EXHIBIT
10.45
RELEASE OF
CLAIMS AGREEMENT
RECITALS
This Release of Claims
Agreement (" Agreement ") is made by and between Bobby
Purkait ( "Employee" ) and Mentor Corporation ("
Company ") (collectively referred to as the " Parties
"):
WHEREAS, Employee was
employed by the Company;
WHEREAS, the Company and
Employee entered into an Employment Agreement, dated for reference
purposes as of July 22, 2004, relating to Employee's employment
with the Company;
WHEREAS, the Company granted
Employee options to purchase the Company's common stock (the "
Options ") under one or several of the Company's stock
option plans (the " Plans ") and each such Option is
evidenced by an option agreement executed by Employee and the
Company (the " Stock Option Agreements ");
WHEREAS, the Company has
elected to terminate the Employment Agreement in accordance with
Section 4.1.5 thereunder, effective as of March 25, 2005 (the "
Termination Date ");
WHEREAS, the Parties, and
each of them, wish to resolve any and all disputes, claims,
complaints, grievances, charges, actions, petitions and demands
that either party may have against the other, including, but not
limited to, any and all claims arising or in any way related to
Employee's employment with, or separation from, the
Company;
NOW THEREFORE, in
consideration of the promises made herein, the Parties hereby agree
as follows:
COVENANTS
1.
Consideration . Upon the Effective Date (as defined in
Section 24) of this Agreement, Employee will be entitled to the
following:
(a)
Base Salary . In accordance with Section 2 of the
Employment Agreement, the Company agrees to pay Employee the
remaining base salary (at the rate described in Section 3.1.1 of
the Employment Agreement) through May 31, 2005, to be paid in one
lump sum payment, less applicable withholdings, payable within
fifteen (15) days after the Effective Date.
(b)
Severance Pay . The Company agrees to pay Employee
severance pay in an amount equal to twenty-two (22) months' base
salary at the rate described in Section 3.1.1 of the Employment
Agreement. Said severance payment shall be paid within
fifteen (15) days after the Effective Date in one lump sum payment,
less applicable withholdings, of this Agreement.
(c)
Options . Pursuant to Sections 2 and 3.1.3 of the
Employment Agreement, any options previously granted to Employee
that were scheduled to vest prior to May 31, 2005 shall continue to
so vest until said date. Thereafter, no additional unvested
options shall continue to vest. Employee shall be entitled,
for a period of three months following May 31, 2005 (i.e., until
August 31, 2005), to exercise any previously vested options in
accordance with the terms of the Plans and the Stock Option
Agreements.
(d)
Cash Incentive Bonus . In accordance with
Sections 2 and 3.1.2 (including Attachment A) of the Employment
Agreement, the Company agrees to pay Employee thirty thousand
dollars ($30,000) for completion of Phase 1 Dosing Study, as well
as an additional sixty thousand dollars ($60,000), representing
payment for the remaining target milestones set forth in Attachment
A, to be paid in one lump sum payment, less applicable
withholdings, payable within fifteen (15) days after the Effective
Date.
(e)
Benefits . The Company will continue to provide
Employee with the benefits (or cash equivalents in lieu thereof)
described in Sections 3.3 and 3.4 of the Employment Agreement until
May 31, 2005, including but not limited to vacation accrual and
automobile allowance. In the event the Company elects to
provide cash equivalent compensation in lieu of providing any such
benefits, payment shall be made in one lump sum no later than June
15, 2005. After May 31, 2005, to the extent not otherwise
covered by a prior employer, the Company will reimburse the
premiums otherwise payable by Employee and his eligible dependents
for health, dental and vision benefits coverage for up to three (3)
months beginning on May 31, 2005, or until he becomes eligible for
group insurance benefits from another employer, whichever comes
first, provided Employee elected continuation coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"), within the time period prescribed under COBRA. If
Employee discontinues COBRA continuation coverage or elects
alternative coverage, a cash payment will not be provided in lieu
of the Company's payment of premiums above. The Company will
not reimburse Employee for any taxable income imputed to Employee
because the Company has paid Employee's COBRA premiums or those of
Employee's eligible dependents.
(f)
Unreimbursed Expenses . The Company will reimburse any
business expenses reasonably incurred in performing services for
the Company prior to the Termination Date.
(g)
Tax and Related Liabilities . Employee shall be solely
responsible for any and all tax and related liabilities which may
arise out of the payments or benefits provided under this
Agreement, and shall indemnify and hold harmless the Company from
and against any and all claims related thereto.
2.
Confidential Information and Company Property .
Employee will continue to maintain the confidentiality of all
confidential and proprietary information of the Company.
Employee will return all of the Company's property and confidential
and proprietary information in his possession to the Company on the
Effective Date of this Agreement. Employee shall submit his
Company laptop computer for reformatting by the Company, after
which the Company shall return said computer to Employee, who will
then be entitled to retain it. In addition, the Employee
shall be entitled to retain the cellular telephone provided by the
Company.
3.
Payment in Full . Employee acknowledges and represents
that the Company has paid all salary, wages, cash incentive bonuses
of any kind, including but not limited to target milestone payments
or any other bonuses, accrued vacation, milestone payments and any
and all other benefits due to Employee once the above noted
payments and benefits are received.
-2-
4.
Release of Claims . Employee agrees that the
foregoing consideration represents settlement in full of all
outstanding obligations owed to Employee by the Company and its
officers, managers, supervisors, agents and employees. In
consideration for the mutual covenants contained in this Agreement,
including but not limited to the severance compensation provided
hereunder, Employee 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 agrees 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 Employee 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 Employee's agreement
with the Company and the termination of that agreement;
(b)
any and all claims relating to, or arising from, Employee'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;
(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 Employee as a result of this Agreement;
and
(h)
any and all claims for attorneys' fees and costs.
Notwithstanding
the releases provided above, the Company agrees to indemnify
employee for all claims, losses, damages, and expenses, including
reasonable attorney's fees, arising from any good faith acts of
employee taken in the course and within the scope of his employment
with the Company prior to the Termination Date.
In the event
Employee applies for unemployment insurance benefits after May 31,
2005, the Com
