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
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