Exhibit 4.1


 


Warrant
No. W-1


 


THE SECURITIES ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAW, AND MAY NOT BE ACQUIRED
UPON EXERCISE HEREUNDER, SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS (i) A REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH
REGARD THERETO, OR (ii) AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS IS AVAILABLE IN CONNECTION WITH SUCH
OFFER, SALE OR TRANSFER.


 


COMMON STOCK PURCHASE WARRANT


 


To Purchase Shares of Common
Stock of


 


EXACT
SCIENCES CORPORATION


 


THIS COMMON STOCK PURCHASE
WARRANT (the “Warrant”) certifies that, for value received, MAYO
Foundation for Medical Education and Research (“Mayo”, and together with
any other registered holder(s) hereunder, the “Holder”), is entitled,
upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after the date hereof (the “Initial
Exercise Date”) and on or prior to the close of business on the six-year
anniversary of the Initial Exercise Date (the “Termination Date”) but
not thereafter, to subscribe for and purchase from EXACT Sciences Corporation,
a Delaware corporation (the “Company”), up to One Million (1,000,000)
shares (the “Warrant Shares”) of Common Stock, par value $0.01 per
share, of the Company (the “Common Stock”).  The purchase price of one share of Common
Stock under this Warrant shall be equal to the Exercise Price, as defined in Section
2(b).


 


Section 1.                                            License
Agreement.  This
Warrant is being issued in connection with that certain License Agreement (the “License
Agreement”), dated June 11, 2009, between the Company and Mayo, as
consideration for the licenses granted to the Company thereunder.


 


Section 2.                                            Exercise.


 


a)                                      Exercise of
Warrant.  Subject to compliance with
applicable securities laws, exercise of the purchase rights represented by this
Warrant may be made, in whole or in part, at any time or times on or after the
Initial Exercise Date and on or before the Termination Date by delivery to the
Company of a duly executed facsimile copy of the Notice of Exercise Form annexed
hereto (or such other office or agency of the Company as it may designate by
notice in writing to the registered Holder at the address of such Holder
appearing on the books of the Company); provided, however, within
five Trading Days (as defined below) of the date said Notice of Exercise is
delivered to the Company, if this Warrant is exercised in full, the Holder
shall have surrendered this Warrant to the Company and the Company shall have
received payment of the aggregate Exercise Price of the Warrant Shares thereby
purchased by wire


 

















 


transfer
or cashier’s check drawn on a United States bank.  Notwithstanding anything herein to the
contrary, the Holder shall not be required to physically surrender this Warrant
to the Company until the Holder has purchased all of the Warrant Shares
available hereunder and the Warrant has been exercised in full.  Partial exercises of this Warrant resulting
in purchases of a portion of the total number of Warrant Shares available
hereunder shall have the effect of lowering the outstanding number of Warrant
Shares purchasable hereunder in an amount equal to the applicable number of
Warrant Shares purchased.  The Holder and
the Company shall maintain records showing the number of Warrant Shares
purchased and the date of such purchases. 
The Company shall deliver any objection to any Notice of Exercise Form within
five Business Days (as defined below) of receipt of such notice.  In the event of any dispute or discrepancy,
the records of the Company shall be controlling and determinative in the
absence of manifest error.  The Holder
and any assignee, by acceptance of this Warrant, acknowledge and agree that, by
reason of the provisions of this paragraph, following the purchase of a portion
of the Warrant Shares hereunder, the number of Warrant Shares available for
purchase hereunder at any given time may be less than the amount stated on the
face hereof.  As used in this Warrant, “Trading
Day” means a day on which the Common Stock is traded on one of the
following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the Nasdaq Capital Market, the American
Stock Exchange, the New York Stock Exchange, the Nasdaq Global Market, the
Nasdaq Global Select Market or the OTC Bulletin Board (each, a “Trading
Market”).  If for any period prior to
the Termination Date the Common Stock ceases to trade on a Trading Market, the
term “Business Day”, meaning any day other than a Saturday, Sunday or
legal holiday, shall replace the term “Trading Day” in this Warrant for such
period.


 


b)                                     Exercise Price.  The per share exercise price of the Common
Stock under this Warrant shall be $1.90, subject to adjustment hereunder (the “Exercise
Price”).


 


c)                                      Cashless
Exercise.  This
Warrant may also be exercised at any time in whole or in part by means of a “cashless
exercise” in which the Holder shall be entitled to receive a certificate for
the number of Warrant Shares equal to the quotient obtained by dividing [(A-B)
(X)] by (A), where:


 


(A)                              = the VWAP on the
Trading Day immediately preceding the date of such election;


 


(B)                                = the Exercise
Price of this Warrant, as adjusted; and


 


(X)                               = the number of
Warrant Shares for which the cashless exercise is elected that are issuable
upon exercise of this Warrant in accordance with the terms of this Warrant by
means of a cash exercise rather than a cashless exercise.


 


For the purposes of this Section
2(c), “VWAP” means, for any date, the price determined by the first of
the following clauses that applies:  (i) if
the Common Stock is then listed or quoted on a Trading Market, the daily volume
weighted average price of the Common Stock for such date (or the nearest
preceding date) on the Trading Market on which the Common Stock is then listed
or quoted for trading as reported by Bloomberg L.P. (based on a Trading Day
from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time); (ii) if
the Common Stock is not then quoted for trading on a Trading Market and if
prices for the Common Stock are then


 


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reported
in the “Pink Sheets” published by Pink Sheets, LLC (or a similar organization
or agency succeeding to its functions of reporting prices), the most recent bid
price per share of the Common Stock so reported; or (iii) in all other cases,
the fair market value of a share of Common Stock as determined by an
independent appraiser selected in good faith and paid for by the Company and
reasonably acceptable to the Holder.


 


d)                                     Mechanics of Exercise.


 


i.                                          Authorization
of Warrant Shares.  The Company
covenants that all Warrant Shares which may be issued upon the exercise of the
purchase rights represented by this Warrant will, upon exercise of the purchase
rights represented by this Warrant, be duly authorized, validly issued, fully
paid and nonassessable and free from all taxes, liens and charges in respect of
the issue thereof (other than taxes in respect of any transfer occurring
contemporaneously with such issue).


 


ii.                                       Delivery of
Certificates Upon Exercise.  Certificates for shares purchased hereunder
shall be transmitted by the transfer agent of the Company to the Holder by
crediting the account of the Holder’s prime broker with the Depository Trust
Company through its Deposit Withdrawal Agent Commission (“DWAC”) system
if the Company is a participant in such system, and otherwise by physical
delivery to the address specified by the Holder in the Notice of Exercise
within three Trading Days from the delivery to the Company of the Notice of
Exercise Form, surrender of this Warrant (if required) and payment of the
aggregate Exercise Price as set forth above (“Warrant Share Delivery Date”).  This Warrant shall be deemed to have been
exercised on the date the Exercise Price is received by the Company.  The Warrant Shares shall be deemed to have
been issued, and Holder or any other person so designated to be named therein
shall be deemed to have become a holder of record of such shares for all
purposes, as of the date the Warrant has been exercised by payment to the
Company of the Exercise Price.


 


iii.                                    Restrictive
Legend. The Holder understands that unless the Warrant Shares may be sold
pursuant to Rule 144 under the Securities Act or another exemption from
registration under the Securities Act without any restriction as to the number
of securities as of a particular date that can then be immediately sold, the
Warrant Shares may bear a restrictive legend in substantially the form included
on this Warrant (and a stop-transfer order may be placed against transfer of
the certificates for such securities).


 


iv.                                   Delivery of New
Warrants Upon Exercise.  If
this Warrant shall have been exercised in part, the Company shall, at the
request of a Holder and upon surrender of this Warrant certificate, at the time
of delivery of the certificate or certificates representing Warrant Shares,
deliver to Holder a new Warrant evidencing the rights of Holder to purchase the
unpurchased Warrant Shares called for by this Warrant, which new Warrant shall
in all other respects be identical with this Warrant.


 


v.                                      No Fractional
Shares or Scrip.  No
fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant.  As to any
fraction of a share which Holder would otherwise be entitled to purchase upon
such exercise, the


 


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Company shall pay a cash
adjustment in respect of such final fraction in an amount equal to such
fraction multiplied by the Exercise Price.


 


Section
3.                                            Certain
Adjustments.


 


a)                                      Stock Dividends
and Splits.  If the
Company, at any time while this Warrant is outstanding:  (A) pays a stock dividend or otherwise make a
distribution or distributions on shares of its Common Stock or any other equity
or equity equivalent securities payable in shares of Common Stock (which, for
avoidance of doubt, shall not include any shares of Common Stock issued by the
Company pursuant to this Warrant or the other Warrants), (B) subdivides
outstanding shares of Common Stock into a larger number of shares, (C) combines
(including by way of reverse stock split) outstanding shares of Common Stock
into a smaller number of shares, or (D) issues by reclassification of shares of
the Common Stock any shares of capital stock of the Company, then in each case
the Exercise Price shall be multiplied by a fraction of which the numerator
shall be the number of shares of Common Stock (excluding treasury shares, if
any) outstanding immediately before such event and of which the denominator
shall be the number of shares of Common Stock outstanding immediately after
such event and the number of shares issuable upon exercise of this Warrant
shall be proportionately adjusted.  Any
adjustment made pursuant to this Section 3(a) shall become effective
immediately after the record date for the determination of stockholders
entitled to receive such dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision, combination
or re-classification.


 


b)                                     Sale of Assets
and Mergers.  Upon the
sale by the Company of all or substantially all of its assets, or the merger or
consolidation of the Company with or into another entity in a transaction where
the shares of Common Stock outstanding immediately prior to the closing of such
merger or consolidation represent or are converted into or exchanged for shares
that represent less than a majority of the shares of capital stock of the
resulting or surviving entity outstanding immediately after the closing of such
merger or consolidation (each, a “Business Event”), this Warrant shall
be deemed exercised pursuant to a cashless exercise, with VWAP meaning the fair
market value of a share of Common Stock based on such Business Event.


 


c)                                      Calculations.  All calculations under this Section 3 shall
be made to the nearest cent or the nearest 1/100th of a share, as the case may
be.  For purposes of this Section 3, the
number of shares of Common Stock deemed to be issued and outstanding as of a
given date shall be the sum of the number of shares of Common Stock (excluding
treasury shares, if any) issued and outstanding.


 


Section
4.                                            Transfer of
Warrant.


 


a)                                      Transferability.  Subject to the Securities Act and any other
restrictions set forth herein, this Warrant and all rights hereunder are
transferable (but only with all related obligations) with the prior written
consent of the Company and upon surrender of the Warrant with a properly
executed assignment, reasonably satisfactory to the Company, at the principal
office of the Company or such other office or agency as the Company may
designate.  Each Holder (i) acknowledges
that this Warrant and the Warrant Shares have not been registered under the
Securities Act, and (ii) agrees not to sell, pledge, distribute, offer for
sale, transfer or


 


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otherwise dispose of this
Warrant or any Warrant Shares in the absence of (A) an effective registration
statement under the Securities Act as to this Warrant or the Warrant Shares and
registration or qualification of this Warrant or the Warrant Shares under any
applicable blue sky or state securities law then in effect, or (B) an opinion
of counsel, reasonably satisfactory to the Company, that such registration and
qualification are not required.


 


b)                                     New Warrants.  This Warrant may be divided or combined with
other Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which
new Warrants are to be issued, signed by the Holder or its agent or attorney.  Subject to compliance with Section 4(a), as
to any transfer which may be involved in such division or combination, the
Company shall execute and deliver a new Warrant or Warrants in exchange for the
Warrant or Warrants to be divided or combined in accordance with such notice.


 


c)                                      Warrant
Register.  The Company
shall register this Warrant, upon records to be maintained by the Company for
that purpose (the “Warrant Register”), in the name of the record Holder
hereof from time to time.  The Company
may deem and treat the registered Holder of this Warrant as the absolute owner
hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the contrary.


 


Section
5.                                            Notice of
Certain Events.  In case at any time or
from time to time:


 


a)                                      the Company shall take a
record of the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend or other
distribution, or any right to subscribe for, purchase or otherwise acquire any
shares of stock of any class or any other securities or property, or to receive
any other right;


 


b)                                     the Company shall declare a
dividend (or any other distribution) on the shares of Common Stock or other
equity interests, if any, of the Company;


 


c)                                      the Company shall authorize
the granting to the holders of the shares of Common Stock or other equity
interests, if any, of the Company of rights or warrants to subscribe for or
purchase any equity interests of any class or of any other rights or warrants;


 


d)                                     there shall be any
reclassification of the shares of Common Stock or other equity interests, if
any, of the Company, or any consolidation or merger to which the Company is a
party and for which approval of any holders of shares of Common Stock of the
Company is required, or any sale or other disposition of all or substantially
all of the assets of the Company; or


 


e)                                      of the voluntary or
involuntary dissolution, liquidation or winding up of the Company;


 


then the Company shall mail to Holder at the
last address of the Holder appearing on the books of the Company, as promptly
as possible but in any event at least twenty days prior to the applicable date
hereinafter specified, a notice stating (i) the date on which a record is to be
taken for the purpose of such dividend, distribution or rights or warrants or,
if a record is not to be taken, the date as of which the holders of shares of
Common Stock of


 


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record to be entitled to such dividend,
distribution or rights are to be determined, (ii) the date of the distribution,
together with a description of the property to be distributed, (iii) the date
of such issuance, together with a description of the security so issued and the
consideration received by the Company therefor, and (iv) the date on which such
reclassification, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding up is expected to become effective, the time, if any
such time is to be fixed, as of which the holders of record of Common Stock (or
other securities) shall be entitled to exchange their shares of Common Stock
(or other securities) for the securities or other property deliverable upon
such reclassification, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding up, and a description in reasonable detail of the
transaction.  Such notice shall be mailed
at least twenty days prior to the date or expected date therein specified.


 


Section
6.                                            Miscellaneous.


 


a)                                      No Rights as
Stockholder Until Exercise.  This Warrant does not entitle the Holder to
any voting rights or other rights as a stockholder of the Company prior to the
exercise hereof.  Upon the surrender of
this Warrant and the payment of the aggregate Exercise Price (or by means of a
cashless exercise), the Warrant Shares so purchased shall be and be deemed to
be issued to such Holder as the record owner of such shares as of the close of
business on the later of the date of such surrender or payment.


 


b)                                     Loss, Theft,
Destruction or Mutilation of Warrant.  The Company covenants that upon receipt by
the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant or any stock certificate relating to
the Warrant Shares, and in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation
of such Warrant or stock certificate, if mutilated, the Company will make and
deliver a new Warrant or stock certificate of like tenor and dated as of such
cancellation, in lieu of such Warrant or stock certificate.


 


c)                                      Business Days. If the last
or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then such action may be
taken or such right may be exercised on the next succeeding Business Day.


 


d)                                     Authorized
Shares.


 


The Company covenants that
during the period the Warrant is outstanding, it will reserve from its
authorized and unissued Common Stock a sufficient number of shares to provide
for the issuance of the Warrant Shares upon the exercise of any purchase rights
under this Warrant.  The Company further
covenants that its issuance of this Warrant shall constitute full authority to
its officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for the Warrant Shares upon the
exercise of the purchase rights under this Warrant.  The Company will take all such reasonable
action as may be necessary to assure that such Warrant Shares may be issued as
provided herein without violation of any applicable law or regulation.


 


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Except and to the extent as
waived or consented to by the Holder, the Company shall not by any action,
including, without limitation, amending its certificate of incorporation or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as may be necessary or
appropriate to protect the rights of Holder as set forth in this Warrant
against impairment.  Without limiting the
generality of the foregoing, the Company will (a) not increase the par value of
any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (b) take all such action as
may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares upon the exercise of
this Warrant, and (c) use commercially reasonable efforts to obtain all such
authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the Company to perform its
obligations under this Warrant.


 


Before taking any action
which would result in an adjustment in the number of Warrant Shares for which
this Warrant is exercisable or in the Exercise Price, the Company shall obtain
all such authorizations or exemptions thereof, or consents thereto, as may be
necessary from any public regulatory body or bodies having jurisdiction
thereof.


 


e)                                      Governing Law.  This Warrant shall be governed by and
construed in accordance with Delaware law without regard for its conflicts of
law principals.


 


f)                                        Nonwaiver and
Expenses.  No course
of dealing or any delay or failure to exercise any right hereunder on the part
of Holder shall operate as a waiver of such right or otherwise prejudice Holder’s
rights, powers or remedies, notwithstanding the fact that all rights hereunder
terminate on the Termination Date.  If
the Company willfully and knowingly fails to comply with any provision of this
Warrant, which results in any material damages to the Holder, the Company shall
pay to Holder such amounts as shall be sufficient to cover any costs and
expenses including, but not limited to, reasonable attorneys’ fees, including
those of appellate proceedings, incurred by Holder in collecting any amounts
due pursuant hereto or in otherwise enforcing any of its rights, powers or
remedies hereunder.


 


g)                                     Notices.  Any notice, request or other document
required or permitted to be given or delivered to the Holder by the Company
shall be delivered in accordance with the notice provisions of the License
Agreement.


 


h)                                     Successors and
Assigns.  Subject to applicable
securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors of the Company
and the successors and permitted assigns of Holder.  The provisions of this Warrant are intended
to be for the benefit of all Holders from time to time of this Warrant and
shall be enforceable by any such Holder or holder of Warrant Shares.


 


i)                                         Amendment.  This Warrant may be modified or amended or
the provisions hereof waived with the written consent of the Company and the
Holder.


 


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j)                                         Severability.  Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this Warrant.


 


k)                                      Headings.  The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.


 


********************


 


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IN WITNESS WHEREOF, the
Company has caused this Warrant to be executed by its officer thereunto duly
authorized.


 


Dated:  June 11, 2009


 


	
   

  	
  EXACT SCIENCES CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kevin T. Conroy

  
	
   

  	
   

  	
  Name:

  	
  Kevin
  T. Conroy

  
	
   

  	
   

  	
  Title:

  	
  CEO
  and President

  



 


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NOTICE OF EXERCISE


 


TO:                            EXACT Sciences
Corporation


 


(1)                                  The undersigned
hereby elects to purchase
            
Warrant Shares of the Company pursuant to the terms of the attached Warrant,
and tenders herewith payment of the exercise price, together with all
applicable transfer taxes, if any, in accordance with paragraph (2) below.


 


(2)                                  Payment shall
take the form of (check applicable box):


 


o            $                                    
in lawful money of the United States; or


 


o            the cancellation of such number of Warrant Shares as
is necessary, in accordance with the formula set forth in subsection 2(c), to
exercise this Warrant with respect to the number of Warrant Shares purchasable
pursuant to the cashless exercise procedure set forth in subsection 2(c).


 


(3)                                  Please issue a
certificate or certificates representing said Warrant Shares in the name of the
undersigned or in such other name as is specified below:


 


 


The Warrant Shares shall be
delivered to the following: