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