiction;
(e) use its best efforts to list the Restricted Stock covered by
such registration statement with any securities exchange on which the Common
Stock of the Company is then listed;
(f) immediately notify each seller of Restricted Stock and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as a result of which
the prospectus contained in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(g) if the offering is underwritten and at the request of any
seller of Restricted Stock, use its best efforts to furnish on the date that
Restricted Stock is delivered to the underwriters for sale pursuant to such
registration: (i) an opinion dated such date of counsel representing the Company
for the purposes of such registration, addressed to the underwriters and to such
seller, stating that such registration statement has become effective under the
Securities Act and that (A) to the best knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Securities
Act, (B) the registration statement, the related prospectus and each amendment
or supplement thereof comply as to form in all material respects with the
requirements of the Securities Act (except that such counsel need not express
any opinion as to financial statements contained therein) and (C) to such other
effects as reasonably may be requested by counsel for the underwriters or by
such seller or its counsel and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to
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the underwriters and to such seller, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five business days prior to the date of such letter)
with respect to such registration as such underwriters reasonably may request;
and
(h) make available for inspection by each seller of Restricted
Stock, any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent retained by
such seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such
registration statement.
For purposes of Section 7(a) and 7(b) and of Section 4(c), the
period of distribution of Restricted Stock in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has completed
the distribution of all securities purchased by it, and the period of
distribution of Restricted Stock in any other registration shall be deemed to
extend until the earlier of the sale of all Restricted Stock covered thereby and
120 days after the effective date thereof.
In connection with each registration hereunder, the sellers of
Restricted Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as reasonably shall
be necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Sections 4, 5 or
6 covering an underwritten public offering, the Company and each seller agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
8. EXPENSES. All expenses incurred by the Company in complying
with Sections 4, 5 and 6, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees and expenses (including
counsel fees) incurred in connection with complying with state securities or
"blue sky" laws, fees of the National Association of Securities Dealers, Inc.,
transfer taxes, fees of transfer agents and registrars, costs of insurance and
fees and disbursements of one counsel for the sellers of Restricted Stock
selected by the holders of a majority of the Restricted Stock to be sold in any
related offering, but excluding any Selling Expenses, are called "Registration
Expenses". All underwriting discounts and selling commissions applicable to the
sale of Restricted Stock are called "Selling Expenses".
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The Company will pay all Registration Expenses in connection with
each registration statement under Sections 4, 5 or 6. All Selling Expenses in
connection with each registration statement under Sections 4, 5 or 6 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
9. INDEMNIFICATION AND CONTRIBUTION. (a) In the event of a
registration of any of the Restricted Stock under the Securities Act pursuant to
Sections 4, 5 or 6, the Company will indemnify and hold harmless each seller of
such Restricted Stock thereunder, each underwriter of such Restricted Stock
thereunder and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such Restricted Stock was registered under the Securities Act
pursuant to Sections 4, 5 or 6, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each such seller, each such underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action, PROVIDED, HOWEVER, that the Company will not be liable in
any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by any such seller, any such underwriter or any such controlling
person in writing specifically for use in such registration statement or
prospectus.
(b) In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Sections 4, 5 or 6, each seller of such
Restricted Stock thereunder, severally and not jointly, will indemnify and hold
harmless the Company, each person, if any, who controls the Company within the
meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or several, to which
the Company or such officer, director, underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Restricted Stock
was registered under the Securities Act pursuant to Sections 4, 5 or 6, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company and each such officer, director, underwriter and controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any
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such loss, claim, damage, liability or action, PROVIDED, HOWEVER, that such
seller will be liable hereunder in any such case if and only to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with information pertaining to such
seller, as such, furnished in writing to the Company by such seller specifically
for use in such registration statement or prospectus, and PROVIDED, FURTHER,
HOWEVER, that the liability of each seller hereunder shall be limited to the
proportion of any such loss, claim, damage, liability or expense which is equal
to the proportion that the public offering price of the shares sold by such
seller under such registration statement bears to the total public offering
price of all securities sold thereunder, but not in any event to exceed the
proceeds received by such seller from the sale of Restricted Stock covered by
such registration statement and (ii) that the Seller will not be liable in any
such case to the extent that any such loss, claim, damage, liability or action
arises out of or is based upon an untrue or alleged untrue statement or omission
or an alleged omission made in any preliminary prospectus of final prospectus if
(1) the Company, underwriter, or controlling a person failed to send or deliver
a copy of the final prospectus or prospectus supplement with or prior to the
delivery of written confirmation of the sale of the Restricted Stock, and (2)
the final prospectus or prospectus supplement would have corrected such untrue
statement or omission.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 9 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 9 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, PROVIDED,
HOWEVER, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred.
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(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) any
holder of Restricted Stock exercising rights under this Agreement, or any
controlling person of any such holder, makes a claim for indemnification
pursuant to this Section 9 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 9 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of any such selling holder
or any such controlling person in circumstances for which indemnification is
provided under this Section 9; then, and in each such case, the Company and such
holder will contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in such proportion
so that such holder is responsible for the portion represented by the percentage
that the public offering price of its Restricted Stock offered by the
registration statement bears to the public offering price of all securities
offered by such registration statement, and the Company is responsible for the
remaining portion; PROVIDED, HOWEVER, that, in any such case, (A) no such holder
will be required to contribute any amount in excess of the public offering price
of all such Restricted Stock offered by it pursuant to such registration
statement; and (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
10. CHANGES IN COMMON STOCK OR PREFERRED SHARES. If, and as often
as, there is any change in the Common Stock or the Preferred Shares by way of a
stock split, stock dividend, combination or reclassification, or through a
merger, consolidation, reorganization or recapitalization, or by any other
means, appropriate adjustment shall be made in the provisions hereof so that the
rights and privileges granted hereby shall continue with respect to the Common
Stock or the Preferred Shares as so changed.
11. RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Restricted Stock to the public without registration,
at all times after 90 days after any registration statement covering a public
offering of securities of the Company under the Securities Act shall have become
effective, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each holder of Restricted Stock forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such holder to sell any Restricted Stock without
registration.
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12. Form S-3 Qualification. The Company will use its best efforts
to comply with the reporting and filing provisions that are prerequisites to is
se of a Form S-3 under the Securities Act.
13. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement by
the Company have been duly authorized by all requisite corporate action and will
not violate any provision of law, any order of any court or other agency of
government, the charter or by-laws of the Company or any provision of any
indenture, agreement or other instrument to which it or any or its properties or
assets is bound, conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the properties or assets of
the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
14. MISCELLANEOUS.
(a) All covenants and agreements contained in this Agreement by
or on behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto (including without
limitation transferees of any Preferred Shares or Restricted Stock), whether so
expressed or not, PROVIDED, HOWEVER, that registration rights conferred herein
on the holders of Preferred Shares or Restricted Stock shall only inure to the
benefit of a transferee of Preferred Shares or Restricted Stock if (i) there is
transferred to such transferee by the transferor at least 20% of the total
shares of Founders Shares, Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock or Series D Preferred Stock originally issued to such
Investor(pursuant to a subscription agreement or pursuant to the Series B
Convertible Preferred Stock Purchase Agreement, the Series C Preferred Stock
Purchase Agreement or the Series D Convertible Stock Purchase Agreement) (ii)
such transferee is a partner, shareholder, affiliate or an entity which is
controlled by an affiliate of a party hereto.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered in person, mailed by
certified or registered mail, return receipt requested, or sent by telecopier or
telex, addressed as follows:
if to the Company or any other party hereto, at the address of such
party set forth in the applicable Purchase Agreement;
if to any subsequent holder of Preferred Shares or Restricted Stock, to
it at such address as may have been furnished to the Company in writing by
such holder;
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or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Preferred Shares or
Restricted Stock) or to the holders of Preferred Shares or Restricted Stock (in
the case of the Company) in accordance with the provisions of this paragraph.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
(d) This Agreement may not be amended or modified, and no
provision hereof may be waived, without the written consent of the Company and
the holders of at least two-thirds of the number of shares of Common Stock
issued or issuable upon conversion of all Preferred Shares at the time of such
amendment, modification or waiver.
(e) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(f) The obligations of the Company to register shares of
Restricted Stock under Sections 4, 5 or 6 shall terminate on the fifteenth
anniversary of the date of this Agreement.
(g) If requested in writing by the underwriters for the initial
underwritten public offering of securities of the Company, each holder of
Restricted Stock who is a party to this Agreement shall agree not to sell
publicly any shares of Restricted Stock or any other shares of Common Stock
(other than shares of Restricted Stock or other shares of Common Stock being
registered in such offering), without the consent of such underwriters, for a
period of not more than 180 days following the effective date of the
registration statement relating to such offering; PROVIDED, HOWEVER, that all
persons entitled to registration rights with respect to shares of Common Stock
who are not parties to this Agreement, all other persons selling shares of
Common Stock in such offering, all persons holding in excess of 1% of the
capital stock of the Company on a fully diluted basis and all executive officers
and directors of the Company shall also have agreed not to sell publicly their
Common Stock under the circumstances and pursuant to the terms set forth in this
Section 13(g).
(h) Notwithstanding the provisions of Section 7(a), the Company's
obligation to file a registration statement, or cause such registration
statement to become and remain effective, shall be suspended for a period not to
exceed 90 days in any 24-month period (or until the material nonpublic
information is made public) if there exists at the time material non-public
information relating to the Company which the Board of Directors of the Company
determines in good faith is not in the best interests of the Company to be
disclose (the "Blackout Period"). The Company shall promptly notify (but in no
event later than two business days following the determination of the Board of
Directors) those holders of Restricted Stock who have requested registration
pursuant to this Agreement of any Blackout Period and shall include in such
Blackout Notice an undertaking by the Company to promptly notify such holders of
Restricted
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Stock as soon as a registration statement may be effected or sales
may resume; provided, however, that the Company may only suspend its obligation
to file a registration statement pursuant to this Section 14(h) within thirty
(30) days of the delivery of the notice requesting a registration statement. In
making any such determination to suspend or terminate a Blackout Period, the
Company shall not be required to consult with or obtain the consent of any
holder of Restricted Stock, and any such determination shall be made solely by
the Board of Directors of the Company. Each holder of Restricted Stock shall
treat all notices received from the Company pursuant to this Section 14(h) in
the strictest confidence and shall not disseminate such information.
(i) The Company shall not grant to any third party any
registration rights more favorable than or inconsistent with any of those
contained herein, so long as any of the registration rights under this Agreement
remains in effect.
(j) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
(k) In the event shares of Preferred Stock or Restricted Stock
are transferred pursuant to Section 14(a) hereof, such transferee shall become
entitled to the benefits conferred by this Agreement. Additional transfers shall
become parties to this Agreement by executing and delivering a Signature Page,
and at such time the Company shall amend Schedule I attached hereto to include
such Additional Investor and send notice of the amendment to all other
Investors.
-13-
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
COMPANY:
EXACT LABORATORIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Xxxxxxx X. Xxxxxxx
President
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SIXTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
INVESTOR SIGNATURE PAGE
By executing this counterpart signature page, the undersigned agrees to
and accepts the Sixth Amended and Restated Registration Rights Agreement between
the undersigned and Exact Laboratories, Inc. and hereby authorizes this
counterpart signature page to be attached to such Agreement.
FOUNDER:
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
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SCHEDULE I
INVESTORS IN SERIES A PREFERRED STOCK
INVESTORS SHARES
One Liberty Fund III, L.P. 403,821
Xxxxxxx X. Xxxxxxx 126,295
Gilde International BV 4,079
Greylock Equity Limited Partnership 279,858
Xxxxxxxxx X. Xxxxx 8,620
Xxxxx Xxxx 43,103
Xxxxxx Xxxxxx, PhD. 21,552
Xxxxx Xxxxxxx 15,086
==================================================================
TOTAL 902,414
INVESTORS IN SERIES B PREFERRED STOCK
INVESTORS SHARES
One Liberty Fund III, L.P. 278,481
Greylock Equity Limited Partnership 278,481
Highland Capital Partners III Limited Partnership 267,341
Highland Entrepreneurs' Fund Limited Partnership 11,139
RS & Co., Limited Partners 86,075
Bayview Investors, Ltd. 15,189
Xxxxxxx X. Xxxxxxx 5,063
Xxxxxxx Xxxxxx & Co., Inc. 7,594
FBO: Xxxxxxx X. Xxxxxxx
Xxxxx Xxxx 2,531
Xxxxxxxxx X. Xxxxx 2,531
Xxxxxx X. Xxxxxxx 5,063
Xxxxxx X. Xxxx 5,063
Xxxxxxxx X. Xxxxxxx 6,329
Xxxxxxx X. Xxxxxxx 25,316
==================================================================
TOTAL 996,196
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INVESTORS IN SERIES C PREFERRED STOCK
INVESTORS SHARES
Highland Capital Partners III Limited Partnership 256,000
Highland Entrepeneurs' Fund III Limited Partnership 10,666
One Liberty Fund III, L.P. 95,238
One Liberty Fund IV, L.P. 95,238
Greylock Equity Limited Partnership 190,476
CB Healthcare Fund, L.P. 119,047
Mayo Foundation for Medical Education and Research 80,952
B.U.N.P. 38,095
HLM Partners VII, LP 71,428
RS & Co., Limited Partners 36,428
Bayview Investors, Ltd. 6,429
Xxxxxxx X. Xxxxxxxx 952
Xxxxxxx X. Xxxxxx 000
Xxxxx Xxxxxxxxxxxx 000
Xxxxxxx X. Xxxxxxx 2,381
Xxxxxx Xxxxxx 1,000
Xxxxxx X. Xxxxxxx 952
==================================================================
TOTAL 1,007,186
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SIXTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
ADDITIONAL INVESTOR SIGNATURE PAGE
By executing this counterpart signature page, the undersigned agrees to
and accepts the Sixth Amended and Restated Registration Rights Agreement between
the undersigned and Exact Laboratories, Inc. and the persons listed as Investors
on SCHEDULE I thereto, and hereby authorizes this counterpart signature page to
be attached to such Agreement.
INVESTOR:
-----------------
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