a417_invitae-projectorio






     REGISTRATION RIGHTS AGREEMENT    This Registration Rights Agreement (this “Agreement”) is made and entered into as of  February 8, 2021 (the “Effective Date”) by and among Invitae Corporation, a Delaware  corporation (the “Company”), and certain securityholders of Reference Genomics, Inc. d/b/a One  Codex, a Delaware corporation (“One Codex”) listed on Exhibit A hereto (each such  securityholder, as well as any permitted transferee of Registrable Securities (as defined below)  hereunder, in each case to the extent holding Registrable Securities, a “Holder” and collectively,  the “Holders”). Terms used but not otherwise defined herein shall have the meaning ascribed to  such terms in the Merger Agreement (as defined below).     RECITALS    WHEREAS, the Company, One Codex, Orion Merger Sub A Inc., a Delaware corporation  and wholly owned subsidiary of the Company (“Merger Sub A”), Orion Merger Sub B LLC, a  Delaware limited liability company and wholly owned subsidiary of the Company (“Merger Sub  B”), and Fortis Advisors LLC, a Delaware limited liability company, as Holders’ Representative  (as defined therein), have entered into that certain Agreement and Plan of Merger dated as of  February 3, 2021 (the “Merger Agreement”), pursuant to which (i) Merger Sub A will be merged  with and into One Codex, and One Codex shall continue as the surviving entity and wholly owned  subsidiary of the Company (the “Reverse Merger”) and (ii) promptly thereafter as part of the  same overall transaction, and in all cases on the Closing Date, One Codex will be merged with and  into Merger Sub B, and Merger Sub B shall continue as the surviving entity and wholly owned  subsidiary of the Company (the “Forward Merger” and, together with the Reverse Merger, the  “Mergers”);  WHEREAS, in connection with the Mergers and pursuant to the Merger Agreement, the  Company issued to the Holders at the Closing shares of the Company’s common stock, par value  $0.0001 per share, identified on Exhibit A hereto as Stock Consideration Shares (the “Shares”)  pursuant to the Merger Agreement; and    WHEREAS, in connection with the consummation of the transactions contemplated by the  Merger Agreement, the Company agreed to grant certain registration rights to the Holders as set  forth in this Agreement.    NOW, THEREFORE, in consideration of the mutual covenants and agreements contained  herein, the parties agree as follows:    ARTICLE I  DEFINITIONS    Section 1.1 Definitions. For purposes of this Agreement, the following terms and  variations thereof have the meanings set forth below:    “Affiliate” means, with respect to any person, any other person that, directly or  indirectly, controls, or is controlled by, or is under common control with, such person. For this  purpose: (a) “control” (including, with its correlative meanings, “controlled by” and “under  





 






   2    common control with”) means the possession, directly or indirectly, of the power to direct or cause  the direction of management or policies of a Person, whether through the ownership of securities  or partnership or other ownership interests, by contract or otherwise; and (b) “person” means any  natural person, corporation, limited liability company, partnership, association, trust or other  entity.    “Agreement” has the meaning set forth in the preamble.    “Business Day” means any day, other than a Saturday, Sunday or one on which  banks are authorized by law to be closed in New York, New York.    “Company” has the meaning set forth in the preamble.    “Company Indemnitee” has the meaning set forth in Section 4.1(b).    “Effective Date” has the meaning set forth in the preamble.    “Effectiveness Period” has the meaning set forth in Section 3.1(b).    “Exchange Act” means the Securities Exchange Act of 1934.    “Grace Period” has the meaning set forth in Section 3.2(h).    “Holder” has the meaning set forth in the preamble.     “Holder Indemnitee” has the meaning set forth in Section 4.1(a).    “Indemnified Party” has the meaning set forth in Section 4.1(c).    “Indemnifying Party” has the meaning set forth in Section 4.1(c).    “Merger Agreement” has the meaning set forth in the recitals.    “One Codex” has the meaning set forth in the preamble.    “Registrable Securities” means the Shares issued to the Holders pursuant to the  Merger Agreement and any securities issued or issuable upon any stock split, dividend or other  distribution, recapitalization or similar event with respect to such securities; provided, however,  that Registrable Securities shall cease to be Registrable Securities with respect to a particular  Holder when (i) such securities have been disposed of in accordance with the Registration  Statement or pursuant to Rule 144; (ii) such securities may be sold pursuant to Rule 144 without  any limitation as to manner-of-sale restrictions or volume limitations; or (iii) such securities cease  to be outstanding.    “Registration Expenses” means all expenses incurred by the Company in effecting  the registration pursuant to this Agreement, including all registration and filing fees, printing  





 






   3    expenses, fees and disbursements of counsel for the Company, “blue sky” fees and expenses, and  expenses of the Company’s independent registered public accounting firm in connection with any  regular or special reviews or audits incident to or required by any such registration, but shall not  include Selling Expenses.    “Registration Statement” has the meaning set forth in Section 3.1.    “Rule 144” means Rule 144 under the Securities Act or any successor or other  similar rule, regulation or interpretation of the SEC that may at any time permit the sale of  Registrable Securities to the public without registration.    “Rule 405” means Rule 405 under the Securities Act or any successor or other  similar rule.    “Rule 415” means Rule 415 under the Securities Act or any successor or other  similar rule providing for offering securities on a continuous or delayed basis.    “Rule 424” means Rule 424 under the Securities Act or any successor or other  similar rule.    “Shares” has the meaning set forth in the recitals.    “SEC” means the Securities and Exchange Commission.    “Securities Act” means the Securities Act of 1933.    “Selling Expenses” means all discounts, selling commissions, fees of selling  brokers, dealer managers and similar securities industry professionals and stock transfer taxes  applicable to the sale of Registrable Securities and fees and disbursements of counsel for any  Holder (other than the fees and disbursements of counsel for the Company included in Registration  Expenses).    “Transfer” means, directly or indirectly, to sell, transfer, assign, pledge, encumber,  hypothecate or similarly dispose of (by merger, testamentary disposition, operation of law or  otherwise), either voluntarily or involuntarily, or to enter into any contract, option or other  arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance,  hypothecation or similar disposition of (by merger, testamentary disposition, operation of law or  otherwise) any Shares.    “Violation” has the meaning set forth in Section 4.1(a).    ARTICLE II  TRANSFER RESTRICTIONS    Section 2.1 General Transfer Restrictions. The right of any Holder to Transfer any  Shares held by it is subject to the restrictions set forth below.  





 






   4      (a) Each Holder acknowledges that the Shares have not been registered under  the Securities Act and may not be Transferred except pursuant to an effective registration statement  under the Securities Act or pursuant to an exemption from registration under the Securities Act.  Each Holder covenants that the Shares will only be disposed of pursuant to an effective registration  statement under, and in compliance with the requirements of, the Securities Act or pursuant to an  available exemption from the registration requirements of the Securities Act, and in compliance  with any applicable state and foreign securities laws. In connection with any Transfer of the Shares  other than a Transfer (i) pursuant to an effective registration statement, (ii) to the Company, (iii)  pursuant to Rule 144 or (iv) if Holder is a venture capital or private equity fund, a customary  distribution to its partners or members for no consideration, the Company may require the Holder  to provide to the Company an opinion of counsel selected by the Holder and reasonably acceptable  to the Company, the form and substance of which opinion shall be reasonably satisfactory to the  Company, to the effect that such Transfer does not require registration under the Securities Act;  provided, however, that prior to any transfer pursuant to clause (iv) above, each transferee shall  agree in writing to be bound by this Agreement (it being understood that the rights of the transferor  under this Agreement shall likewise be deemed assigned to such transferee upon such transfer).  (b) Each Holder agrees to the affixing, so long as is required by this Section  2.1, of the following legend on any certificate or book-entry position evidencing any of the Shares:  THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER  THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR  ANY STATE SECURITIES LAWS AND MAY NOT BE  TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION  OR AN EXEMPTION THEREFROM UNDER THE ACT AND THE  RULES AND REGULATIONS THEREUNDER AND APPLICABLE  STATE SECURITIES LAWS.  Certificates or book-entry positions evidencing the Shares shall not be required to contain such  legend or any other legend (i) following any sale of such Shares pursuant to an effective  registration statement (including the Registration Statement described in Section 3.1) covering the  resale of the Shares, (ii) following any sale of such Shares pursuant to Rule 144 or if the Shares  are transferrable by a person who is not an Affiliate of the Company or the applicable Holder  pursuant to Rule 144 without any volume or manner of sale restrictions thereunder, (iii) if Holder  is not an Affiliate of the Company, six (6) months following the Closing, provided, however, that  in the case of (i), (ii) and (iii), above, the Holder provides the Company with customary legal  representation letters reasonably acceptable to the Company, or (iv) if the Holder provides the  Company with a legal opinion reasonably acceptable to the Company to the effect that the legend  is not required under applicable requirements of the Securities Act. Whenever such restrictions  shall cease and terminate as to any Shares the Holder of such securities shall be entitled to receive  from the Company upon a written request in writing, without expense, new securities of like tenor  not bearing the legend set forth herein, and such new securities shall be issued promptly, but in no  event less than five (5) Business Days after a written request to remove such legends.     





 






   5    (c) Notwithstanding anything herein to the contrary, following registration of  the Shares, each Holder agrees not to sell any Shares issued to such Holder if the sales of such  shares would, when combined with the sale of any other Shares by such Holder in any one (1) day  period, exceed five percent (5%) of the average daily trading volume of the Company’s common  stock on the New York Stock Exchange over the five (5) trading days preceding such date of sale;  provided, however, that if the aggregate number of Shares represents less than fifty percent (50%)  of the average daily trading volume of the Company’s common stock on the New York Stock  Exchange over the five (5) trading days preceding the Closing Date (the “Average Volume”),  such resale volume limitations shall not apply.  If the aggregate number of Shares issued to a  Holder represents more than the Average Volume, the Company may place such legends or stock  transfer restrictions on the Shares as shall be appropriate for enforcing the provisions of this  Section 2(c).      ARTICLE III  REGISTRATION AND PROCEDURES    Section 3.1 S-3 Registration.    (a) In compliance with the terms of this Agreement, the Company shall prepare  and file with the SEC a registration statement on Form S-3ASR (or such other form that the  Company is then eligible to use if not eligible to use Form S-3ASR) covering the resale as a  secondary offering to be made on a continuous basis pursuant to Rule 415 of all Registrable  Securities.  The registration statement (or new registration statement) required to be filed pursuant  to this Section 3.1, together with any amendments and supplements to such registration statement,  including post-effective amendments, and all exhibits and all materials incorporated by reference  in such registration statement other than a registration statement on Form S-4 or S-8, is referred to  herein as the “Registration Statement.”    (b) The Company shall exercise commercially reasonable efforts to prepare and  file the Registration Statement with the SEC no later than fifteen (15) Business Days after the  Closing Date; provided, however, that no filing of such Registration Statement shall be required  (i) during any period in which the Company’s insider trading policy would prohibit executive  officers of the Company from trading in the Company’s securities, or (ii) prior to the date which  is two (2) days following the Company’s first filing with the SEC after the Closing Date of an  Annual Report on Form 10-K or a Quarterly Report on Form 10-Q.  Subject to the terms of this  Agreement, the Company shall use commercially reasonable efforts to have the Registration  Statement declared effective as soon as practicable after such filing if not otherwise effective upon  filing and to keep the Registration Statement continuously effective and in compliance with the  Securities Act and usable for resale of Registrable Securities covered thereby from the date of its  initial effectiveness until the earlier of (i) the date on which such Registrable Securities have been  disposed of in accordance with the Registration Statement or pursuant to Rule 144 or (ii) such  Registrable Securities may be sold pursuant to Rule 144 without any limitation as to manner-of- sale restrictions or volume limitations (such period, the “Effectiveness Period”); provided,  however, that nothing in this Agreement shall require the Company to maintain any Registration  Statement once the Shares cease to be Registrable Securities.  





 






   6      (c) It shall be a condition precedent to the obligations of the Company to take  any action pursuant to Section 3.1 or Section 3.2 with respect to Registrable Securities of a Holder  that the Holder shall furnish to the Company such information regarding such Holder as required  under Section 3.4(a).    Section 3.2 Registration Procedures; Company Obligations.  The Company shall use  commercially reasonable efforts to effect the registration of the Registrable Securities in  accordance with Section 3.1, and in connection therewith shall have the following obligations:    (a) No later than the first Business Day after the Registration Statement  becomes effective, the Company shall file with the SEC the final prospectus included therein  pursuant to Rule 424.  The Registration Statement, including any preliminary prospectus or final  prospectus contained therein or any amendments or supplements thereto, shall comply as to form  and content with the applicable requirements of the Securities Act and shall not contain any untrue  statement of a material fact or omit to state a material fact required to be stated therein, or necessary  to make the statements therein, in light of the circumstances in which they were made, not  misleading.    (b) Subject to Section 3.2(h), the Company shall prepare and file with the SEC  such amendments and supplements to the Registration Statement and the prospectus used in  connection with the Registration Statement as may be necessary to keep the Registration Statement  effective and usable for resale of the Registrable Securities covered thereby at all times during the  Effectiveness Period.  The Company shall use commercially reasonable efforts to cause any post- effective amendment to the Registration Statement that is not effective upon filing to become  effective as soon as practicable after such filing.  No later than the first Business Day after a post- effective amendment to the Registration Statement becomes effective, the Company shall file with  the SEC the final prospectus or prospectus supplement included therein pursuant to Rule 424.    (c) The Company shall as promptly as practicable notify the Holders of the time  when the Registration Statement becomes effective or an amendment or supplement to any  prospectus forming a part of such Registration Statement has been filed. The Company shall  furnish to the Holders, without charge, such documents, including copies of any preliminary  prospectus or final prospectus contained in the Registration Statement or any amendments or  supplements thereto, as such Holder may reasonably request from time to time in order to facilitate  the disposition of the Registrable Securities covered by the Registration Statement.    (d) The Company shall use commercially reasonable efforts to register or  qualify, and cooperate with the Holders of Registrable Securities covered by the Registration  Statement in connection with the registration or qualification of such Registrable Securities for  offer and sale under the securities or “blue sky” laws of each state and other jurisdiction of the  United States as any such Holder reasonably requests in writing, and do any and all other things  reasonably necessary or advisable to keep such registration or qualification in effect; provided,  however, that the Company shall not be required to qualify generally to do business in any  jurisdiction where it is not then so qualified or take any action which would subject it to taxation  or general service of process in any such jurisdiction where it is not then so subject.  





 






   7      (e) The Company shall promptly notify (which notice shall be accompanied by  an instruction to suspend the use of the prospectus) the Holders when a prospectus relating thereto  is required to be delivered under the Securities Act of the happening of any event as a result of  which any prospectus included in, or relating to, the 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, in light of the circumstances in which they  were made, not misleading (provided that in no event shall such notice contain any material, non- public information), and, subject to Section 3.2(h), promptly prepare and file with the SEC a  supplement to the related prospectus or amendment to such Registration Statement or any other  required document so that, as thereafter delivered to the Holders, the prospectus will not contain  an untrue statement of a material fact or omit to state any material fact required to be stated therein,  or necessary to make the statements therein, in light of the circumstances under which they were  made, not misleading.    (f) The Company shall use commercially reasonable efforts to prevent the  issuance of any stop order or other suspension of effectiveness of the Registration Statement, or  the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction  and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension  as soon as reasonably practicable and to notify the Holders of the issuance of such order and the  resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for  such purpose.    (g) The Company shall use commercially reasonable efforts to cause the  Registrable Securities covered by the Registration Statement to be (i) listed on the New York Stock  Exchange and (ii) reflected in the stock ledger maintained by the Company’s transfer agent.    (h) Notwithstanding anything in this Agreement to the contrary, at any time  after the Registration Statement becomes effective the Company may delay the disclosure of  material, non-public information concerning the Company or any of its subsidiaries if the Board  of Directors of the Company has a valid business reason for determining that disclosure of such  information is not in the best interests of the Company and such disclosure is not otherwise  required (a “Grace Period”); provided, however, that  the Company shall promptly (i) provide  written notice to the Holders of the Grace Period (provided that in no event shall such notice  contain any material, non-public information) and the date on which the Grace Period will begin,  (ii) use commercially reasonable efforts to terminate a Grace Period as promptly as possible, and  (iii) provide written notice to the Holders of the date on which the Grace Period ends; provided,  further, that no Grace Period shall exceed thirty (30) consecutive days and during any twelve (12)  month period such Grace Periods shall not exceed an aggregate of sixty (60) days; provided,  further, the Company shall not register any securities for its own account or that of any other  existing or prospective stockholder during such Grace Period.  The provisions of Section 3.2(e)  shall not be applicable during any Grace Period.  Upon expiration of a Grace Period, the Company  shall again be bound by the provisions of Section 3.2(e) with respect to the information giving rise  thereto unless such material, non-public information is no longer applicable.    





 






   8    Section 3.3 Current Public Information.  During the Effectiveness Period, the  Company shall use commercially reasonable efforts to (i) make and keep public information  available, as those terms are defined in Rule 144, until all the Registrable Securities cease to be  Registrable Securities, and so long as a Holder owns any Registrable Securities, furnish to such  Holder upon request a written statement by the Company as to its satisfaction of the current public  information requirements of Rule 144 and (ii) file with the SEC in a timely manner all reports and  other documents required to be filed by  the Company under the Securities Act and the Exchange  Act.    Section 3.4 Obligations of the Holders.    (a) Each Holder shall furnish in writing to the Company such information  regarding such Holder, the Registrable Securities held by such Holder and the intended method of  disposition of the Registrable Securities held by such Holder as shall be reasonably required to  effect the registration of such Registrable Securities and shall execute, or shall cause to be  executed, such customary documents in connection with such registration as the Company may  reasonably request.  In connection therewith, as promptly as reasonably practicable after execution  of this Agreement (but in no event later than ten (10) Business Days prior to the first anticipated  filing date of the Registration Statement), each Holder shall complete, execute and deliver to the  Company a selling securityholder notice and questionnaire in the form attached hereto as Exhibit  B.  At least five (5) Business Days prior to the first anticipated filing date of the Registration  Statement, the Company shall notify each Holder of any additional information the Company  requires from such Holder, and such Holder shall provide such information to the Company at  least three (3) Business Days prior to the first anticipated filing date of the Registration Statement.    (b) Each Holder agrees to cooperate with the Company as reasonably requested  by the Company in connection with the preparation and filing of the Registration Statement.    (c) Upon receipt of written notice from the Company of any event of the kind  described in Section 3.2(e) or Section 3.2(f) or written notice of any Grace Period, each Holder  shall forthwith discontinue disposition of Registrable Securities until such Holder has received  copies of a supplemented or amended prospectus or until such Holder is advised in writing by the  Company that the use of the prospectus may be resumed or that the Grace Period has ended.  If so  directed by the Company, such Holder shall use its commercially reasonable efforts to return to  the Company (at the Company's expense) all copies of the prospectus covering such Registrable  Securities current at the time of receipt of such notice other than permanent file copies then in such  Holder’s possession.    (d) No Holder shall use any free writing prospectus (as defined in Rule 405) in  connection with the sale of Registrable Securities without the prior written consent of the  Company.   (e) Each Holder covenants and agrees that it will comply with the prospectus  delivery requirements of the Securities Act as applicable to it or an exemption therefrom in  connection with sales of Registrable Securities pursuant to any Registration Statement.      





 






   9    Section 3.5 Expenses of Registration. All Registration Expenses incurred in  connection with any registration, qualification or compliance hereunder shall be borne by the  Company. All Selling Expenses incurred in connection with the sale of any Registrable Securities  shall be borne by the Holders of such Registrable Securities in proportion the Registrable  Securities owned by such Holders.    Section 3.6 Transfer of Registration Rights. The rights contained in Section 3.1  hereof to cause the Company to register the Registrable Securities, and the other rights set forth in  this Article III, may be assigned or otherwise conveyed by any Holder to any transferee of the  Registrable Securities if the Transfer was permitted under Article II and the transferee agrees with  the Company in writing to be bound by this Agreement.    ARTICLE IV  INDEMNIFICATION AND CONTRIBUTION    Section 4.1 Indemnification.  In the event any Registrable Securities are included in  the Registration Statement:    (a) The Company shall indemnify and hold harmless each Holder of  Registrable Securities and such Holder’s officers, directors, employees, partners, members, agents  (including brokers), representatives and Affiliates and each person, if any, who controls such  Holder within the meaning of the Securities Act or the Exchange Act (each, a “Holder  Indemnitee”), against any losses, claims, damages, liabilities or expenses to which they may  become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as  such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based  upon any of the following statements, omissions or violations (collectively, a “Violation”): (i) an  untrue statement or alleged untrue statement of a material fact contained in the Registration  Statement, including any preliminary prospectus or final prospectus contained therein or any  amendments or supplements thereto or any documents incorporated therein by reference, (ii) an  omission or alleged omission to state therein a material fact required to be stated therein, or  necessary to make the statements therein, in light of the circumstances in which they were made,  not misleading, and (iii) a violation or alleged violation by the Company or its agents of any rule  or regulation promulgated under the Securities Act or the Exchange Act applicable to the Company  or its agents and relating to action or inaction required of the Company in connection with the  Registration Statement, and the Company will pay to each such Holder Indemnitee, as accrued,  any legal or other expenses reasonably incurred by he, she or it in connection with investigating  or defending any such loss, claim, damage, liability, action or expense; provided, however, that  the indemnification contained in this Section 4.1(a) shall not apply to amounts paid in settlement  of any such loss, claim, damage, liability, action or expense if such settlement is effected without  the consent of the Company (which consent shall not be unreasonably withheld, conditioned or  delayed), nor shall the Company be liable for any such loss, claim, damage, liability, action or  expense to the extent that it arises out of or is based upon a Violation which occurs (A) in reliance  upon and in conformity with written information furnished by a Holder to the Company, (B) in  connection with any failure of such person to deliver or cause to be delivered a prospectus made  available by the Company in a timely manner, (C) in connection with any offers or sales effected  by or on behalf of any Holder Indemnitee in violation of Section 3.4(c) of this Agreement, or (D)  





 






   10    as a result of offers or sales effected by or on behalf of any Holder Indemnitee by means of a free  writing prospectus (as defined in Rule 405) that was not authorized in writing by the Company.  Such indemnity shall remain in full force and effect regardless of any investigation made by or on  behalf of any such Holder Indemnitee, and shall survive the transfer of such securities by such  Holder, and any termination of this Agreement.    (b) Each Holder, severally and not jointly, shall indemnify and hold harmless  the Company and each of its officers, directors, employees, agents, representatives and Affiliates  and persons, if any, who control the Company within the meaning of the Securities Act or the  Exchange Act (each, a “Company Indemnitee”), against any losses, claims, damages, liabilities  or expenses to which any of the Company Indemnitees may become subject under the Securities  Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or  liabilities (or actions in respect thereof) arise out of or are based upon any (i) untrue statement or  alleged untrue statement of a material fact regarding such Holder and provided in writing by such  Holder which is contained in the Registration Statement, including any preliminary prospectus or  final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or  alleged omission to state therein a material fact required to be stated therein, or necessary to make  the statements therein, in light of the circumstances in which they were made, not misleading, in  each case to the extent (and only to the extent) that such untrue statement or alleged untrue  statement or omission or alleged omission was made in the Registration Statement, preliminary or  final prospectus, amendment or supplement thereto, in reliance upon and in conformity with  written information furnished by such Holder to the Company, (iii) a violation or alleged violation  by a Holder of any rule or regulation promulgated under the Securities Act or the Exchange Act  applicable to such Holder and relating to action or inaction required of such Holder in connection  with the registration of such Holder’s Registrable Securities or (iv) in connection with any offer  or sales effected by or on behalf of such Holder in violation of Section 3.4(c) of this Agreement,  and each Holder will pay, as accrued, any legal or other expenses reasonably incurred by any  Company Indemnitee pursuant to this Section 4.1(b), in connection with investigating or defending  any such loss, claim, damage, liability, action or expense as a result of a Holder’s untrue statement  or omission or violation; provided, however, that the indemnification contained in this Section  4.1(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability,  action or expense if such settlement is effected without the consent of such Holder (which consent  shall not be unreasonably withheld, conditioned or delayed).  Notwithstanding the foregoing, the  amount any Holder will be obligated to pay pursuant to this Section 4.1(b) and Section 4.2 will be  limited to an amount equal to the gross proceeds actually received by such Holder for the sale of  the Registrable Securities pursuant to the Registration Statement which gives rise to such  obligation to indemnify and/or contribute (net of all expenses paid by such Holder in connection  with any claim relating to this Section 4.1(b) and Section 4.2 and the aggregate amount of any  damages which such Holder has otherwise been required to pay in respect of such loss, liability,  claim, damage, or expense or any substantially similar loss, liability, claim, damage, or expense  arising from the sale of such Registrable Securities).  Such indemnity shall remain in full force and  effect regardless of any investigation made by or on behalf of any such Company Indemnitee, and  shall survive the transfer of such securities by such Holder, and any termination of this Agreement.    (c) Promptly after receipt by a party to this Agreement entitled to indemnity  hereunder (an “Indemnified Party”) under this Section 4.1 of notice of the commencement of any  





 






   11    action (including any governmental action), such Indemnified Party will, if a claim in respect  thereof is to be made against any party to this Agreement from whom indemnification may be  sought under this Section 4.1 (an “Indemnifying Party”), deliver to the Indemnifying Party a  written notice of the commencement thereof and the Indemnifying Party shall have the right to  participate in, and, to the extent the Indemnifying Party so desires, jointly with any other  Indemnifying Party similarly noticed, to assume the defense thereof with counsel reasonably  satisfactory to the Indemnifying Party; provided, however, that an Indemnified Party (together  with all other Indemnified Parties which may be represented without conflict by one counsel) shall  have the right to retain one separate counsel, with the reasonable fees and expenses of such counsel  to be paid by the Indemnifying Party, if (i) the Indemnifying Party shall have failed to assume the  defense of such claim within seven (7) days after receipt of notice of the claim and to employ  counsel reasonably satisfactory to such Indemnified Party, as the case may be; or (ii) in the  reasonable opinion of counsel retained by the Indemnified Party, representation of such  Indemnified Party by such counsel would be inappropriate due to actual or potential differing  interests (including the availability of differing legal defenses) between such Indemnified Party  and any other party represented by such counsel in such proceeding. It is understood that the  Indemnifying Party shall not, in connection with any proceeding in the same jurisdiction, be liable  for fees or expenses of more than one separate counsel at any time for all such Indemnified Parties.  The Indemnified Party shall cooperate fully with the Indemnifying Party in connection with any  negotiation or defense of any such action or claim by the Indemnifying Party and shall furnish to  the Indemnifying Party all information reasonably available to the Indemnified Party which relates  to such action or claim. The Indemnifying Party shall keep the Indemnified Party reasonably  apprised of the status of the defense or any settlement negotiations with respect thereto. No  Indemnifying Party will, except with the consent of the Indemnified Party, consent to entry of any  judgment or enter into any settlement that does not include as an unconditional term thereof the  giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect  of such action or claim. No Indemnifying Party shall be liable for any settlement of any action,  claim or proceeding effected without its prior written consent; provided, however, that the  Indemnifying Party shall not unreasonably withhold, delay or condition its consent. The failure to  deliver written notice to the Indemnifying Party within a reasonable time of the commencement of  any such action shall not relieve such Indemnifying Party of any liability to the Indemnified Party  under this Section 4.1, except to the extent such failure to give notice has a material adverse effect  on the ability of the Indemnifying Party to defend such action.    Section 4.2 Contribution.  If the indemnification provided for in Section 4.1 is  held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to  any loss, liability, claim, damage, or expense referred to therein, then the Indemnifying Party, in  lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or  payable by such Indemnified Party as a result of such loss, liability, claim, damage, or expense in  such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one  hand and of the Indemnified Party on the other in connection with the statements or omissions that  resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable  considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be  determined by reference to, among other things, whether the untrue or alleged untrue statement of  a material fact or the omission to state a material fact relates to information supplied by the  Indemnifying Party or by the Indemnified Party and the parties’ relative intent, knowledge, access  





 






   12    to information, and opportunity to correct or prevent such statement or omission. Notwithstanding  the foregoing, the amount any Holder will be obligated to severally and not jointly contribute  pursuant to this Section 4.2, together with Holder’s liability under Section 4.1(b), will be limited  to an amount equal to the gross proceeds received by a Holder for the sale of the Registrable  Securities pursuant to the Registration Statement which gives rise to such obligation to contribute  and/or indemnify (net of all expenses paid by such Holder in connection with any claim relating  to Section 4.1(b) and this Section 4.2 and the aggregate amount of any damages which such Holder  has otherwise been required to pay in respect of such loss, liability, claim, damage, or expense or  any substantially similar loss, liability, claim, damage, or expense arising from the sale of such  Registrable Securities). No person guilty of fraudulent misrepresentation (within the meaning of  Section 11(f) of the Securities Act) will be entitled to contribution hereunder from any person who  was not guilty of such fraudulent misrepresentation.    ARTICLE V  GENERAL PROVISIONS    Section 5.1 Entire Agreement.  This Agreement (including Exhibit A hereto)  constitutes the entire understanding and agreement between the parties as to the matters covered  herein and supersedes and replaces any prior understanding, agreement or statement of intent, in  each case, written or oral, of any and every nature with respect thereto.  Section 5.2 Notices.  All notices, waivers, consents and other communications to any  party hereunder shall be in writing and shall be deemed given (i) when personally delivered, (ii)  when receipt is electronically confirmed, if sent by email of a .pdf document, (iii) one (1) Business  Day after deposit with a nationally recognized overnight courier, specifying next day delivery,  with proof of receipt or (iv) three (3) Business Days after being sent by registered or certified mail,  return receipt requested and postage prepaid. The addresses, email addresses and facsimile  numbers for such notices and communications are those set forth on the signature pages hereof, or  such other address, email address or facsimile numbers as may be designated in writing hereafter,  in the same manner, by any such person.  Section 5.3 Counterparts.  This Agreement may be executed in several counterparts,  each of which shall be deemed an original copy of this Agreement and all of which, when taken  together, shall constitute one instrument.  The exchange of copies of this Agreement and manually  executed signature pages by transmission by email of a .pdf of a handwritten original signature or  signatures to the other parties hereto shall constitute effective execution and delivery of this  Agreement and may be used in lieu of the original Agreement for all purposes.  The signature of a  party hereto transmitted by electronic means shall be deemed to be an original signature for any  purpose.  Section 5.4 Amendment; Waiver.  This Agreement may be amended or modified, and  any provision hereof may be waived, in whole or in part, at any time pursuant to an agreement in  writing executed by the Company and Holders holding a majority of the Registrable Securities at  such time. Any failure by any party at any time to enforce any of the provisions of this Agreement  shall not be construed a waiver of such provision or any other provisions hereof.  





 






   13    Section 5.5 Severability.  If a court of competent jurisdiction finds that any term or  provision of this Agreement is invalid, illegal or unenforceable under any Law or public policy,  the remaining provisions of this Agreement shall remain in full force and effect if the economic  and legal substance of this Agreement and the Transactions shall not be affected in any manner  materially adverse to any party hereto.  Any such term or provision found to be illegal, invalid or  unenforceable only in part or in degree shall remain in full force and effect to the extent not invalid,  illegal or unenforceable.  Upon the determination that any term or provision is invalid, illegal or  unenforceable, the parties hereto intend that such provision shall be construed by modifying or  limiting it so as to be valid and enforceable to the maximum extent possible under applicable Law  and compatible with the consummation of the Transactions as originally intended.  Section 5.6. Governing Law; Venue.  This Agreement and all claims or causes of action  (whether sounding in contract or tort) arising under or related to this Agreement shall be governed  by, and construed in accordance with, the Laws of the State of Delaware, without regard to any  rule or principle that might refer the governance or construction of this Agreement to the Laws of  another jurisdiction. In any action or proceeding between any of the parties hereto arising under or  related to this Agreement, each of the parties hereto (i) knowingly, voluntarily, irrevocably and  unconditionally consents and submits to the exclusive jurisdiction and venue of the state or federal  courts located in the City and County of San Francisco, California, and each of the Parties hereby  irrevocably submits to the exclusive jurisdiction of the aforesaid courts, (ii) agrees that all claims  in respect of any such action or proceeding shall be heard and determined exclusively in  accordance with clause (i) of this Section 5.6, (iii) waives any objection to the laying of venue of  any such action or proceeding in such courts, including any objection that any such action or  proceeding has been brought in an inconvenient forum or that the court does not have jurisdiction  over any party hereto and (iv) agrees that service of process upon such party in any such action or  proceeding shall be effective if such process is given as a notice in accordance with Section 5.2.   The parties hereto agree that any party hereto may commence a proceeding in a court other than  the above-named courts solely for the purpose of enforcing an order or judgment issued by one of  the above-named courts.  Section 5.7 Specific Performance.  Each party acknowledges and agrees that the other  parties hereto would be irreparably harmed and would not have any adequate remedy at law in the  event that any of the provisions of this Agreement were not performed by such first party in  accordance with their specific terms or were otherwise breached by such first party.  Accordingly,  each party agrees that the other parties hereto shall be entitled to an injunction or injunctions to  prevent breaches of this Agreement and to enforce specifically the terms and provisions of this  Agreement, this being in addition to any other remedy to which such parties are entitled at law or  in equity.  (Next Page is Signature Page)    





 






   [Signature Page to Registration Rights Agreement]     IN WITNESS WHEREOF, each of the parties has executed this Agreement as of the date  first written above.    COMPANY:  INVITAE CORPORATION  By: /s/ Sean E. George, Ph.D.     Name: Sean E. George, Ph.D.  Title:   President and Chief Executive Officer    Address for Notice:    1400 16th Street  San Francisco, California 94103  Attn: General Counsel   Facsimile No.: (415) 276-4164           





 






   [Signature Page to Registration Rights Agreement]             IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the  date first written above.     HOLDER:          Name: Austin Davis-Richardson    By: /s/ Austin Davis-Richardson    Name: Austin Davis-Richardson  Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:       





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Alena Kuczynski    By: /s/ Alena Kuczynski    Name: Alena Kuczynski  Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Anastasia Potts     By: /s/ Anastasia Potts    Name: Anastasia Potts  Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Brett Camarda     By: /s/ Brett Camarda    Name: Brett Camarda   Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:       





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Brian Fish      By: /s/ Brian Fish      Name: Brian Fish   Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Bryan Jonathan Balin    By: /s/ Bryan Jonathan Balin    Name: Bryan Jonathan Balin  Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Christopher Smith      By: /s/ Christopher Smith      Name: Christopher Smith   Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Cindy Zhou Wang     By: /s/ Cindy Zhou Wang     Name: Cindy Zhou Wang  Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Data Collective III, L.P.   on behalf of itself and as nominee for   certain affiliated entities    By: Data Collective III GP, LLC    Its: General Partner        By: /s/ Zachary Bogue      Name: Zachary Bogue  Title: Managing Member       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name:  DENA CO., LTD.     By: /s/ Isao Moriyasu      Name: Isao Moriyasu  Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Denise Lynch    By: /s/ Denise Lynch    Name: Denise Lynch   Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: FUNDAMENTAL VENTURES GP I  LLC  By: /s/ Charles J. Pinto           Name: Charles J. Pinto  Title: Managing Member        Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Gerrit Gerritsen     By: /s/ Gerrit Gerritsen       Name: Gerrit Gerritsen  Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Healthy Ventures Fund I, LLC  By: Healthy Ventures I GP, LLC,   its General Partner    By: /s/ Anya Schiess       Name: Anya Schiess  Title:   Managing Director     Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Jai Ram Rideout     By: /s/ Jai Ram Rideout       Name: Jai Ram Rideout  Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Jeremy Mason-Herr    By: /s/ Jeremy Mason-Herr      Name: Jeremy Mason-Herr  Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Kim Polese     By: /s/ Kim Polese       Name: Kim Polese  Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Matthew Sweeney     By: /s/ Matthew Sweeney       Name: Matthew Sweeney  Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: MOUNT PLEASANT VENTURES,  LLC  By: /s/ Abhishek Pandey      Name: Abhishek Pandey      Title:   CEO, Mount Pleasant Ventures, LLC    Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Nathaniel Bailey     By: /s/ Nathaniel Bailey      Name: Nathaniel Bailey     Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Nicholas Greenfield    By: /s/ Nicholas Greenfield        Name: Nicholas Greenfield   Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Niklas Krumm     By: /s/ Niklas Krumm       Name: Niklas Krumm  Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Palm Drive Ventures I LP  By: Palm Drive Ventures GP LLC, its General  Partner,   By: Palm Drive Capital LLC, its manager,   Name: Hendrick Lee     By: /s/ Hendrick Lee       Name: Hendrick Lee  Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Pawel Koniecany     By: /s/ Pawel Konieczny       Name: Pawel Konieczny  Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Petras Zdanavičius    By: /s/ Petras Zdanavičius     Name: Petras Zdanavičius   Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Roderick Bovee    By: /s/ Roderick Bovee     Name: Roderick Bovee   Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Samuel Minot    By: /s/ Samuel Minot     Name: Samuel Minot   Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: TING YIN KWAN AND JANICE  POMAN CHAN, TTEES UTD 4/17/13  By: /s/ Eric Kwan       Name: Eric Kwan  Title: Trustee        Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Vincent Prouillet     By: /s/ Vincent Prouillet      Name: Vincent Prouillet  Title:       Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: Y COMBINATOR S2014, LLC    By: /s/ Kirsty Nathoo      Name: Kirsty Nathoo  Title: CFO     Address for Notice:    Telephone No.:   Facsimile No.:   Email Address:          





 






          IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of  the date first written above.     HOLDER:          Name: YCVC Fund I, L.P.   By: YCVC Fund GP, LLC    By: /s/ Kirsty Nathoo    Name:   Kirsty Nathoo   Title: Chief Financial Officer    Address for Notice:    Telephone No.:   Facsimile No.:   Email Address: