Exhibit 10.36


 


RELEASE AGREEMENT


 


This Release
Agreement is made between Jeffrey R. Luber (“Executive”) and EXACT Sciences
Corporation (the “Company”; together with Executive, the “Parties”).


 


WHEREAS, Executive’s employment with the Company
shall terminate effective April 2, 2009 (the “Termination Date”);


 


WHEREAS, the Parties entered into an Employee
Retention Agreement dated April 18, 2008 (the “Employment Agreement”)
which, among other things, specifies severance terms in the event of the
termination of Executive’s employment by the Company other than for Cause;


 


WHEREAS, pursuant to Section 1 of the
Employment Agreement, the Company agreed to provide Executive with certain
severance benefits (the “Severance Benefits”) in exchange for, among other
things, his entering into a full comprehensive release of claims in the form
attached to the Employment Agreement; and


 


WHEREAS, the Parties have mutually agreed to
modify certain of the Severance Benefits in exchange for, among other things,
Executive entering into this comprehensive Release Agreement.


 


NOW,
THEREFORE, for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Executive and the Company hereby agree as follows:


 


1.             Non-Contingent Payments. 
The Company has paid and/or shall pay the following to the Executive
regardless of whether he agrees to the terms of this Release Agreement: (a) all
of the Executive’s base salary accrued through the Termination Date; (b) reimbursement
for any and all business expenses required to be reimbursed to the Executive
pursuant to the Company’s expense reimbursement policy, and (c) Executive’s
accrued but unused vacation.


 


2.             Severance Benefits. 
For purposes of the Employment Agreement, the Executive’s employment
shall be treated as having been involuntarily terminated by the Company for a
reason other than Cause.  Since the
Employment Agreement satisfies the various requirements of the severance pay
and short-term deferral exemptions to Section 409A (“Section 409A”)
of the Internal Revenue Code (the “Code”), Executive’s severance pay is not
considered deferred compensation under the Code and, therefore, the salary
continuation payments may be accelerated and converted to a lump sum payment
without subjecting the payments to the 20 percent additional tax imposed
pursuant to Section 409A. 
Consistent with this and the terms of the Employment Agreement, the
Company agrees to provide Executive with the following Severance Benefits in
exchange for, among other things, his signing and complying with the terms of
this Release Agreement:


 


(a)           a lump sum payment equal to eighteen
months of Executive’s base salary at the rate as of the Termination Date, less
applicable deductions and withholdings (the “Lump Sum Payment); and


 

















 


(b)           continuation of group health plan
benefits to the extent authorized by the state law commonly known as “mini-COBRA”,
with the cost of the regular premium for such benefits paid for by the Company
for eighteen months from the Termination Date provided Executive elects and
remains eligible for mini-COBRA.


 


The Lump Sum
Payment will be made on March 31, 2009 provided this Release Agreement has
become fully effective on or before that date.


 


3.             General Release. Executive irrevocably and unconditionally releases
and forever discharges the Company, all of its affiliated and related entities,
its and their respective predecessors, successors and assigns, its and their
respective employee benefit plans and the fiduciaries of such plans, and the
current and former officers, directors, stockholders, employees, attorneys,
accountants, and agents of each of the foregoing in their official and personal
capacities (collectively referred to as the “Releasees”) generally from all
claims, demands, debts, damages and liabilities of every name and nature, known
or unknown (“Claims”) that, as of the date when Executive signs this Release
Agreement, he has, ever had, now claims to have or ever claimed to have had
against any or all of the Releasees. 
This release includes, without implication of limitation, the complete
waiver and release of all Claims of or arising in connection with or for: the
Employment Agreement including Claims for breach of express or implied
contract; wrongful termination of employment whether in contract or tort; intentional,
reckless, or negligent infliction of emotional distress; breach of any express
or implied covenant of employment, including the covenant of good faith and
fair dealing; interference with contractual or advantageous relations, whether
prospective or existing; deceit or misrepresentation; discrimination or
retaliation under state, federal, or municipal law, including, without
implication of limitation, Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., as amended, the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq., the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq.; Massachusetts General Laws. ch. 151B;
defamation or damage to reputation; reinstatement; punitive or emotional
distress damages; wages, severance pay, vacation pay, back or front pay or
other forms of compensation; and attorney’s fees and costs.  Executive understands that this general
release of Claims extends to any and all Claims related to Executive’s
employment by the Company and the termination of his employment.  Executive understands that this general
release does not extend to any rights or claims that may arise out of acts or
events that occur after the date on which Executive signs this Agreement.  Executive represents that he has not assigned
to any third party and has not filed with any agency or court any Claim
released by this Agreement.


 


4.             Restrictive Covenants. 
Executive hereby reaffirms his continuing obligations pursuant to the
Employee Non-Disclosure and Developments Agreement dated November 6, 2002
and the Employee Non-Competition Agreement dated November 9, 2002
(collectively, the “Restrictive Covenants”), which shall remain in full force
and effect regardless of the effectiveness or any termination of this Release
Agreement.  For the avoidance of doubt,
the Restrictive Covenants are appended to this Release Agreement.


 


5.             Option Treatment.


 


(a)           Pursuant to the EXACT Sciences
Corporation 2000 Stock Option and Incentive Plan and subject to the associated
stock option agreements (collectively “Equity Documents”), as 


 


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of March 31, 2009, Executive held vested and unvested options to
purchase 620,000 shares of the Company’s stock with an exercise price of
greater than $2.00 per share (collectively, the “Repurchase Options”).  In lieu of accelerated vesting, an extension
of the option exercise period and any other enhanced equity rights whether
arising from the Employment Agreement, the Equity Documents or otherwise, the
Company shall repurchase from Executive all of the Repurchase Options for an
aggregate purchase price of $39,100 (the “Repurchase”), less applicable
deductions and withholdings.  The
Repurchase will take place on March 31, 2009.  Executive acknowledges and agrees that, after
the Repurchase, he will have no further interest in any of the Repurchase
Options.


 


(b)           As of March 31, 2009, Executive held
vested and unvested options to purchase 175,000 shares of the Company’s stock
with an exercise price of $1.83 per share (collectively, the “Acceleration
Options”).  Pursuant to the terms of the
Equity Documents and the Employment Agreement, all unvested Acceleration
Options that by their original terms would become exercisable within nine (9) months
following the last day of Executive’s employment with the Company shall
immediately accelerate and become fully exercisable as of the last day of
Executive’s employment with the Company, and all other unvested Acceleration
Options shall terminate as of such date. 
In addition, pursuant to the terms of the Equity Documents and the
Employment Agreement, Executive may exercise any vested Acceleration Options
(including any previously-unvested Acceleration Options that vest pursuant to
this Section 5(b)) until the date which is two (2) years after the
last day of Executive’s employment with the Company (but not in any event later
than the expiration date of the Acceleration Options).


 


6.             Termination of Severance Benefits. 
Executive acknowledges that his right to the Severance Benefits is
conditional on his compliance with the Restrictive Covenants.  In the event that Executive fails to comply
with any of the Restrictive Covenants, in addition to any other legal or
equitable remedies it may have for such breach, the Company shall have the
right to terminate the Severance Benefits set forth in Section 2 of this
Release Agreement.  The termination of
those payments in the event of such breach by the Executive shall not affect
the ongoing applicability of the Restrictive Covenants.


 


7.             Time for Consideration; Effective Date. 
Executive acknowledges that he has been advised to consult with an
attorney before signing this Release Agreement. 
Executive has until March 31, 2009 to consider this Release
Agreement.  To accept this Release Agreement,
he must return a signed original of this Release Agreement to the Company at or
before noon on March 31, 2009.  This
Release Agreement shall become effective upon execution (the “Effective Date”).  Executive acknowledges that he has not been
induced to sign this Release Agreement by any representations of the Company
other than those set forth in this Release Agreement.


 


8.             Enforceability.  Executive
acknowledges that, if any portion or provision of this Release Agreement or the
Restrictive Covenants (including, without limitation, any portion or provision
of any section of those agreements) shall to any extent be declared illegal or
unenforceable by a court of competent jurisdiction, then the remainder other
than those as to which it is so declared illegal or unenforceable, shall not be
affected thereby, and each portion and provision shall be valid and enforceable
to the fullest extent permitted by law.


 


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9.             Entire Agreement. 
This Release Agreement along with the Restrictive Covenants constitute
the entire agreement between Executive and the Company concerning Executive’s
relationship with the Company, and supersedes and replaces any and all prior
agreements and understandings between the Parties concerning the Executive’s
relationship with the Company including, without limitation, the Employment
Agreement; provided, however, that Section 5
of the Employment Agreement “Tax Gross Up for Excise Taxes” shall continue to
be in full force and effective and is unaffected by this Release Agreement.


 


10.           Enforcement.  Executive
agrees that it would be difficult to measure any harm caused to the Company
that might result from any breach by Executive of any of the Restrictive
Covenants, and that in any event money damages would be an inadequate remedy
for any such breach.  Accordingly,
Executive agrees that if he breaches, or proposes to breach, any portion of the
Restrictive Covenants, the Company shall be entitled, in addition to all other
remedies it may have, to an injunction or other appropriate equitable relief to
restrain any such breach, without showing or proving any actual damage to the
Company and without the necessity of posting a bond.


 


11.           Waiver.  No waiver of
any provision of this Release Agreement shall be effective unless made in
writing and signed by the waiving party. 
The failure of either Party to require the performance of any term or
obligation of this Release Agreement, or the waiver by either Party of any
breach of this Release Agreement, shall not prevent any subsequent enforcement
of such term or obligation or be deemed a waiver of any subsequent breach.


 


12.           Governing Law; Interpretation. 
This Release Agreement shall be interpreted and enforced under the laws
of the Commonwealth of Massachusetts, without regard to conflict of law
principles.  In the event of any dispute,
this Release Agreement is intended by the parties to be construed as a whole,
to be interpreted in accordance with its fair meaning, and not to be construed
strictly for or against either Party or the “drafter” of all or any portion of
this Release Agreement.


 


13.           Taxes.  All forms of
payments and benefits referred to in this Release Agreement are subject to
reduction to reflect applicable withholding, payroll taxes and other deductions
required by law.  Aside from rights
arising under Section 5 of the Employment Agreement, the Executive will
not make any claim against the Company or its board of directors related to tax
liabilities arising from payments and benefits received pursuant to the Release
Agreement.


 


14.           Counterparts.  This Release
Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be taken to be an original, but all of which
together shall constitute one and the same document.


 


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Left Blank]


 


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IN
WITNESS WHEREOF,
the Parties, intending to be legally bound, have executed this Release
Agreement on the date(s) indicated below.


 


	
  EXACT
  Sciences Corporation

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Patrick Zenner

  	
   

  	
  March 27, 2009

  
	
   

  	
  Patrick
  Zenner, Chairman of the Board

  	
   

  	
  Date

  



 


 


I HAVE READ
THIS AGREEMENT THOROUGHLY, UNDERSTAND ITS TERMS AND HAVE SIGNED IT KNOWINGLY
AND VOLUNTARILY.  I UNDERSTAND THAT THIS
AGREEMENT IS A LEGAL DOCUMENT.


 


 


	
   

  	
  /s/ Jeffrey R. Luber

  	
   

  	
  March 31, 2009

  
	
   

  	
  Jeffrey
  R. Luber

  	
   

  	
  Date

  



 


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