EFTA01143305.pdf

AMENDMENT NO. 1 TO THE SERIES B PREFERRED STOCK PURCHASE AGREEMENT THIS AMENDMENT NO. 1 TO THE SERIES B CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT (this "Amendment") is made as of December 28, 2012, by and among Foundation Medicine, Inc., a Delaware corporation (the "Company"), the Initial Purchasers (as defined herein) and the Additional Purchasers (as defined herein). Capitalized terms used and not defined herein have the meanings ascribed to such terms in the Purchase Agreement (as defined herein). WHEREAS, the Company and the Initial Purchasers are parties to that certain Series B Convertible Preferred Stock Purchase Agreement, dated as of September 10, 2012, by and among the Company and the Investors (as named therein, the "Initial Purchasers") (the "Purchase Agreement"); WHEREAS, the Company and Initial Purchasers desire to amend the Purchase Agreement to provide for the sale and issuance of 5,956,830 additional shares of the Company's Series B Convertible Preferred Stock, par value $0.0001 per share (the "Series B Preferred Stock"), to the Additional Purchasers; WHEREAS, the Company will, prior to the sale and issuance of the additional shares, adopt and file an amendment to its Fifth Amended and Restated Certificate of Incorporation (the "Charter Amendment"), authorizing the designation of the additional Shares to be sold in the Second Closing (as defined below); WHEREAS, pursuant to Section 7.1 of the Purchase Agreement, the Purchase Agreement may be amended with the written consent of the Company and the Initial Purchasers holding at least a majority of the Shares of Common Stock issuable or issued upon conversion of the Shares issued pursuant to the Purchase Agreement; and WHEREAS, the undersigned Initial Purchasers are holders of at least a majority of the shares of Common Stock issuable or issued upon conversion of the Shares issued pursuant to the Purchase Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby confirmed, the parties agree that the Purchase Agreement is amended as follows: I. The following shall be added as the new Section 1.3 to the Purchase Agreement: 1.3 Sale of Additional Shares of Preferred Stock. The Company may sell at a closing to be held on the date of this Amendment, remotely via the exchange of documents and signatures, or at such other time and place as the Company and the majority of the Additional Purchasers (based on the number of Additional Shares being purchased) mutually agree upon orally or in writing (the "Second Closing"), up to 5,956,830 additional shares (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or similar recapitalization affecting such shares) of Series B Preferred Stock (the "Additional Shares"), to one or more purchasers (the EFTA01143305  AMENDMENT NO. 1 TO THE SERIES B PREFERRED STOCK PURCHASE AGREEMENT "Additional Purchasers") for aggregate consideration of up to $13,462,435.80, on the terms and conditions specified herein. Each Additional Purchaser that is not already a party to the Purchase Agreement agrees to, and hereby does, join the Purchase Agreement as an Investor and, subject to the terms and conditions of this Agreement, each Additional Purchaser, severally and not jointly, agrees to purchase at the Second Closing and the Company agrees to sell and issue to each Additional Purchaser at the Second Closing that number of Shares set forth opposite each Additional Purchaser's name under the heading Second Closing in the column designated "Shares of Series B Preferred Stock" on Schedule A attached hereto, at a purchase price of $2.26 per share. The Additional Purchasers shall be deemed "Investors," the Second Closing shall be deemed a "Closing," and the Additional Shares shall be deemed "Shares," for purposes of this Agreement; provided, however that, with respect to Sections 1.1 1.2 2.1, 2.2, 3, 5, 6 7.1 and 7.4, "Closing" shall refer to the closing that occurred on September 10, 2012 (the "Initial Closing"). At the Second Closing, the Company shall deliver to each of the Additional Purchasers a certificate representing the number of Additional Shares being purchased by each such Additional Purchaser at the Second Closing against payment of the purchase price therefor by check payable to the Company, by wire transfer to a bank account designated by the Company, or by any combination of such methods. 2. The following shall be added as the new Section 5A to the Purchase Agreement: SECTION 5A CONDITIONS TO ADDITIONAL PURCHASERS' OBLIGATIONS TO CLOSE Each Additional Purchaser's obligation to purchase the Additional Shares at the Second Closing is subject to the fulfillment on or before the Second Closing of each of the following conditions, unless waived in writing by the Additional Purchaser purchasing the Additional Shares: (a) Initial Closing Representations and Warranties. The representations and warranties made by the Company in Section 3 (as modified by the disclosures on the Schedule of Exceptions, including the updates to the Schedule of Exceptions set forth on Annex A hereto) shall be true and correct as of the Second Closing as if made as of the Second Closing, except that: (0 The following representations and warranties made by the Company in Section 3 (as modified by the disclosures on the Schedule of Exceptions) shall only be true and correct as of the Initial Closing: a. Section 3.12(a); b. Section 3.12(c)- c. The second sentence in Section 3.24. 2 EFTA01143306  AMENDMENT NO. 1 TO THE SERIES B PREFERRED STOCK PURCHASE AGREEMENT (ii) The following representations and warranties made by the Company in Section 3 (as modified by the disclosures on the Schedule of Exceptions) shall be true and correct (a) as of the Initial Closing and (b) except for changes since the Initial Closing related to (1) the shares of Series B Preferred Stock issued at the Initial Closing, (2) shares of Common Stock issued or issuable under the Plan or (3) shares of Series A Preferred Stock transferred by a director of the Company to trusts for estate planning purposes, as of the Second Closing as if made as of the Second Closing: a. Section 3.3(e) and b. The last sentence of Section 3.24; (iii) The following representations and warranties made by the Company in Section 3 (as modified by the disclosures on the Schedule of Exceptions) shall be true and correct (a) as of the Initial Closing and (b) to the actual knowledge, without investigation or inquiry, of Michael J. Pellini, Kevin Krenitsky, Robert Hesslein and Jason Ryan, as of the Second Closing as if made as of the Second Closing: a. Section 3.6(0. b. The second independent clause of the last sentence of Section 3.I2(b) beginning "and, to the Company's knowledge, no other person or entity is infringing..."; c. The second sentence of Section 3.12(d); d. Section 3.I2(h)• e. Section 3.25• f. Section 3.26; and g. The clause of Section 3.29 referring to "or person nominated to become an officer; (iv) The following representations and warranties made by the Company in Section 3 (as modified by the disclosures on the Schedule of Exceptions) shall be true and correct (a) as of the Initial Closing and (b) as of the Second Closing as if made as of the Second Closing subject to the following for purposes of the Second Closing only: a. The phrase in Section 3.6(b) "Except as noted on Section 3.6(b) of the Schedule of Exceptions," shall be replaced with EFTA01143307 AMENDMENT NO. 1 TO THE SERIES B PREFERRED STOCK PURCHASE AGREEMENT the phrase "Except as noted on Section 3.6(b) of the Schedule of Exceptions or any agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees entered into in the ordinary course of business since the Initial Closing,"; b. The phrase in the first sentence of Section 3.12(b) "Except (i) as set forth in Section 3.12(b) of the Schedule of Exceptions and" shall be replaced with the phrase "Except (i) as set forth in Section 3.12(b) of the Schedule of Exceptions and pursuant to license or similar agreements entered into in the ordinary course of business since the Initial Closing and"; c. The phrase in the last sentence of Section 3.12(b) "(except pursuant to agreements or licenses specified in Section 3.I2(b) of the Schedule of Exceptions)" shall be replaced with the phrase "(except pursuant to agreements or licenses specified in Section 3.12(b) of the Schedule of Exceptions and pursuant to agreements or licenses entered into in the ordinary course of business since the Initial Closing)"; d. The phrase in the first sentence of Section 3.12(e) "Section 3.12(e) of the Schedule of Exceptions identifies" shall be replaced with the phrase "Except for licenses or other agreements entered into in the ordinary course of business since the Initial Closing, Section 3.12(e) of the Schedule of Exceptions identifies"; e. The phrase in the second sentence of Section 3.12(e) "Except as described in the license agreements set forth in Section 3.12(e) of the Schedule of Exceptions," shall be replaced with the phrase "Except as described in the license agreements set forth in Section 3.12(e) of the Schedule of Exceptions or in license agreements entered into in the ordinary course of business since the Initial Closing,"; f. The phrase in Section 3.12(f) "To the Company's knowledge, Section 3.12(f) of the Schedule of Exceptions identifies" shall be replaced with the phrase "Except for licenses or other agreements entered into in the ordinary course of business since the Initial Closing, to the Company's knowledge, Section 3.12(f) of the Schedule of Exceptions identifies"; The phrase in the first sentence of Section 3.14(a) "any employee of the Company" shall be replaced with the phrase "any officer of the Company holding the title of vice president or higher"; EFTA01143308  AMENDMENT NO. 1 TO THE SERIES B PREFERRED STOCK PURCHASE AGREEMENT h. The first instance of the phrase "officer or key employee" in the first sentence of Section 3.14(c) shall be replaced with the phrase "officer of the Company holding the title of vice president or higher"; i. The phrase in the third sentence of Section 3.14(c1 "employment of any such employees" shall be replaced with the phrase "employment of any officer of the Company holding the title of vice president or higher"; J. The phrase in the second sentence of Section 3.19 "Restated Certificate" shall be replaced with the phrase "Restated Certificate and Charter Amendment"; and k. The phrase in the second sentence of Section 3.33 "For the avoidance of doubt," shall be replaced with the phrase "For the avoidance of doubt and except for the modifications proposed in this Amendment as compared to the Purchase Agreement and the letter agreement between Gates Ventures, LLC and the Company, attached to this Amendment as Annex B,". (b) Additional Second Closing Representations and Warranties. The Company hereby represents and warrants to the Initial Purchasers and the Additional Purchasers as of the date hereof and as of the date of the Second Closing, if later, that (i) all corporate action on the part of the Company and its directors, officers and stockholders necessary for the authorization, execution and delivery of this Amendment and the Charter Amendment by the Company, the authorization, sale, issuance and delivery of the Additional Shares, and the performance of all of the Company's obligations under this Amendment and the Transaction Documents has been taken or will be taken prior to the Second Closing, and (ii) this Amendment, when executed and delivered by the Company, and the Transaction Documents shall constitute valid and binding obligations of the Company, enforceable in accordance with their terms, except (A) to the extent that the indemnification provisions contained in the Investors' Rights Agreement may be limited by applicable laws and principles of public policy; (B) as limited by bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors' rights generally; and (C) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies or by general principles of equity. (c) Covenants. All covenants, agreements and conditions contained in this Amendment to be performed by the Company on or prior to the Second Closing shall have been performed or complied with. (d) Qualifications. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Additional Shares pursuant to this Amendment shall be obtained and effective as of the Second Closing. 5 EFTA01143309  AMENDMENT NO. 1 TO THE SERIES B PREFERRED STOCK PURCHASE AGREEMENT (e) Legal Investment. On the date of the Second Closing, the sale and issuance of the Shares shall be legally permitted by all laws and regulations to which Investors and the Company are subject. (f) Certificate of Incorporation. The Charter Amendment shall have been duly authorized, executed and filed with and accepted by the Secretary of State of the State of Delaware. (g) Stockholders' Voting Agreement. An Adoption Agreement to the Stockholders' Voting Agreement in substantially the form attached to the Stockholders' Voting Agreement in Exhibit A shall have been executed and delivered by the Company and each Additional Purchaser that is not already a party thereto. (h) Investors' Rights Agreement. An Adoption Agreement to the Investors' Rights Agreement in substantially the form attached to the Investors' Rights Agreement as Exhibit A shall have been executed and delivered by the Company and each Additional Purchaser that is not already a party thereto. (i) Right of First Refusal and Co-Sale Agreement. An Adoption Agreement to the Right of First Refusal and Co-Sale Agreement in substantially the form attached to the Right of First Refusal and Co-Sale Agreement as Exhibit A shall have been executed and delivered by the Company and each Additional Purchaser that is not already a party thereto. (j) Compliance Certificate. At the Second Closing, the Company shall have delivered to the Additional Purchasers a certificate executed by the Chief Executive Officer of the Company on behalf of the Company, certifying the satisfaction of the conditions to such Second Closing listed in Section 5A. (k) Legal Opinion. The Company shall have delivered to the Additional Purchasers an opinion from Goodwin Procter LLP, counsel to the Company, dated as of the Second Closing, in substantially the form attached to this Amendment as Annex C. (I) Secretary's Certificate. At the Second Closing, the Secretary of the Company shall deliver to the Additional Purchasers a certificate certifying as to: (i) the Charter Amendment and the Restated Certificate, (ii) the Bylaws of the Company, (iii) resolutions of the Board of Directors approving the Charter Amendment and this Amendment and the transactions contemplated hereby and thereby, (iv) resolutions of the stockholders of Company approving the Charter Amendment, and (v) incumbency of the officers signing this Amendment and the other agreements, instruments and certificates delivered hereby. (m) Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated at the Second Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to the Additional Purchasers, and the Additional Purchasers (or their counsel) shall have received all such counterpart original and certified or other copies of such documents as reasonably requested. 6 EFTA01143310  AMENDMENT NO. 1 TO THE SERIES B PREFERRED STOCK PURCHASE AGREEMENT (n) Non-Disclosure Agreements. Each employee of the Company shall have executed a customary and reasonable non-disclosure, invention assignment, non- competition and non-solicitation agreement. Each independent contractor and consultant that provides service to the Company shall have executed a customary and reasonable consulting agreement. (o) Good Standing Certificates. The Company shall have delivered to the Additional Purchasers certificates of good standing with respect to the Company issued by the State of Delaware and the Commonwealth of Massachusetts. (p) No Material Adverse Effect. Except as set forth on Annex A to this Amendment, no facts, events or circumstances shall have occurred since the date of the Initial Closing that would result in, or, with the passage of time, would reasonably be expected to result in, the occurrence of a Material Adverse Effect. 3. The following shall be added as the new Section 6A to the Purchase Agreement: SECTION 6A CONDITIONS TO COMPANY'S OBLIGATION TO SECOND CLOSING The Company's obligation to sell and issue the Additional Shares at the Second Closing is subject to the fulfillment on or before such Second Closing of each of the following conditions, unless waived by the Company: 6.1 Representations and Warranties. Each Additional Purchaser hereby, severally and not jointly, represents and warrants to the Company, as of the date hereof and as of the date of the Second Closing, if later, that the representations and warranties in Section 4 are true and correct in respect of each such Additional Purchaser as an "Investor". 6.2 Covenants. All covenants, agreements and conditions contained in the Agreements to be performed by each Additional Purchaser on or prior to the date of the Second Closing shall have been performed or complied with in all material respects as of the date of the Second Closing. 6.3 Compliance with Securities Laws. The Company shall be satisfied that the offer and sale of the Additional Shares shall be qualified or exempt from registration or qualification under all applicable federal and state securities laws (including receipt by the Company of all necessary blue sky law permits and qualifications required by any state, if any). 6.4 Stockholders' Voting Agreement. An Adoption Agreement to the Stockholders' Voting Agreement in substantially the form attached to the Stockholders' Voting Agreement in Exhibit A shall have been executed and delivered by the Company and each Additional Purchaser that is not already a party thereto. 7 EFTA01143311  AMENDMENT NO. 1 TO THE SERIES B PREFERRED STOCK PURCHASE AGREEMENT 6.5 Investors' Rights Agreement. An Adoption Agreement to the Investors' Rights Agreement in substantially the form attached to the Investors' Rights Agreement as Exhibit A shall have been executed and delivered by the Company and each Additional Purchaser that is not already a party thereto. 6.6 Right of First Refusal and Co-Sale Agreement. An Adoption Agreement to the Right of First Refusal and Co-Sale Agreement in substantially the form attached to the Right of First Refusal and Co-Sale Agreement as Exhibit A shall have been executed and delivered by the Company and each Additional Purchaser that is not already a party thereto. 4. The following shall be added as the new Section 7.17(d) of the Purchase Agreement: "None of the parties to this Agreement (except Gates Ventures, LLC) shall use Gates Ventures, LLC's name ("Gates") (or the name of any affiliate of Gates, including The Bill & Melinda Gates Foundation Trust) in any press release, published notice or other publication relating to Gates's investment in the Company without the prior written consent of Gates. For the avoidance of doubt, the Company may, subject to a confidentiality agreement, advise other investors and prospective investors of the fact of Gates's investment in the Company required by law or legal process, provided that the Company provides Gates reasonable advance notice of such disclosure. This Section 7.17(d) shall not be amended without the consent of Gates." 5. Schedule A to the Purchase Agreement is hereby deleted and replaced with Schedule A attached to this Amendment, which shall be the new "Schedule A" of the Purchase Agreement. 6. This Amendment may be executed in any number of counterparts, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. 7. A facsimile, telecopy or other reproduction of this Amendment may be executed by one or more parties hereto and delivered by such party by facsimile or any similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen. Such execution and delivery shall be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute and deliver an original of this Amendment as well as any facsimile, telecopy or other reproduction hereof. 8. This Amendment shall be governed by and construed in accordance with the General Corporation Law of the State of Delaware as to matters within the scope thereof, and as to all other matters shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts, without regard to its principles of conflicts of laws. 8 EFTA01143312  AMENDMENT NO. 1 TO THE SERIES B PREFERRED STOCK PURCHASE AGREEMENT 9. Except as herein provided, all of the terms, covenants and conditions of the Purchase Agreement shall remain in full force and effect. [Signature Page Follows] 9 EFTA01143313  IN WITNESS WHEREOF, the undersigned have executed this Amendment No. I to the Series B Convertible Preferred Stock Purchase Agreement as of the date first written above. COMPANY: FOUNDATION MEDICINE, INC. • By: Name: Michael Pellini, M.D. Title: President and Chief Executive Officer •••Signature Page - Amendment No. Ito Preferred Stock Purchase Agreement••• EFTA01143314  INVESTORS: THIRD ROCK VENTURES, L.P. By: Third Rock Ventures G X.P., its general .a By: T f eral partner By: Name: Title: *"Signature Page — Amendment No. I to Preferred Stock Purchase Agreement"-' EFTA01143315  INVESTORS: KPCB HOLDINGS, INC., AS NOMINEE By: )6“4:Aef.14-- Name: ..5/.1tia /et/ Title: eic C -/ •••Signature Page - Amendment No. Ito Preferred Stock Purchase Agreement's' EFTA01143316 DocuSign Envelope ID: 1F9DOIFA-A0EA-4A3B-603C-35 I A5892BE6C INVESTORS: GOGGLE VENTURES 2011, L.P. By: Google Ventures 2011 GP, L.L.C., its General Partner f — DocullIgned by: %That 3. Mans By tott14 / 4Thle0 Name: William J. Maris Title: Member ***Signature Page — Amendment No. I to Preferred Stock Purchase Agreement*** EFTA01143317  INVESTORS: CASDIN PARTNERS MASTER FUND, LP By: Casdin Partners GP, LLC, its general partner By: Name: Eli in Title: Managing Member •••Signature Page — Amendment No. I to Preferred Stock Purchase Agreement'•• EFTA01143318  INVESTORS: APOLETTO LIMITED By: Name: Strery floe, Title: Ines cat it •**Signature Page — Amendment No. 1 to Preferred Stock Purchase Agreement*** EFTA01143319  INVESTORS: GATES VENTURES, LLC By: AL/ Name: &AM trAGnice.. VA Title: Avntoft.t7c6 Tarw'cC gT4ortee" "'Signature Page — Amendment No. 1 to Preferred Stock Purchase Agreement*" EFTA01143320  INVESTORS: jVEN CAPITAL, LLC By: Name: EVE - SOAeS Title: Ai OW tiCr-Tri Cr Mesi i'307.— •••Signature Page - Amendment No. Ito Preferred Stock Purchase Agreement••• EFTA01143321  INVESTORS: HAWKF-S BAY MASTER INVESTORS (CAYMAN) LP By: Wellington Management Company. LLP. as investment advisor By: aG. ofi l lrfr — Name: Title: Steven M. Hoffman Vice President and Counsel "'Signature Page- Amendment No. Ito Preferred Stock Turnhout Agretmein••" EFTA01143322  INVESTORS: QUISSE1T INVESTORS (BERMUDA) L.P. By: Wellington Management Company. LLP, as investment advisor Steven M.HuffIIICU Vice President and Counsel ••'Signature Page - Amendment No. I to Premed Stock Purchase Agreement•" EFTA01143323  INVESTORS: QUISSETT PARTNERS, L.P. By: Wellington Management Company. LLP, as investment advisor By: Name: Title: kit nn a rnArt I . It: .)rt..V.a IC ;ina ."1". "Signature Page — Amendment No. Ito Preferred Stock Purchase Agreement"' EFTA01143324  INVESTORS: SALTHILL INVESTORS (BERMUDA) L.P. By: Wellington Management Company. LLP, as investment advisor By: Name: of rme er! Title: ***Signature Page— Amendment No. Ito Preferred Stock Purchase Agreement*" EFTA01143325  INVESTORS: SALTHILL PARTNERS, L.P. By: Wellington Management Company. LLP, as investment advisor By: Name: Title: rraii“.“ ••"Signature Page — Amendment No. I to Preferred Stock Purchase Agreemeni• • • EFTA01143326  SCHEDULE A SCHEDULE OF INVESTORS Initial Closing Amount Shares of Invested in Series B Series B Preferred Name and Address of Investor Preferred Stock Stock Third Rock Ventures, L.P. $2,499,998.44 1,106,194 do: Third Rock Ventures 29 Newbury Street, 3rd Floor Boston, MA 02116 KPCB Holdings, Inc. $2,499,998.44 1,106,194 do Kleiner Perkins Caufield & Byers 2750 Sand Hill Road Menlo Park, CA 94025 Google Ventures 2011, L.P. $4,999,999.14 2,212,389 1600 Amphitheatre Parkway Mountain View, CA 94043 Ann: Krishna Yeshwant Phone: Fax: with a copy to (which shall not constitute notice): Google Ventures 2011, L.P. Ann: General Counsel Email: Laboratory Corporation of America Holdings $9,999,998.28 4,424,778 531 South Spring Street Burlington, North Carolina 27215 Ann: Sandra D. van der Vaart, General Counsel Phone: Fax: Email: EFTA01143327  Amount Shares of Invested in Series B Series B Preferred Name and Address of Investor Preferred Stock Stock Roche Finance Ltd $4,999,999.14 2,212,389 Grenzacherstrasse 122 4070 Basel, Switzerland Fax: Attn: Carole Nuechterlein, Corporate Finance Email: with copy to (which shall not constitute notice): Hoffmann-La Roche Inc. 340 Kingsland Street Nutley, NJ 07110 Attn: General Counsel Fax: and: Roche Finance Ltd Grenzacherstrasse 122 4070 Basel. Switzerland Fax: Attn: Simon Meier Corporate Finance Email: Hawkes Bay Master Investors (Cayman) LP $2,540,000.44 1,123,894 do Wellington Management Company, LLP 280 Congress Street Boston MA 02210 Phone: Fax: Email: Quissett Investors (Bermuda) L.P. S2.764.761.96 1,223,346 do Wellington Management Company, LLP 280 Congress Street Boston MA 02210 Phone: Fax: Email: 2 EFTA01143328  Amount Shares of Invested in Series B Series B Preferred Name and Address of Investor Preferred Stock Stock Quissett Partners, L.P. $2,177,241.06 963,381 do Wellington Management Company, LLP 280 Congress Street Boston MA 02210 Phone: Fax: Email: Salthill Investors (Bermuda) L.P. $1,028,898.90 455,265 do Wellington Management Company, LLP 280 Congress Street Boston, MA 02210 Phone: Fax: Email: Salthill Partners, L.P. $1,361,100.82 602,257 do Wellington Management Company, LLP 280 Congress Street Boston MA 02210 Phone: Fax: Email: WuXi Pharmatech Healthcare Fund I, L.P. $999,998.02 442,477 Room 1-209A 288 FuTe Thong Road Waigaoqiao Free Trade Zone Shanghai 200131 People's Republic of China Attn: Edward Hu Phone: Fax: Email: 3 EFTA01143329  Amount Shares of Invested in Series B Series B Preferred Name and Address of Investor Preferred Stock Stock Deerfield Special Situations Fund, L.P. $1,438,878.72 636,672 do Deerfield Management Company, L.P. 780 Third Avenue, 37th Floor New York NY 10017 Fax: Attn: David Clark Email: Phone: Deerfield Special Situations International Master $1,689,119.48 747,398 Fund, L.P. do Deerfield Management Company, L.P. 780 Third Avenue, 37th Floor New York NY 10017 Fax: Attn: David Clark Email: Phone: Casdin Partners Master Fund, LP $1,499,998.16 663,716 do: Casdin Partners, LLC 1350 Avenue of the Americas Suite 1140 New York, NY 10019 Attn: Eli asdin and Brian Shim Email: Email: Leerink Swann Holdings, LLC S500,000.14 221,239 do Leerink Swann LLC 1 Federal Street Boston, MA 02110 Attn: Timoth A. G. Gerhold, General Counsel Phone: Email: 4 EFTA01143330  Amount Shares of Invested in Series B Series B Preferred Name and Address of Investor Preferred Stock Stock Leerink Swann Co-Investment Fund, LLC $499,997.88 221,238 do Leerink Swann LLC 1 Federal Street Boston, MA 02110 Attn: Timoth A. G. Gerhold, General Counsel Phone: Email: Redmile Capital Offshore Fund II, Ltd. $811,999.92 359,292 do Redmile Group, LLC 100 Pine Street, Suite 19225 San Francisco, CA 94111 Phone: Attn: Josh Garcia Email: Redmile Special Opportunities Fund, Ltd. $62,999.76 27,876 do Redmile Group, LLC 100 Pine Street, Suite 19225 San Francisco. CA 94111 Phone: Attn: Josh Garcia Email: Redmile Ventures, LLC $124,998.34 55,309 do Redmile Group, LLC 100 Pine Street, Suite 19225 San Francisco_CA94111 Phone: Attn: Josh Garcia Email: TOTAL: $42,499,987.04 18,805,304 5 EFTA01143331 Second Closing Amount Shares of Invested in Series B Series B Preferred Name and Address of Investor Preferred Stock Stock Gates Ventures, LLC 2365 Carillon Point $9,999,998.28 4,424,778 Kirkland WA 8033 Phone: Ann: General Counsel Email: Apoletto Limited do Tulloch & Co Solicitors $999,998.02 442,477 4 Hill Street London W1J 5NE United Kingdom Phone: Attn: Alastair Tulloch Email: jVen Capital, LLC do Evan Jones S499,997.88 221,238 Managing Member 11009 Cripplegate Road Potomac, MD 20854 Phone: Fax Email: Google Ventures 2011, L.P. 1600 Amphitheatre Parkway $1,861,530.36 823,686 Mountain View, CA 94043 Attn: Krishna Yeshwant Phone: Fax: with a copy to (which shall not constitute notice): Google Ventures 2011, L.P. Ann: General Counsel Email: 6 EFTA01143332  Amount Shares of Invested in Series B Series B Preferred Name and Address of Investor Preferred Stock Stock Casdin Partners Master Fund, LP do: Casdin Partners, LLC $100,911.26 44,651 1350 Avenue of the Americas Suite 1140 New York, NY 10019 Attn: Eli asdin and Brian Shim Email: Email: TOTAL: $13,462,435.80 5,956,830 7 EFTA01143333  ANNEX A Updates to Schedule of Exceptions FOUNDATION MEDICINE, INC. Supplements to the Schedule of Exceptions to the Series B Convertible Preferred Stock Purchase Agreement and Amendment No. 1 thereto The following supplement the exceptions to the representations, warranties and closing conditions made by Foundation Medicine, Inc. (the "Company") in Section 3 of the Series B Convertible Preferred Stock Purchase Agreement, dated September 10, 2012, among the Company and the Investors listed on Schedule A thereto, and in accordance with Section 5A(a) and 5A(o) to Amendment No. I thereto (the "Amendment"), dated as of December 28, 2012 (such Series B Convertible Preferred Stock Purchase Agreement as amended by the Amendment, the "Agreement"). All matters set forth in the Schedule of Exceptions attached to the Purchase Agreement are incorporated by reference herein. Unless otherwise noted herein, any capitalized term in this Supplement to the Schedule of Exceptions shall have the same meaning assigned to such term in the Agreement. The section numbers of this Supplement to the Schedule of Exceptions correspond to the first, or principal, section of the Agreement to which the disclosures relate; however, all information disclosed herein shall be deemed disclosed under and incorporated into any other section of the Agreement solely to the extent the subject matter and details of such disclosure would be reasonably apparent to the Investors. Certain agreements and other matters are listed below for informational purposes only, notwithstanding the fact that they are not required to be listed therein by the terms of the Agreement because they do not rise above applicable materiality thresholds or otherwise. In no event shall the listing of such agreements or other matters below be deemed or interpreted to broaden or otherwise amplify any representations and warranties contained in the Agreement. Furthermore, the disclosure of a particular item of information below shall not be taken as an admission by the Company that such disclosure is required to be made under the terms of any of such representations and warranties. 8 EFTA01143334  Section 3.9 of the Agreement Absence of Changes • Letters from Catalyst Assets LLC to the Company, dated as of November 29, 2012 and and October 18, 2012 • Letters from Inostics GmbH to the Company, dated as of October 8, 2012 9 EFTA01143335  Section 3.12 of the Agreement Intellectual Property (b) • Letters from Catalyst Assets LLC to the Company, dated as of November 29, 2012 and and October 18, 2012 • Letters from Inostics GmbH to the Company, dated as of October 8, 2012 • The following trademark was listed on the Supplemental Register: "The Molecular Information Company®" (d) • Letters from Catalyst Assets LLC to the Company, dated as of November 29, 2012 and and October 18, 2012 • Letters from Inostics GmbH to the Company, dated as of October 8, 2012 • The following trademark was listed on the Supplemental Register: "The Molecular Information Company®" I0 EFTA01143336  Section 3.16 of the Agreement Proprietary Information and Invention Assignment The Employee Non-Competition, Non-Solicitation, Confidentiality and Assignment Agreement, dated November 4, 2012, between the Company and Eric Nuemann, lists the following prior inventions or improvements (i) PURL Server, (ii) Idiomorphic Classes, (iii) Bayesian Semantic Mining, and (iv) Facetation(tm), which are not necessary to operate the Company's business as conducted or presently proposed to be conducted. 11 EFTA01143337  Section 5A(o) of the Amendment No Material Adverse Effect • Letters from Catalyst Assets LLC to the Company, dated as of November 29, 2012 and and October 18, 2012 12 EFTA01143338  ANNEX B Form of Side Letter with Gates Ventures, LLC December 2012 Gates Ventures, LLC 2365 Carillon Point Kirkland WA 98033 Phone: Attn: General Counsel Re: Management Rights Ladies and Gentlemen: This letter shall confirm our agreement that, effective as of the date hereof, Foundation Medicine, Inc. (the "Company") hereby grants Gates Ventures, LLC (the "Investor") the following contractual information rights, in addition to any information rights provided to the Investor pursuant to that certain Amended and Restated Investors' Rights Agreement, dated as September 10, 2012, by and among the Company, the Investor and certain other investors (as it may be amended and/or restated from time to time, the "Investors' Rights Agreement"), in connection with, and in partial consideration of, the Investor's purchase of shares of the Company's Series B Preferred Stock, par value $0.0001 per share (the "Series B Preferred Stock"), on the date hereof. I. The Investor shall have the right to one telephone conference with the Company's Chief Executive Officer (the "CEO") (or other senior officer of the Company approved in writing by the Investor) during each quarter of each fiscal year of the Company. Such telephone conference (i) shall include a reasonably comprehensive quarterly retrospective and prospective review of the Company's business, (ii) shall last for a mutually agreed-upon duration as necessary to provide for such review and (iii) shall occur at a mutually agreed-upon time. At each meeting, the CEO (or such other approved senior officer) shall deliver to the Investor (a) information concerning the Company which the Investor may reasonably request, and (b) such other information concerning the matters discussed at each meeting of the Company's Board of Directors (the "Board") that has occurred since the Investor's last meeting pursuant to sections (1) or (2) of this letter agreement, including, without limitation, all written materials distributed to the Board in connection with each such Board meeting, provided that such materials may be redacted as the CEO shall reasonably determine is necessary to protect the Company's confidential or proprietary information. 2. The Investor shall have the right to one in-person meeting with the CEO (or other senior officer of the Company approved in writing by the Investor) during each fiscal year of