0001104659-04-029251.txt : 20041001 0001104659-04-029251.hdr.sgml : 20041001 20040930202836 ACCESSION NUMBER: 0001104659-04-029251 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20040928 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Regulation FD Disclosure ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20041001 DATE AS OF CHANGE: 20040930 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EXACT SCIENCES CORP CENTRAL INDEX KEY: 0001124140 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMMERCIAL PHYSICAL & BIOLOGICAL RESEARCH [8731] IRS NUMBER: 204782291 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-32179 FILM NUMBER: 041056429 BUSINESS ADDRESS: STREET 1: 100 CAMPUS DRIVE CITY: MARLBOROUGH STATE: MA ZIP: 01752 BUSINESS PHONE: 5086831200 MAIL ADDRESS: STREET 1: 100 CAMPUS DRIVE CITY: MARLBOROUGH STATE: MA ZIP: 01752 FORMER COMPANY: FORMER CONFORMED NAME: EXACT CORP DATE OF NAME CHANGE: 20000919 8-K 1 a04-11035_18k.htm 8-K

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

the Securities Exchange Act of 1934

Date of report (Date of earliest event reported): September 28, 2004

EXACT SCIENCES CORPORATION

(Exact Name of Registrant as Specified in its Charter)

Delaware

(State or Other Jurisdiction of Incorporation)

000-32179		02-0478229
(Commission File Number)		(IRS Employer Identification No.)

100 Campus Drive, Marlborough, Massachusetts		01752
(Address of Principal Executive Offices)		(Zip Code)

Registrant’s telephone number, including area code: (508) 683-1200

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01 Entry into a Material Definitive Agreement.

On September 28, 2004, EXACT Sciences Corporation (the “Company”) entered into Executive Agreements with Jeffrey R. Luber, its General Counsel, and Harry W. Wilcox, its Senior Vice President and Chief Financial Officer. These agreements each provide that upon the occurrence of certain triggering events within one year of a Company change of control event, Mr. Luber and Mr. Wilcox, respectively, will be entitled to receive severance payments for a period of twelve months at a rate equal to their base salary at the time of termination of employment. Copies of these Executive Agreements are filed as Exhibit 10.1 and Exhibit 10.2 to this Report on Form 8-K.

On September 28, 2004, the Company entered into an Incentive Stock Option Agreement with Harry W. Wilcox. Pursuant to this agreement, the Company granted Mr. Wilcox an option to purchase 150,000 shares of the Company’s common stock at an exercise price of $3.89 per share. The option is subject to a four-year vesting schedule, with 25% of the option becoming exercisable on the first anniversary of the date of grant and the remaining 75% vesting monthly over the following 36 months. A copy of the Company’s form of Incentive Stock Option Agreement, pursuant to which Mr. Wilcox’s option grant was made, is filed as Exhibit 10.3 to this Report on Form 8-K.

Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers.

On September 28, 2004, the Company appointed Harry W. Wilcox as Senior Vice President and Chief Financial Officer of the Company. Mr. Wilcox will be paid an annual salary of $260,000 and, as described above in Item 1.01 of this Report, was granted an initial option to purchase 150,000 shares of the Company’s common stock. Mr. Wilcox will also receive comprehensive group health, disability, disability and life insurance benefits and the opportunity to participate in the Company’s 401(k) Plan. As described in Item 1.01 of this Report on Form 8-K, Mr. Wilcox and the Company have also entered into an Executive Agreement.

Prior to joining the Company, Mr. Wilcox, age 50, was Managing Partner at Beacon BioPartners, LLC, a consulting firm providing strategic and business development services to life sciences companies. From April 2003 to June 2003, Mr. Wilcox served as Interim Chief Executive Officer of Biostratum, Inc., a biotechnology company developing a drug to treat the side effects of diabetes. From May 2000 to July 2003, Mr. Wilcox served as Executive Vice President and Chief of Finance and Corporate Development at Pyrosequencing AB, a Swedish Company that develops and manufactures instruments designed to analyze short sequences of DNA for use in applied genomics. Mr. Wilcox also worked at biotechnology company Cambridge NeuroSciences, Inc. from December 1995 to May 2000, where he held the positions of Senior Vice President, Finance and Business Development and Chief Financial Officer from December 1995 to May 1998 and President and Chief Executive Officer from May 1998 to May 2000. Mr. Wilcox served as a director of Cambridge NeuroSciences, Inc. from May 1998 to May 2001. Mr. Wilcox is a Certified Public Accountant and holds a BS in Finance from the University of Arizona and an MBA from Boston University.

Prior to Mr. Wilcox's appointment, he served as an outside consultant to the Company since June 2004. During this period Mr. Wilcox received payments from the Company in an aggregate amount of $64,000.

Item 7.01 Regulation FD Disclosure.

On September 28, 2004, the Company issued a press release announcing that it had appointed Harry W. Wilcox as Senior Vice President and Chief Financial Officer of the Company. A copy of this press release is being furnished as Exhibit 99.1 to this Report on Form 8-K.

Item 9.01 Financial Statements and Exhibits.

10.1 Executive Agreement between the Company and Jeffrey R. Luber dated September 28, 2004.

10.2 Executive Agreement between the Company and Harry W. Wilcox dated September 28, 2004.

10.3 Form of Incentive Stock Option Agreement.

99.1 Press Release issued by the Company on September 28, 2004, furnished herewith.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	EXACT Sciences Corporation


September 30, 2004	By:	/s/ Jeffrey R. Luber
		Jeffrey R. Luber
		General Counsel and Secretary

EXHIBIT INDEX

Exhibit Number		Description

10.1		Executive Agreement between the Company and Jeffrey R. Luber dated September 28, 2004.

10.2		Executive Agreement between the Company and Harry W. Wilcox dated September 28, 2004.

10.3		Form of Incentive Stock Option Agreement.

99.1		Press Release issued by the Company on September 28, 2004, furnished herewith.

EX-10.1 2 a04-11035_1ex10d1.htm EX-10.1

Exhibit 10.1

September 28, 2004

Jeffrey R. Luber

General Counsel

EXACT Sciences Corporation

100 Campu s Drive

Marlborough, MA 01752

Re: Executive Agreement

Dear Jeffrey:

This letter agreement (“Agreement”) will confirm the terms of severance payments due to you by EXACT Sciences Corporation (“EXA CT” or the “Company”) in the event your employment is terminated pursuant to Section 1 herein.

1. Subject to the conditions set forth below, you will be entitled to receive “Severance Payments” (as set forth below in Section 2) for a period of twelve (12) months following the occurrence of any one of the events set forth in (i), (ii) or (iii) below within one year following the closing of (A) the sale by the Company of all or substantially all of its assets, or (B) the merger or consolidation of the Company with or into another entity in a transaction where the shares of the Company’s capital stock outstanding immediately prior to the closing of such merger or consolidation represent or are converted into or exchanged for shares that represent le ss than a majority of the shares of capital stock of the resulting or surviving entity outstanding immediately after the closing of such merger or consolidation (each of the foregoing being referred to as “Business Event”):

(i) the termination of your employment for any reason other than Cause, for purposes of this Agreement, “Cause” shall mean termination for any one of the following reasons: (i) your gross negligence in the performance of your duties as an employee and officer of the Company (as determined by a majority of the directors of the Company other than, if applicable, you) or (ii) criminal misconduct by you in connection with the performance of your duties as an employee and officer of the Company; or

(ii) you suffer a diminution in job responsibility or a reduction in compensation; or

(iii) the Company moves your place of employment more than 35 miles from Company’s current office location in Marlborough, Massachusetts.

Notwithstanding, this Paragraph 1, the issuance by the Company of its capital stock in an equity financing, either in a private or public transaction, shall not constitute a Business Event.

2. The Severance Payments will be equal to salary continuation at a rate equal to your base salary at the time of your termination of employment from EXACT. The Severance Payments will be paid in accordance with EXACT’s then existing payroll practices as such practices may be established or modified from time to time. The Severance Payments shall be subject to applicable federal, state and local withholding and payroll taxes. You will only be entitled to

Severance Payments upon the occurrence of the events specified in Section 1 of this Agreement. You will not be entitled to any Severance Payments or other benefits if you voluntarily resign from EXACT or if your employment is terminated by EXACT for Cause.

3. Prior to, and as a condition of, receiving the Severance Payments set forth in this Agreement, you agree to sign a full and comprehensive release in a form and of a scope acceptable to the Company and you at the time of your termination of employment. EXACT shall have no obligation to pay you any Severance Payments unless and until it receives this release executed by you.

4. If you breach your obligations under the Employee Non-Disclosure and Developments Agreement and Non Competition Agreement executed between you and EXACT, the Company may immediately cease payment of all Severance Payments set forth in this Agreement. The cessation of any Severance Payments shall be in addition to, and not as an alternative to, any other remedies at law or in equity available to EXACT, including the right to seek specific performance or an injunction.

5. Nothing in this Agreement is intended, or shall be construed, to restrict or otherwise limit EXACT’s right to terminate your employment with or without Cause and with or without notice. This letter is not a guarantee of continued employment, it being understood you are and continue to be employed at-will.

6. Breach of any of the terms of this Agreement by you shall be considered a material breach of this Agreement. In the event of such a breach, EXACT shall be released from any obligations to make any Severance Payments under this Agreement or, if any such payments have been made, EXACT shall be entitled to recover from you any amounts already paid under this Agreement in addition to any and all of its remedies under law arising of such breach.

7. This Agreement sets forth the entire Agreement of the parties with respect to the subject matter hereof and may not be changed orally.

Please indicate your acceptance of this Agreement by signing the enclosed copy of this letter and returning it to me.

	Very truly yours,


	/s/ Don Hardison
	Don Hardison
	Chief Executive Officer


	/s/ Jeffrey R. Luber
	Name: Jeffrey R. Luber
	Title: General Counsel and Secretary

EX-10.2 3 a04-11035_1ex10d2.htm EX-10.2

Exhibit 10.2

September 28, 2004

Harry Wilcox

Senior Vice President and Chief Financial Officer

EXACT Sciences Corporation

100 Campus Drive

Marlborough, MA 01752

Re: Executive Agreement

Dear Harry:

This letter agreement (“Agreement”) will confirm the terms of severance payments due to you by EXACT Sci ences Corporation (“EXACT” or the “Company”) in the event your employment is terminated pursuant to Section 1 herein.

1. Subject to the conditions set forth below, you will be entitled to receive “Severance Payments” (as set forth below in Section 2) for a period of twelve (12) months following the occurrence of any one of the events set forth in (i), (ii) or (iii) below within one year following the closing of (A) the sale by the Company of all or substantially all of its assets, or (B) the merger or consolidation of the Company with or into another entity in a transaction where the shares of the Company’s capital stock outstanding immediately prior to the closing of such merger or consolidation represent or are converted into or exchanged for shares that represent less than a majority of the shares of capital stock of the resulting or surviving entity outstanding immediately after the closing of such merger or consolidation (each of the foregoing being referred to as “Business Event”):

(ii) you suffer a diminution in job responsibility or a reduction in compensation; or

(iii) the Company moves your place of employment more than 35 miles from Company’s current office location in Marlborough, Massachusetts.

Notwithstanding, this Paragraph 1, the issuance by the Company of its capital stock in an equity financing, either in a private or public transaction, shall not constitute a Business Event.

5. Nothing in this Agreement is intended, or shall be const rued, to restrict or otherwise limit EXACT’s right to terminate your employment with or without Cause and with or without notice. This letter is not a guarantee of continued employment, it being understood you are and continue to be employed at-will.

7. This Agreement sets forth the entire Agreement of the parties with respect to the subject matter hereof and may not be changed orally.

Please indicate your acceptance of this Agreement by signing the enclosed copy of this letter and returning it to me.

	Very truly yours,


	/s/ Don Hardison
	Don Hardison
	Chief Executive Officer


	/s/ Harry Wilcox
	Name: Harry Wilcox
	Title: Senior Vice President and Chief Financial Officer

EX-10.3 4 a04-11035_1ex10d3.htm EX-10.3

Exhibit 10.3

EXACT SCIENCES CORPORATION

Incentive Stock Option Agreement

Terms and Conditions

1. Grant Under Plan. This option is granted pursuant to and is governed by the Company’s 2000 Stock Option and Incentive Plan (the “Plan”) and, unless the context otherwise requires, terms used herein shall have the same meaning as in the Plan. Determinations made in connection with this option pursuant to the Plan shall be governed by the Plan as it exists on the Grant Date.

2. Grant as Incentive Stock Option. This option is intended to qualify as an incentive stock option under Section 422 of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (the “Code”).

3. Vesting of Option if Employment Continues. All of the Option Shares initially shall be unvested shares. For so long as the Employee remains continuously employed by the Company the Option Shares shall become vested according to the schedule set forth below and the Employee may exercise this option as to any vested shares:

Vesting Date		Number of Vested Shares

One year from the Vesting Start Date	-	25% of the Option Shares

On the 1^st day of each subsequent one month period following one year from the vesting start date.	-	2.083% of the Option Shares

Notwithstanding the foregoing, the Board may, in its discretion, accelerate the date that any installment of this option becomes exercisable. The foregoing rights are cumulative and (subject to Sections 4 or 5 hereof if the Employee ceases to be employed by the Company) may be exercised only before the date which is ten years from the date of this option grant.

4. Termination of Employment.

(a) Termination Other Than for Cause. If the Employee ceases to be employed by the Company, other than by reason of death or disability as defined in Section 5 or termination for Cause as defined in Section 4(c), no further installments of this option shall become exercisable, and this option shall expire (may no longer be

exercised) after the passage of three months from the Employee’s last day of employment, but in no event later than the scheduled expiration date. For purposes hereof, employment shall not be considered as having terminated during any leave of absence if such leave of absence has been approved in writing by the Company and if such written approval contractually obligates the Company to continue the employment of the Employee after the approved period of absence; in the event of such an approved leave of absence, vesting of this option shall be suspended (and the period of the leave of absence shall be added to all vesting dates) unless otherwise provided in the Company’s written approval of the leave of absence. For purposes hereof, employment shall include a consulting arrangement between the Employee and the Company that immediately follows termination of employment, but only if so stated in a written consulting agreement executed by the Company that specifically refers to this option. This option shall not be affected by any change of employment within or among the Company and its Subsidiaries so long as the Employee continuously remains an employee of the Company or any Subsidiary (as defined in the Plan).

(b) Termination for Cause. If the employment of the Employee is terminated for Cause (as defined in Section 4(c)), this option shall expire (that is, may no longer be exercised) upon the Employee’s receipt of written notice of such termination and shall thereafter not be exercisable to any extent whatsoever.

(c) Definition of Cause. “Cause” shall mean conduct involving one or more of the following: (i) the substantial and continuing failure of the Employee, after notice thereof, to render services to the Company in accordance with the terms or requirements of his or her employment; (ii) disloyalty, gross negligence, willful misconduct, dishonesty, fraud or breach of fiduciary duty to the Company; (iii) deliberate disregard of the rules or policies of the Company, or breach of an employment or other agreement with the Company, which results in direct or indirect loss, damage or injury to the Company; (iv) the unauthorized disclosure of any trade secret or confidential information of the Company; or (v) the commission of an act which constitutes unfair competition with the Company or which induces any customer or supplier to breach a contract with the Company.

5. Death; Disability.

(a) Death. If the Employee dies while in the employ of the Company, this option may be exercised, to the extent otherwise exercisable on the date of his or her death, by the Employee’s estate, personal representative or beneficiary to whom this option has been transferred pursuant to Section 9, only at any time within 180 days after the date of death, but not later than the scheduled expiration date.

(b) Disability. If the Employee ceases to be employed by the Company by reason of his or her disability, this option may be exercised, to the extent otherwise exercisable on the date of cessation of employment, only at any time within 180 days after such cessation of employment, but not later than the scheduled expiration date. For

purposes hereof, “disability” means “permanent and total disability” as defined in Section 22(e)(3) of the Code.

6. Partial Exercise. This option may be exercised in part at any time and from time to time within the above limits, except that this option may not be exercised for a fraction of a share.

7. Payment of Exercise Price.

(a) Payment Options. The exercise price shall be paid by one or any combination of the following forms of payment that are applicable to this option, as indicated on the cover page hereof:

(i) in cash, or by check payable to the order of the Company;

(ii) if the Common Stock is then traded on a national securities exchange or on the Nasdaq National Market (or successor trading system), delivery of an irrevocable and unconditional undertaking, satisfactory in form and substance to the Company, by a creditworthy broker to deliver promptly to the Company sufficient funds to pay the exercise price, or delivery by the Employee to the Company of a copy of irrevocable and unconditional instructions, satisfactory in form and substance to the Company, to a creditworthy broker to deliver promptly to the Company cash or a check sufficient to pay the exercise price;

(iii) subject to Section 7(b) below, if the Common Stock is then traded on a national securities exchange or on the Nasdaq National Market (or successor trading system), by delivery of shares of Common Stock owned by the Employee having a fair market value equal as of the date of exercise to the option price; or

(iv) any combination of (i), (ii) and (iii) above.

In the case of (iii) above, fair market value as of the date of exercise shall be determined as of the last business day for which such prices or quotes are available prior to the date of exercise and shall mean (x) the last reported sale price (on that date) of the Common Stock on the principal national securities exchange on which the Common Stock is traded, if the Common Stock is then traded on a national securities exchange; or (y) the last reported sale price (on that date) of the Common Stock on the Nasdaq National Market (or successor trading system), if the Common Stock is not then traded on a national securities exchange.

(b) Limitations on Payment by Delivery of Common Stock. If Section 7(a)(iii) is applicable, and if the Employee delivers Common Stock held by the Employee (“Old Stock”) to the Company in full or partial payment of the exercise price and the Old

Stock so delivered is subject to restrictions or limitations imposed by agreement between the Employee and the Company, an equivalent number of Option Shares shall be subject to all restrictions and limitations applicable to the Old Stock to the extent that the Employee paid for the Option Shares by delivery of Old Stock, in addition to any restrictions or limitations imposed by this Agreement. Notwithstanding the foregoing, the Employee may not pay any part of the exercise price hereof by transferring Common Stock to the Company unless such Common Stock has been owned by the Employee free of any substantial risk of forfeiture for at least six months.

8. Method of Exercising Option. Subject to the terms and conditions of this Agreement, this option may be exercised by written notice to the Company at its principal executive office, or to such transfer agent as the Company shall designate. Such notice shall state the election to exercise this option and the number of Option Shares for which it is being exercised and shall be signed by the person or persons so exercising this option. Such notice shall be accompanied by payment of the full purchase price of such shares, and the Company shall deliver a certificate or certificates representing such shares as soon as practicable after the notice shall be received. Such certificate or certificates shall be registered in the name of the person or persons so exercising this option (or, if this option shall be exercised by the Employee and if the Employee shall so request in the notice exercising this option, shall be registered in the name of the Employee and another person jointly, with right of survivorship). In the event this option shall be exercised, pursuant to Section 5 hereof, by any person or persons other than the Employee, such notice shall be accompanied by appropriate proof of the right of such person or persons to exercise this option.

9. Option Not Transferable. This option is not transferable or assignable except by will or by the laws of descent and distribution. During the Employee’s lifetime only the Employee can exercise this option.

10. No Obligation to Exercise Option. The grant and acceptance of this option imposes no obligation on the Employee to exercise it.

11. No Obligation to Continue Employment. Neither the Plan, this Agreement, nor the grant of this option imposes any obligation on the Company to continue the employment of the Employee.

12. No Rights as Stockholder until Exercise. The Employee shall have no rights as a stockholder with respect to the Option Shares until such time as the Employee has exercised this option by delivering a notice of exercise and has paid in full the purchase price for the shares so exercised in accordance with Section 8. Except as is expressly provided in the Plan with respect to certain changes in the capitalization of the Company, no adjustment shall be made for dividends or similar rights for which the record date is prior to such date of exercise.

13. Capital Changes and Business Successions. The Plan contains provisions covering the treatment of options in a number of contingencies such as stock splits and mergers. Provisions in the Plan for adjustment with respect to stock subject to options and the related

provisions with respect to successors to the business of the Company are hereby made applicable hereunder and are incorporated herein by reference.

14. Withholding Taxes. If the Company in its discretion determines that it is obligated to withhold any tax in connection with the exercise of this option, or in connection with the transfer of, or the lapse of restrictions on, any Common Stock or other property acquired pursuant to this option, the Employee hereby agrees that the Company may withhold from the Employee’s wages or other remuneration the appropriate amount of tax. At the discretion of the Company, the amount required to be withheld may be withheld in cash from such wages or other remuneration or in kind from the Common Stock or other property otherwise deliverable to the Employee on exercise of this option. The Employee further agrees that, if the Company does not withhold an amount from the Employee’s wages or other remuneration sufficient to satisfy the withholding obligation of the Company, the Employee will make reimbursement on demand, in cash, for the amount underwithheld.

15. Early Disposition. The Employee agrees to notify the Company in writing immediately after the Employee transfers any Option Shares, if such transfer occurs on or before the later of (a) the date that is two years after the date of this Agreement or (b) the date that is one year after the date on which the Employee acquired such Option Shares. The Employee also agrees to provide the Company with any information concerning any such transfer required by the Company for tax purposes.

16. Lock-up Agreement. The Employee agrees that in the event that the Company effects an underwritten public offering of Common Stock registered under the Securities Act, the Option Shares may not be sold, offered for sale or otherwise disposed of, directly or indirectly, without the prior written consent of the managing underwriter(s) of the offering, for such period of time after the execution of an underwriting agreement in connection with such offering that all of the Company’s then directors and executive officers agree to be similarly bound.

17. Provision of Documentation to Employee. By signing this Agreement the Employee acknowledges receipt of a copy of this Agreement and a copy of the Plan.

18. Compliance with Securities Act. The Company shall not be obligated to sell or issue any Common Stock or other securities pursuant to the exercise of this option unless the shares of Common Stock or other securities with respect to which this option is being exercised are at that time effectively registered or exempt from registration under the Securities Act of 1933, as amended, and applicable state securities laws. In the event shares or other securities shall be issued which shall not be so registered, the Employee hereby represents, warrants and agrees that he will receive such shares or other securities for investment and not with a view to their resale or distribution, and will execute an appropriate investment letter satisfactory to the Company and its counsel.

19. Amendment of Option. The Board may amend, modify or terminate this option including, but not limited to, substituting therefor another option of the same or a different type and changing the date of exercise or realization, provided that, the Employee’s consent to such

action shall be required unless the Board determines that the action, taking into account any related action, would not materially and adversely affect the Employee.

20. Miscellaneous.

(a) Notices. All notices hereunder shall be in writing and shall be deemed given when sent by certified or registered mail, postage prepaid, return receipt requested, if to the Employee, to the address set forth on the Cover Sheet or at the address shown on the records of the Company, and if to the Company, to the Company’s principal executive offices, attention of the Corporate Secretary.

(b) Entire Agreement. This Agreement constitutes the entire agreement between the parties relative to the subject matter hereof, and supersedes all proposals, written or oral, and all other communications between the parties relating to the subject matter of this Agreement.

(c) Fractional Shares. If this option becomes exercisable for a fraction of a share because of the adjustment provisions contained in the Plan, such fraction shall be rounded down to the nearest whole share.

(d) Severability. The invalidity, illegality or unenforceability of any provision of this Agreement shall in no way affect the validity, legality or enforceability of any other provision.

(e) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, subject to the limitations set forth in Section 9 hereof.

(f) Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Delaware, without giving effect to the principles of the conflicts of laws thereof.

EX-99.1 5 a04-11035_1ex99d1.htm EX-99.1

Exhibit 99.1

Press Release

DRAFT - NOT FOR IMMEDIATE RELEASE

	For further information:	Investor Relations and
	Media:	Corporate Communications:
	Kerry Beth Daly	Amy Hedison
	Fleishman-Hillard	EXACT Sciences
	P: (617) 267-8223	P: (508) 683-1252
	E: dalyk@fleishman.com	E: ahedison@exactsciences.com

EXACT SCIENCES APPOINTS HARRY W. WILCOX SENIOR
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER

Marlborough, Mass. – September 28, 2004 – EXACT Sciences Corporation (NASDAQ: EXAS) announced today that Harry W. Wilcox has been appointed Senior Vice President and Chief Financial Officer.

“We are delighted to have Harry join our senior management team at this important time in our Company’s development,” said Don M. Hardison, EXACT Sciences’ President and CEO. “Harry brings a wealth of business experience to EXACT Sciences that goes well beyond financial expertise and acumen. His familiarity with the life sciences sector, and the many business relationships he has built over the years will be important as we move our Company forward. Thus, in addition to his financial responsibilities, I expect that Harry will provide significant contributions to a number of strategic initiatives.”

Mr. Wilcox joins EXACT Sciences from Beacon BioPartners of Natick, Mass., where he was a partner. Prior to Beacon BioPartners, Mr. Wilcox was the Interim Chief Executive Officer at Biostratum, Inc., a North Carolina-based biotechnology company, and Executive Vice President, Chief of Finance and Corporate Development at Pyrosequencing AB, a Swedish life sciences tools company with U.S. operations based in Westborough, Mass. Mr. Wilcox also was the President and Chief Executive Officer of Cambridge NeuroScience, Inc. prior to its sale to CeNeS Pharmaceuticals, a founding partner of Highland Capital Partners, and worked at Cellcor, Inc. and Charles River Ventures in financial and business development capacities.

About EXACT Sciences Corporation

EXACT Sciences Corporation is a leader in rapidly applying genomics knowledge to develop effective, patient-friendly screening methods to detect cancer early, to assist physicians in saving patients’ lives. Its first commercial test, PreGen-Plus™, is used for screening colorectal cancer in the

average-risk population. Colorectal cancer, which is the most deadly cancer among non-smokers, is curable if detected early. Despite the availability of colorectal cancer screening and diagnostic tests for more than 20 years, the rate of early detection of colorectal cancer remains low, and deaths from colorectal cancer remain high. EXACT Sciences believes its genomics-based technologies will enable early detection of colorectal cancer so that more people can be effectively treated. Founded in 1995, EXACT Sciences is based in Marlborough, Mass. Detailed information on EXACT Sciences and PreGen-Plus can be found on the World Wide Web at www.exactsciences.com and www.pregenplus.com.

Certain statements made in this press release that are not based on historical information are express or implied forward-looking statements relating to, among other things, EXACT Sciences’ expectations concerning, among other things, its business outlook and the effectiveness and market acceptance of its technologies. These statements are neither promises nor guarantees, but are subject to a variety of risks and uncertainties, many of which are beyond EXACT Sciences’ control, and which could cause actual results to differ materially from those contemplated in these forward-looking statements. In particular, the risks and uncertainties include, among other things, the ability of EXACT Sciences to become profitable; its ability to license certain technologies or obtain raw materials for its technologies; the ability to convince Medicare and other third-party payors to provide adequate reimbursement for EXACT Sciences’ products and services; the ability to convince medical practitioners to order tests using EXACT Sciences’ technologies; the ability to increase the performance of the PreGen-Plus test; the inclusion of PreGen-Plus in cancer screening guidelines; the number of people who decide to be screened for colorectal cancer using EXACT Sciences’ technologies; competition; the possibility that other companies will develop and market novel or improved methods for detecting colorectal cancer; and the ability to raise additional capital on acceptable terms. Existing and prospective investors are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof. EXACT Sciences undertakes no obligation to update or revise the information contained in this press release, whether as a result of new information, future events or circumstances or otherwise. For additional disclosure regarding these and other risks faced by EXACT Sciences, see the disclosure contained in EXACT Sciences’ public filings with the Securities and Exchange Commission including, without limitation, its most recent Annual Report on Form 10-K and subsequent SEC filings.

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