|
EXHIBIT
10.2
EXHIBIT A TO SEPARATION
AND RELEASE OF CLAIMS AGREEMENT
MENTOR CORPORATION
LOREN L. McFARLAND
CONSULTING AGREEMENT
This Agreement is entered into as of October 27,
2007 by and between Mentor Corporation (the "Company") and Loren L.
McFarland ("Consultant") (collectively referred to as the
"Parties").
1.
Duties and Scope of Services .
(a)
Positions and Duties . As of the Effective Date as
defined below, Consultant will serve as a Consultant to the
Company. Consultant will report to the Chief Executive
Officer (the "CEO") of the Company. As an independent
contractor, Consultant will render such business and professional
services, in ways and at times as reasonably directed by the CEO,
which are consistent with his role as a consultant.
(b)
Obligations . The Consultant will render services to
the Company as may be requested from time to time that may include,
but not be limited to, assisting with the Company's credit
agreements, benefit plans, SEC and other regulatory filings
(domestic and international, including resignation as an officer
and/or director of all of the Company's subsidiaries), and
transition services relating to the Company's Finance
Department.
2.
Term of Agreement . This Agreement will have a term
commencing on November 12, 2007 (the "Effective Date") and ending
April 30, 2009 (the "Consulting Term"); provided however, the
Agreement may be renewed thereafter by written agreement of the
Parties.
3.
Compensation .
(a)
Total Cash Compensation . The Company will pay
Consultant the compensation set forth in Exhibit A for the
performance of services set forth therein.
(b)
Options and Restricted Stock . During the Consulting
Term, the Consultant's existing stock options, Performance Stock
Units and restricted stock grants will continue in accordance with
the Consultant's stock option agreements, Performance Stock Unit
Award Agreement (Executive), and restricted stock agreement
including, but not limited to, the continuation of vesting in
accordance with the current vesting schedules (collectively, the
"Award Agreements"). The Parties acknowledge that the
Consultant is and at all time during the Consulting Term shall
remain an Eligible Person, without interruption, under the Awards
Agreements as defined therein. Employee's Options, Restricted
Stock and Performance Stock Units will be exercisable in accordance
with the terms of the Plans and the applicable Award
Agreements. For the sake of clarity, Employee's Performance
Stock Units will continue to vest in accordance with Sections 8 and
3 of the Performance Stock Unit Agreement.
4.
Employee Benefits . Consultant will be ineligible to
participate in any of the Company employee benefit plans, policies,
and arrangements that are applicable to employees of the Company,
as such plans, policies, and arrangements may exist or be amended
from time to time.
5.
Expenses . The Company will reimburse Consultant for
all reasonable travel, entertainment, and other expenses incurred
by Consultant in the furtherance of the performance of Consultant's
duties hereunder, in accordance with the Company's expense
reimbursement policy (as applied to Company officers) as in effect
from time to time.
6.
Termination of Consulting .
(a)
Consultant and the Company acknowledge that this Agreement may be
terminated by the Company only for Gross Misconduct which means (i)
Consultant's willful failure to perform his assigned duties and
responsibilities reasonably assigned to him that are not corrected
within a fifteen (15) day correction period, after there has been
delivered to Consultant a written demand for performance from the
CEO which describes the basis for the belief of the CEO that
Consultant has not substantially performed his duties and provides
Consultant with fifteen (15) days to take corrective action; (ii)
any act of personal dishonesty taken by Consultant in connection
with his responsibilities as a consultant of the Company with the
intention or reasonable expectation that such may result in
substantial personal enrichment of Consultant; (iii) Consultant's
conviction of, or plea of nolo contendere to, a felony which the
Board reasonably believes has had or will have a material
detrimental effect on the Company's reputation or business, or (iv)
Consultant materially breaching Consultant's Confidential
Information Agreement (defined below), which breach is (if capable
of cure) not cured within fifteen (15) days after the Company gives
written notice to the Consultant of the breach.
(b)
In the event that Company appropriately terminates this Agreement
pursuant to Paragraph 6(a) above, or in the event that the
Consultant terminates this Agreement for any reason, the Consultant
shall be entitled only to (a) all Compensation accrued up to the
effective date of termination, (b) all vesting of options up to the
effective date of termination, as provided under the terms of the
applicable option agreements applicable to the Consultant, (c) all
vesting of restricted shares up to the effective date of
termination, as provided under the terms of the applicable
restricted stock agreements applicable to the Consultant and (d)
all vesting of stock units up to the effective date of termination,
as provided under the terms of the applicable Performance Stock
Unit Agreement applicable to the Consultant (e) all business
expenses required to reimbursed under the Company's expense
reimbursement policy to the Consultant with respect to business
expenses incurred prior to termination.
7.
Release of Claims . Employee agrees that all of the
foregoing consideration represents settlement in full of all
outstanding obligations owed to Employee by the Company and its
officers, directors, managers, supervisors, agents and employees
other than those obligations arising under this Agreement and the
Separation and Release Agreement, Awards Agreements, and Employee's
Indemnification Agreement. In consideration for
the mutual covenants contained in this Agreement, including but not
limited to the compensation provided hereunder, Consultant and the
Company, on behalf of themselves, and their respective heirs,
family members, executors, officers, directors, employees,
investors, shareholders, administrators, affiliates, divisions,
subsidiaries, predecessor and successor corporations, and assigns,
hereby fully and forever release each other and their respective
heirs, family members, executors, officers, directors, employees,
investors, shareholders, administrators, affiliates, divisions,
subsidiaries, predecessor and successor corporations and assigns,
from, and agree not to sue concerning, any claim, duty, obligation
or cause of action relating to any matters of any kind, whether
presently known or unknown, suspected or unsuspected, that
Consultant or Company may possess arising from any omissions, acts
or facts that have occurred up until and including the effective
Date including, without limitation:
(a)
any and all claims relating to or arising from Consultant's
employment relationship with the Company and the termination of
that relationship;
(b)
any and all claims relating to, or arising from, Consultant's right
to purchase, or actual purchase of shares of stock of the Company,
including, without limitation, any claims for fraud,
misrepresentation, breach of fiduciary duty, breach of duty under
applicable state corporate law, and securities fraud under any
state or federal law; provided, however that none of the foregoing
shall be construed to modify or waive Employee's rights under the
Award Agreements;
(c)
any and all claims under the law of any jurisdiction including, but
not limited to, wrongful discharge of employment, constructive
discharge from employment, termination in violation of public
policy, discrimination, harassment, retaliation, breach of
contract, both express and implied, breach of a covenant of good
faith and fair dealing, both express and implied; promissory
estoppel, negligent or intentional infliction of emotional
distress, negligent or intentional misrepresentation, negligent or
intentional interference with contract or prospective economic
advantage, unfair business practices, defamation, libel, slander,
negligence, personal injury, assault, battery, invasion of privacy,
false imprisonment, and conversion;
(d)
any and all claims for violation of any federal, state or municipal
statute, including, but not limited to, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act of 1967, the Americans with
Disabilities Act of 1990, the Fair Labor Standards Act, the
Employee Retirement Income Security Act of 1974, The Worker
Adjustment and Retraining Notification Act, the Older Workers
Benefit Protection Act; the California Fair Employment and Housing
Act, and the California Labor Code, including, but not limited to
Labor Code sections 1400-1408;
(e)
any and all claims for violation of the federal, or any state,
constitution;
(f)
any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination;
(g)
any claim for any loss, cost, damage, or expense arising out of any
dispute over the non-withholding or other tax treatment of any of
the proceeds received by Consultant as a result of this Agreement;
and
(h)
any and all claims for attorneys' fees and costs.
The Company and Consultant agree that
the release set forth in this section shall be an
|
