Exhibit 10.37
RELEASE AGREEMENT
This Release Agreement is made between Charles R. Carelli, Jr. ("Executive") and
EXACT Sciences Corporation (the "Company"; together with Executive, the
"Parties").
WHEREAS, Executive's employment as Executive Vice President and Chief Financial
Officer of the Company shall terminate effective April 2, 2009 (the "Termination
Date"), it being understood that Executive will continue as a non-executive
employee of the Company until April 30, 2009;
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 FIFTEEN 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
FIFTEEN 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