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Exhibit 10.31
SEVERANCE AND RELEASE AGREEMENT
This Severance and Release Agreement (this "AGREEMENT") is entered
into
by and between Eyetech Pharmaceuticals,
Inc. (the "COMPANY") and Douglas H.
Altschuler ("ALTSCHULER").
WHEREAS, Altschuler has been employed by the Company since May 2003
and
entered into an Employment Agreement, dated
as of August 25, 2003, with the
Company (the "OLD AGREEMENT");
WHEREAS, Altschuler has asked to resign, and the Company has agreed
to
accept such resignation and to terminate
the Old Agreement; and
WHEREAS, the Company and Altschuler wish to make arrangements
for
payments and other good and valuable
consideration as set forth in this
Agreement, in consideration of Altschuler's
agreement to comply with the
cooperation, non-solicitation and other
provisions set forth in this Agreement,
which consideration Altschuler hereby
acknowledges is sufficient consideration
for such provisions and are not
unreasonable or overly burdensome on Altschuler.
NOW, THEREFORE, in consideration of the mutual covenants and
promises
of the parties hereto, Altschuler and the
Company agree as follows:
1. SEVERANCE OF EMPLOYMENT.
(a) Altschuler and the Company agree that Altschuler's
employment with the Company and, except as
provided herein, the Old Agreement
will terminate as of March 18, 2005 (the
"TERMINATION DATE"). Effective as of
March 17, 2005, Altschuler also resigns
from all positions at the Company's
subsidiaries, including those set forth on
Schedule I hereto. Altschuler shall
execute such resignation letters as the
Company may reasonably request.
(b) Promptly following the Termination Date, Altschuler shall
be paid the allocable portion of his
current Base Salary of $275,000 through the
Termination Date, and any unused vacation
time accrued through the Termination
Date, and shall be entitled to elect
continuation of benefits under the
Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended ("COBRA"),
and the reimbursement of expenses through
the Termination Date in accordance
with the Company's policies.
(c) Upon effectiveness of this Agreement in accordance with
the provisions of Section 15(a)(iv),
Altschuler shall be entitled to receive
from the Company in the future the payments
and other benefits specified in
Section 2.
(d) All payments made to Altschuler by the Company hereunder
shall be subject to any applicable
withholding taxes.
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2. SEVERANCE BENEFITS.
(a) SEVERANCE PAYMENT. The Company shall pay Altschuler 12
monthly payments each equal in amount to
1/12th of his Base Salary of $275,000
as of the Termination Date, less applicable
state and federal withholdings.
(b) HEALTH INSURANCE. The Company shall, for a period of 12
months (or until comparable benefits
coverage becomes available to Altschuler,
if sooner), reimburse Altschuler (or pay
Altschuler directly, at the Company's
option) the costs associated with the
continuation of his and his dependents'
medical and dental benefits under COBRA as
in effect immediately prior to the
Termination Date. As of the first
anniversary of the Termination Date unless
terminated earlier in accordance with the
preceding sentence, Altschuler will be
solely responsible for all applicable COBRA
premiums.
(c) OPTIONS. The Company has previously granted Altschuler
options to purchase shares of the Company's
common stock as set forth in
Schedule II to this Agreement, which
Schedule also identifies the number of
shares subject to vested options as of the
Termination Date, including the
additional number of shares with respect to
which the Company has agreed to
accelerate vesting (or to allow the lapse
of applicable repurchase rights) to
March 17, 2005 (the "VESTED OPTIONS"). As
provided in the agreements pursuant to
which the Vested Options were issued and
subject to the terms of such
agreements, Altschuler shall be entitled to
exercise the Vested Options within
three months after the Termination Date.
Immediately following effectiveness of
this Agreement in accordance with Section
15(a)(iv), the Company shall (i)
deliver to Altschuler stock certificate No.
EYE0887 for 6,000 shares of common
stock that was previously issued in his
name, free of all repurchase
restrictions imposed by the Company, and
(ii) cancel all remaining unvested
options.
3. RELEASE AND WAIVER OF CLAIMS; COVENANT NOT TO SUE.
Altschuler hereby waives and releases and promises never to
assert any claims or causes of action,
whether or not now known to the greatest
extent of all applicable law, against the
Company or its predecessors,
successors, or past or present subsidiaries
or affiliated entities, officers,
directors, agents, employees and assigns,
with respect to any matter (without
limitation) arising out of or connected
with his employment with the Company or
the termination of that employment,
including without limitation, claims of
wrongful discharge, constructive discharge,
emotional distress, defamation,
invasion of privacy, fraud, breach of
contract, breach of the covenant of good
faith and fair dealing, any claims of
discrimination or harassment based on sex,
age, race, national origin, disability or
on any other basis and all common law
claims and all other laws and regulations
relating to employment, including
without limitation, all claims under Title
VII of the Civil Rights Act of 1964,
42 U.S.C. Section 2000e et seq., the Age
Discrimination in Employment Act, 29
U.S.C. Section 621 et seq., the Americans
With Disabilities Act of 1990, 42
U.S.C. Section 12101 et seq., the New York
Human Rights Law, N.Y. Exec. Law
Section 290 et seq., the New York Civil
Rights Law, N.Y. Civ. Rights Law Section
79-e et seq., the New York Equal Rights
Law, N.Y. Civ. Rights Law Section 40c et
seq., N.Y. Civ. Rights Law Section 47 et
seq. (New York rights of persons with
disabilities law), N.Y. Lab. Law Section
194 et seq. (New York equal pay law),
N.Y. Lab. Law Section 740 (New York
whistleblower protection law), New York City
Human
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Rights Law, N.Y.C. Admin. Code Section
8-101 et seq., all as amended; all claims
arising out of the Family and Medical Leave
Act, 29 U.S.C. Section 2601 et seq.,
the Fair Credit Reporting Act, 15 U.S.C.
Section 1681 et seq., and the Employee
Retirement Income Security Act of 1974
("ERISA"), 29 U.S.C. Section 1001 et
seq., all as amended. Further, Altschuler
hereby agrees not to sue the Company
or its predecessors, successors, or past or
present subsidiaries or affiliated
entities, officers, directors, agents,
employees and assigns, for any released
claim.
4. COOPERATION OBLIGATIONS.
(a) Promptly after the execution and delivery hereof,
Altschuler agrees to be available from time
to time to provide additional
information about the operations of the
Company to Morrison & Foerster LLP or
other counsel mutually acce
