Exhibit 5
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August 17, 2010
Exact Sciences Corporation
441 Charmany Drive
Madison, Wisconsin 53719
Ladies and Gentlemen:
We have acted as your counsel in connection with the Registration Statement on Form S-8 (the “Registration Statement”) filed on the date hereof with the Securities and Exchange Commission under the Securities Act of 1933 (the “1933 Act”) for the registration of 4,7000,000 shares (the “Shares”) of Common Stock, par value $0.01 per share, of Exact Sciences Corporation, a Delaware corporation (the “Company”), issuable pursuant to the Exact Sciences Corporation 2010 Omnibus Long-Term Incentive Plan and the Exact Sciences Corporation 2010 Employee Stock Purchase Plan (collectively, the “Plans”).
You have requested our opinion as to the matters set forth below in connection with the Registration Statement. For purposes of rendering that opinion, we have examined the Registration Statement, the Company’s Certificate of Incorporation, as amended, and Bylaws, and the corporate action of the Company that reserved and authorized the Shares for issuance by the Company pursuant to the terms of the Plans, and we have made such other investigation as we have deemed appropriate. We have examined and relied upon certificates of public officials and, as to certain matters of fact that are material to our opinion, we have also relied on a certificate of an officer of the Company. In rendering our opinion, we also have made the assumptions that are customary in opinion letters of this kind. We have not verified any of those assumptions.
Our opinion set forth below is limited to the Delaware General Corporation Law, including the applicable provisions of the Delaware Constitution and reported judicial decisions interpreting those laws.
Based upon and subject to the foregoing, it is our opinion that when (i) specifically authorized for issuance by the Company’s Board of Directors or a duly authorized committee thereof (the “Authorizing Resolutions”), (ii) the Registration Statement has become effective under the Securities Act and (iii) shares of Common Stock have been issued consistent with the Authorizing Resolutions and as contemplated by the Plan, such shares of Common Stock will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving our consent we do not thereby admit that we are in the category of persons