Exhibit 10.4
EXECUTION VERSION
COMMON STOCK SUBSCRIPTION AGREEMENT
THIS COMMON STOCK SUBSCRIPTION AGREEMENT (the "Agreement") is made as of
January 27, 2009 by and between EXACT Sciences Corporation, a Delaware
corporation (the "Company"), and Genzyme Corporation, a Massachusetts
corporation (the "Investor").
WITNESSETH:
WHEREAS, the Company and the Investor are contemporaneously entering into a
Collaboration, License and Purchase Agreement (the "CLP Agreement"), dated as of
the date hereof;
WHEREAS, the Company desires to issue and sell to the Investor and the Investor
desires to purchase from the Company 3,000,000 shares (the "Purchased Shares")
of Common Stock, par value $0.01 per share, of the Company (the "Common Stock")
at a price per share of $2.00 (the "Purchase Price") for a total purchase price
of $6,000,000 (the "Total Purchase Price"), pursuant to the terms of this
Agreement; and
WHEREAS, the parties hereto desire to enter into this Agreement for the purpose
of setting forth certain representations, warranties and covenants made by each
to the other as an inducement to the execution and delivery of this Agreement
and the conditions precedent to the consummation of the transactions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual provisions,
agreements and covenants contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE PURCHASED SHARES
1.1
Authorization and Sale of the Purchased Shares.
Subject to the
terms and conditions set forth in this Agreement, the Company has authorized the
issuance and sale of up to 3,000,000 shares of Common Stock.
1.2
Agreement to Sell and Purchase the Purchased Shares.
Subject to
the terms and conditions of this Agreement, the Investor agrees to purchase at
the Closing (as such term is defined in Section 1.3), the Purchased Shares for
the Total Purchase Price.
1.3
Delivery of the Purchased Shares at Closing.
(A)
THE COMPLETION OF THE PURCHASE AND SALE OF THE PURCHASED SHARES
(THE "CLOSING") SHALL OCCUR ON THE DATE ON WHICH THE LAST OF THE CONDITIONS
REQUIRED TO BE SATISFIED OR WAIVED PURSUANT TO SECTIONS 1.3(B) AND 1.3(C) IS
EITHER SATISFIED OR WAIVED (OTHER THAN CONDITIONS WHICH BY THEIR NATURE ARE TO
BE SATISFIED OR WAIVED AT THE CLOSING AND ARE EXPECTED TO BE SATISFIED AT THE
CLOSING) (THE "CLOSING DATE"), AT THE OFFICES OF ROPES & GRAY LLP, ONE
INTERNATIONAL PLACE, BOSTON, MASSACHUSETTS 02110 AT 10:00 AM EASTERN TIME, OR AT
SUCH OTHER TIME AND PLACE
as may be mutually agreed upon by the Company and the Investor.
At the Closing,
the Company shall either:
(I)
DELIVER TO THE INVESTOR A STOCK CERTIFICATE REPRESENTING THE
PURCHASED SHARES REGISTERED IN THE NAME OF THE INVESTOR OR, IF SO INDICATED ON
THE SIGNATURE PAGE HERETO, IN THE NAME OF A NOMINEE DESIGNATED BY THE INVESTOR;
OR
(II)
DIRECT ITS TRANSFER AGENT TO DELIVER SUCH CERTIFICATE TO THE
INVESTOR (AT THE ADDRESS OF THE INVESTOR SET FORTH ON THE SIGNATURE