As Filed With the Securities and Exchange Commission on July 28, 2016
Registration No. 333-         

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.  20549

 
FORM S-8
 
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
 
EXACT SCIENCES CORPORATION
(Exact name of registrant as specified in its charter)

Delaware	 	02-0478229	
(State or other jurisdiction of incorporation or organization)	 	(I.R.S. Employer Identification No.)	

441 Charmany Drive	 	 	
Madison, WI	 	53719	
(Address of principal executive offices)	 	(Zip Code)	
 
EXACT SCIENCES CORPORATION 2010 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
 
D. Scott Coward
Senior Vice President, General Counsel and Secretary
Exact Sciences Corporation
441 Charmany Drive
Madison, WI 53719
(Name and address of agent for service)
 
(608) 284-5700
(Telephone number, including area code,
of agent for service)
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company in Rule 12b-2 of the Exchange Act.

Large accelerated filer x	Accelerated filer o	
 	 	
Non-accelerated filer o	Smaller reporting company o	
(Do not check if a smaller reporting company)	 	
 
CALCULATION OF REGISTRATION FEE

Title of Securities to be Registered	 	Amount to be
 Registered (1)	 	Proposed Maximum 
Aggregate Offering 
Price Per Share (2)	 	Proposed 
Maximum 
Aggregate Offering 
Price (2)	 	Amount of
Registration Fee	 	
2010 Employee Stock Purchase Plan
 Common Stock, par value $0.01 per share	 	2,000,000	 	$	16.18	 	$	32,360,000	 	$	3,259	 	
Total Registration Fee	 	2,000,000	 	$	16.18	 	$	32,360,000	 	$	3,259	 	
(1)          In addition, pursuant to Rule 416(a), this Registration Statement also covers such indeterminate number of additional shares of Common Stock as is necessary to eliminate any dilutive effect of any future stock split, stock dividend or similar transaction.
 
(2)          Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and 457(h) of the Securities Act of 1933, as amended, and based on the average of the high and low prices for the Common Stock on July 27, 2016 as reported on The Nasdaq Capital Market.

 

 
EXPLANATORY NOTE
 
Pursuant to General Instruction E to Form S-8 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement is filed by Exact Sciences Corporation, a Delaware corporation (the “Company” or “Registrant”), for the purpose of registering 2,000,000 additional shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), for offer and sale under the Exact Sciences Corporation 2010 Employee Stock Purchase Plan, as amended (the “2010 Plan”), pursuant to an amendment to the 2010 Plan approved by the Company’s stockholders on July 28, 2016 (the “Amendment”). After taking into account the shares added by the Amendment, the aggregate number of shares of Common Stock that may be issued under the 2010 Plan is 2,800,000, which includes (i) 500,000 shares of Common Stock previously registered under the Registration Statement on Form S-8, File No. 333-211099, filed with the Securities and Exchange Commission (the “SEC”) on May 3, 2016 (the “ESPP First Amendment Registration Statement”) and (ii) 300,000 shares of Common Stock previously registered under the Registration Statement on Form S-8, File No. 333-168909, filed with the SEC on August 17, 2010 (the “ESPP Original Registration Statement” and, together with the ESPP First Amendment Registration Statement, the “Original Registration Statements”).  Pursuant to Instruction E to Form S-8, the Company hereby incorporates the Original Registration Statements by reference.
 
PART I
 
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
 
Item 1. Plan Information.
 
The information required by this Item 1 is omitted from the registration statement in accordance with Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”) and the Note to Part I of Form S-8.
 
Item 2. Registrant Information and Employee Plan Annual Information.
 
The information required by this Item 2 is omitted from this registration statement in accordance with Rule 428(b)(1) of the Securities Act and the Note to Part I of Form S-8.
 
PART II
 
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
 
Item 3.          Incorporation of Documents by Reference.
 
The following documents have been filed by the Company with the SEC and are incorporated herein by reference:
 
·                   Annual Report on Form 10-K for the fiscal year ended December 31, 2015 filed on February 24, 2016;
 
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·                   Quarterly Report on Form 10-Q for the quarter ended June 30, 2016 filed on July 26, 2016;
 
·                   Quarterly Report on Form 10-Q for the quarter ended March 31, 2016 filed on May 3, 2016 (as amended by Amendment No. 1 on Form 10-Q/A to the Quarterly Report on Form 10-Q for the quarter ended March 31, 2016 filed with the SEC on June 3, 2016);
 
·                   Current Report on Form 8-K filed on January 27, 2016 (other than the portions of this document furnished but deemed not to have been filed); and
 
·                   The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A, filed with the SEC pursuant to Section 12(g) of the Exchange Act on December 26, 2000, including any further amendment or report filed hereafter for the purpose of updating such description.
 
All reports and other documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) after the date hereof, and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such reports and documents.  The Company is not incorporating by reference any documents or portions thereof that are not considered to be “filed” with the SEC.
 
Any statement contained herein or in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated herein by reference modifies or supersedes such earlier statement.  Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
 
Item 4.  Description of Securities.
 
Not applicable.
 
Item 5.  Interests of Named Experts and Counsel.
 
Not applicable.
 
Item 6.  Indemnification of Directors and Officers.
 
The Company is incorporated under the laws of the State of Delaware. Section 145 (“Section 145”) of the Delaware General Corporation Law, as the same exists or may hereafter be amended (“DGCL”), provides, among other things, that a Delaware corporation may indemnify any persons who were, are or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or
 
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was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was illegal.
 
Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against him and incurred by him in any such capacity, arising out of his status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145.
 
The Company’s certificate of incorporation provides that, except to the extent that the DGCL prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, directors of the Company shall not be personally liable to the Company or its stockholders for monetary damages for any breach of their fiduciary duty as directors except (i) for any breach of the director’s duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a known violation of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper impersonal benefit. In addition, the certificate of incorporation of the Company provides that the Company shall indemnify each person who was or is a party, or is threatened to be made a party to, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was, or has agreed to become, one of the Company’s directors or officers or is or was serving, or has agreed to serve, at the Company’s request as a director, officer or trustee of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against all expenses, including attorney’s fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding and any appeal therefrom, if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Company, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
 
All of the Company’s directors and officers are covered by insurance policies maintained by the Company against specified liabilities for actions taken in their capacities as such, including liabilities under the Securities Act.
 
Item 7.  Exemption from Registration Claimed.
 
Not applicable.
 
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Item 8.          Exhibits.
 
Reference is made to the attached Exhibit Index, which is incorporated herein by reference.
 
Item 9.  Undertakings.
 
(a)   The undersigned registrant hereby undertakes:
 
(1)  To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
 
(i)    To include any prospectus required by Section 10(a)(3) of the Securities Act;
 
(ii)   To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement.  Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of a prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
 
(iii)  To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
 
(b)  The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(c)  Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.  In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will,
 
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unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
 
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SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Madison, State of Wisconsin, on July 28, 2016.

 	EXACT SCIENCES CORPORATION	

 	By	/s/ Kevin T. Conroy	
 	 	Kevin T. Conroy	
 	 	President and Chief Executive Officer	
 
POWER OF ATTORNEY
 
Each person whose signature appears below constitutes and appoints Kevin T. Conroy and Maneesh K. Arora his or her true and lawful attorneys-in-fact and agents, each acting alone, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all parties, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
 
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the date indicated.

Name	 	Title	 	Date	
 	 	 	 	 	
/s/ Kevin T. Conroy	 	President and Chief Executive	 	July 28, 2016	
Kevin T. Conroy	 	Officer	 	 	
 	 	(Principal Executive Officer) and	 	 	
 	 	Chairman of the Board	 	 	
 	 	 	 	 	
/s/ Maneesh K. Arora	 	Senior Vice President and Chief	 	July 28, 2016	
Maneesh K. Arora	 	Operating Officer and Director	 	 	
 	 	 	 	 	
/s/ John K. Bakewell	 	Chief Financial Officer	 	July 28, 2016	
John K. Bakewell	 	(Principal Financial Officer)	 	 	
 	 	 	 	 	
/s/ Thomas D. Carey	 	Director	 	July 28, 2016	
Thomas D. Carey	 	 	 	 	
 
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/s/ James E. Doyle	 	Director	 	July 28, 2016	
James E. Doyle	 	 	 	 	
 	 	 	 	 	
/s/ John A. Fallon, M.D.	 	Director	 	July 28, 2016	
John A. Fallon, M.D.	 	 	 	 	
 	 	 	 	 	
/s/ Daniel J. Levangie	 	Director	 	July 28, 2016	
Daniel J. Levangie	 	 	 	 	
 	 	 	 	 	
/s/ Lionel N. Sterling	 	Director	 	July 28, 2016	
Lionel N. Sterling	 	 	 	 	
 	 	 	 	 	
/s/ David A. Thompson	 	Director	 	July 28, 2016	
David A. Thompson	 	 	 	 	
 	 	 	 	 	
/s/ Michael S. Wyzga	 	Director	 	July 28, 2016	
Michael S. Wyzga	 	 	 	 	
 	 	 	 	 	
/s/ Katherine S. Zanotti	 	Director	 	July 28, 2016	
Katherine S. Zanotti	 	 	 	 	
 
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FORM S-8
REGISTRATION STATEMENT
 
EXACT SCIENCES CORPORATION
 
EXHIBITS
Item 8
 
EXHIBIT INDEX

Exhibit	 	 	
Number	 	Description	
 	 	 	
4.1	 	Sixth Amended and Restated Certificate of Incorporation of the Registrant (previously filed as Exhibit 3.3 to our Registration Statement on Form S-1 (File No. 333-48812), which is incorporated herein by reference)	
 	 	 	
4.2	 	First Amendment to Sixth Amended and Restated Certificate of Incorporation of the Registrant (previously filed as Appendix A to the Definitive Proxy Statement for the Registrant’s 2014 Annual Meeting of Stockholders filed on June 20, 2014, which is incorporated herein by reference)	
 	 	 	
4.3	 	Second Amended and Restated By-Laws of the Registrant, dated October 27, 2015 (previously filed as Exhibit 3.3 to the Registrant’s Report on Form 10-Q for the period ended September 30, 2015, which is incorporated herein by reference)	
 	 	 	
4.4	 	Exact Sciences Corporation 2010 Employee Stock Purchase Plan (previously filed as Appendix B to the Definitive Proxy Statement for the Registrant’s 2010 Annual Meeting of Stockholders filed on April 30, 2010, which is incorporated herein by reference)	
 	 	 	
4.5	 	Amendment No. 1 to Exact Sciences Corporation 2010 Employee Stock Purchase Plan (previously filed as Appendix A to the Definitive Proxy Statement for the Registrant’s 2014 Annual Meeting of Stockholders filed on April 30, 2014, which is incorporated herein by reference)	
 	 	 	
4.6	 	Amendment No. 2 to Exact Sciences Corporation 2010 Employee Stock Purchase Plan (previously filed as Appendix A to the Definitive Proxy Statement for the Registrant’s 2016 Annual Meeting of Stockholders filed on April 29, 2016, which is incorporated herein by reference)	
 	 	 	
5	 	Opinion of K&L Gates LLP, filed herewith	
 	 	 	
23.1	 	Consent of Independent Registered Public Accounting Firm, filed herewith	
 
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23.2	 	Consent of K&L Gates LLP (contained in Exhibit 5), filed herewith	
 	 	 	
24	 	Power of Attorney (see page 6)	
 
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Exhibit 5

	 	K&L GATES LLP
HEARST TOWER
47TH FLOOR
214 NORTH TRYON STREET
CHARLOTTE, NC 28202
T 704.331.7400   F 704.331.7598   klgates.com	
 
July 28, 2016
 
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 2,000,000 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 2010 Employee Stock Purchase Plan, as amended (the “Plan”).  Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Plan.
 
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: (a) the Registration Statement, (b) the Company’s Sixth Amended and Restated Certificate of Incorporation, as amended through the date hereof, (c) the Company’s Second Amended and Restated By-Laws as in effect on the date hereof, (d) the Plan and (e) a certificate of an officer of the Company, dated as of the date hereof.  Other than our review of the documents listed in (a) through (e) above, we have not reviewed any other documents or made any independent investigation for the purpose of rendering this opinion and we make no representation as to the scope or sufficiency of our document review for your purposes.  With your consent, our opinion is qualified in all respects by the scope of such document examination.
 
For the purposes of this opinion letter, we have assumed that: (a) each document submitted to us is accurate and complete; (b) each such document that is an original is authentic; (c) each such document that is a copy conforms to an authentic original; (d) all signatures on each such document are genuine; and (e) the Company is and shall remain at all times a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.  We have further assumed the legal capacity of natural persons, and we have assumed that each party to the documents we have examined or relied on has the legal capacity or authority and has satisfied all legal requirements that are applicable to that party to the extent necessary to make such documents enforceable against that party.  We have not verified any of those assumptions.

 
In rendering our opinion below, we also have assumed that: (a) the Company will have sufficient authorized and unissued shares of Common Stock at the time of each issuance of a Share under the Plan; (b) the Shares will be evidenced by appropriate certificates, duly executed and delivered or the Company’s Board of Directors will adopt a resolution, providing that all Shares shall be uncertificated in accordance with Section 158 of the Delaware General Corporation Law (the “DGCL”), prior to their issuance; (c) the issuance of each Share will be duly noted in the Company’s stock ledger upon its issuance; (d) the Plan constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms; (e) the Company will receive consideration for each Share at least equal to the par value of such share of Common Stock and in the amount required by the Plan (or the award agreement issued thereunder); and (f) prior to the issuance of any Shares under the Plan, the Company’s Board of Directors will duly authorize each Award granted under the Plan pursuant to an Award Agreement and in accordance with the DGCL and the Plan.
 
Our opinion set forth below is limited to the DGCL.
 
Based upon and subject to the foregoing, it is our opinion that the Shares are duly authorized for issuance by the Company pursuant to, and on the terms set forth in, the Plan and, when, and if, issued pursuant to the terms of the Plan and the applicable Award Agreement will be validly issued, fully paid, and nonassessable.
 
This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
 
We hereby consent to the filing of this opinion letter with the Commission as Exhibit 5 to the Registration Statement.  In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.

 	Yours truly,	
 	 	
 	/s/ K&L Gates LLP	
 	 	
 	K&L Gates LLP	

Exhibit 23.1
 
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
 
Exact Sciences Corporation
Madison, Wisconsin
 
We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of our reports dated February 24, 2016, relating to the consolidated financial statements, and the effectiveness of Exact Sciences Corporation’s internal control over financial reporting, appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2015.
 
/s/ BDO USA, LLP
 
BDO USA, LLP
Milwaukee, Wisconsin
 
July 28, 2016