**Exhibit 10.8****EMPLOYMENT AGREEMENT**This Employment Agreement, effective as of November 13, 2007, is by and between MENTORCorporation (“COMPANY”), with its executive offices at 201 Mentor Drive, Santa Barbara, California93111, and MICHAEL O’NEILL (“EMPLOYEE.”) Effective as of December 21, 2007, the Agreement isamended and restated in its entirety.**RECITALS**COMPANY is in the business of manufacturing and selling medical devices and related products.EMPLOYEE has experience in this business and possesses valuable skills and experience, which willbe used in advancing COMPANY’s interests. EMPLOYEE is willing to be engaged by COMPANY and COMPANYis willing to engage EMPLOYEE in an executive capacity responsible for ALL EXECUTIVE ANDADMINISTRATIVE functions of COMPANY, upon the terms and conditions set forth in this Agreement.**AGREEMENT**EMPLOYEE and COMPANY, intending to be legally bound, agree as follows:1. SERVICES1.1 General Services.1.1.1 Company shall employ EMPLOYEE as CHIEF FINANCIAL OFFICER (CFO). EMPLOYEE shall have suchduties, authorities and responsibilities commensurate with the duties, authorities andresponsibilities of persons in similarly sized companies and such duties and responsibilities asthe Board of Directors of the COMPANY (the “Board”) shall designate that are consistent with theEMPLOYEE’s position as CHIEF FINANCIAL OFFICER of the COMPANY. To the extent that they do notmaterially reduce the scope of the responsibilities described above, EMPLOYEE’s duties may changefrom time to time on reasonable notice, based on the needs of COMPANY and EMPLOYEE’s skills asdetermined by COMPANY. These duties shall hereinafter be referred to as “Services.” EMPLOYEEshall report directly to the President/CEO of the COMPANY or, from time to time, to a designee ofthe President/CEO, provided that (i) EMPLOYEE’s Services, as described above, remain materiallyunchanged and (ii) the change reporting structure is consistent with reporting and organizationalstructures that exist from time to time in similarly sized companies.1.1.2 In the event that EMPLOYEE shall from time to time serve COMPANY as a director or shallserve in any other office during the term of this Agreement; EMPLOYEE shall serve in suchcapacities without further compensation.1.1.3 EMPLOYEE shall devote his entire working time, attention, and energies to the businessof COMPANY, and shall not, during the term of this Agreement, be engaged in any other businessactivity whether or not such business activity is pursued for gain, profit or other pecuniaryadvantage, without the prior written consent of the Board of Directors of COMPANY. This shall notbe construed as preventing EMPLOYEE from investing his assets in a form or manner that does notrequire any services on the part of EMPLOYEE in the operation or affairs of the entities in whichsuch investments are made, or from engaging in such civic, charitable, religious, or politicalactivities that do not interfere with the performance of EMPLOYEE’s duties hereunder.1.2 Best Abilities. EMPLOYEE shall serve COMPANY faithfully and to the best ofEMPLOYEE’s ability. EMPLOYEE shall use EMPLOYEE’s best abilities to perform the Services.Employee shall act at all times according to what EMPLOYEE reasonably believes is in the bestinterests of COMPANY.1.3 Corporate Authority. EMPLOYEE, as an executive officer, shall comply with alllaws and regulations applicable to EMPLOYEE as a result of this Agreement, including, but notlimited to, the Securities Act of 1933 and Securities Act of 1934. Prior to the execution of thisAgreement, EMPLOYEE has received and reviewed COMPANY’s Policies and Procedures and COMPANY’sEmployee Handbook. EMPLOYEE shallcomply with COMPANY’s Policies and Procedures, and practices now in effect or as later amendedor adopted by COMPANY, as required of similarly-situated executives of COMPANY.
 
 

 
2. TERMThis Agreement shall commence upon the execution of this Agreement (the “Effective Date”) andshall have an initial term of three (3) years unless terminated as provided in Section 4 of thisAgreement. On the third anniversary of the Effective Date, this Agreement automatically will renewfor an additional three-year term, unless either party provides the other party with written noticeon non-renewal at least 120 days prior to the date of the automatic renewal. In the event theCOMPAY provides written notice of non-renewal to the EMPLOYEE as provided in the precedingsentence, then EMPLOYEE shall be entitled to the payments described in Section 4.2.5 below as ofthe date of the expiration of this Agreement.3. COMPENSATION AND BENEFITS3.1 Compensation. EMPLOYEE’s total compensation consists of base salary, bonuspotential, stock options, and medical and other benefits generally provided to employees ofCOMPANY. Any compensation paid to EMPLOYEE shall be pursuant to COMPANY’s policies and practicesfor exempt employees and shall be subject to all applicable laws and requirements regarding thewithholding of federal, state and/or local taxes. Compensation provided in this Agreement is fullpayment for Services and EMPLOYEE shall receive no additional compensation for extraordinaryservices unless otherwise authorized. EMPLOYEE’s entire compensation package will be reviewedannually by the Compensation Committee of the Board of Directors, a practice which is consistentwith COMPANY’s Executive Compensation Program.3.1.1 Base Compensation. COMPANY agrees to pay EMPLOYEE an annualized base salary ofThree Hundred Seventy-Five Thousand Dollars ($375,000.) less applicable withholdings, payable inequal installments no less frequently than semi-monthly.3.1.2 Cash Incentive Bonus. EMPLOYEE shall be eligible for a cash incentive bonus ofup to Seventy-Five (75) Percent of EMPLOYEE’s annual base salary, for achievement of target-levelperformance, and a maximum bonus of not less than Ninety-Nine (99) Percent of EMPLOYEE’s basesalary for achievement of extraordinary performance thereunder, and subject to approval byCOMPANY’s **Compensation Committee of the Board**. Any cash incentive bonus shall accrue and becomepayable to EMPLOYEE only if EMPLOYEE is employed with COMPANY on the last day of the fiscal yearfor which the cash incentive bonus is calculated.3.1.3 Stock Options/Equity Grants. Based upon satisfactory performance, under thePlan, COMPANY expects that EMPLOYEE will qualify for grants of options to acquire common stock ofCOMPANY subject to determination by the Board of Directors, of an amount which is consistent withCOMPANY’s Executive Compensation Program. Any such grants shall also be subject to performanceconsiderations as well as the determination of the Board of Directors.3.2 Business Expenses. COMPANY shall reimburse EMPLOYEE for business expensesreasonably incurred in performing Services according to COMPANY’s Expense Reimbursement Policy.3.3 Additional Benefits. COMPANY shall provide EMPLOYEE those additional benefitsnormally granted by COMPANY to its employees subject to eligibility requirements applicable to eachbenefit. COMPANY has no obligation to provide any other benefits unless provided for in thisAgreement. Currently COMPANY provides major medical, dental, life, salary continuation, long termdisability benefits and eligibility to participate in COMPANY’s 401(k) plan.3.4 Vacation. Employee shall accrue vacation equal to TWENTY (20) days per year, atthe rate of approximately 1.67 days per month. The time or times for such vacation shall beselected by EMPLOYEE and approved by the President and Chief Executive Officer of COMPANY.
 
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4. TERMINATION4.1 Circumstances Of Termination. This Agreement and the employment relationshipbetween COMPANY and EMPLOYEE may be terminated as follows:4.1.1 Death. This Agreement shall terminate upon EMPLOYEE’s death, effective as ofthe date of EMPLOYEE’s death.4.1.2 Disability. COMPANY may, at its option, either suspend compensation payments orterminate this Agreement due to EMPLOYEE’s Disability if EMPLOYEE is incapable, even withreasonable accommodation by COMPANY, of performing the Services because of accident, injury, orphysical or mental illness for ONE HUNDRED EIGHTY (180) consecutive days, or is unable or shallhave failed to perform the Services for a total period of ONE HUNDRED EIGHTY (180) within a TWELVE(12) month period, regardless of whether such days are consecutive. If COMPANY suspendscompensation payments because of EMPLOYEE’s Disability, COMPANY shall resume compensation paymentswhen EMPLOYEE resumes performance of the Services. If COMPANY elects to terminate this Agreementdue to EMPLOYEE’s Disability, it must first give EMPLOYEE TEN (10) WORKING days advance writtennotice.4.1.3 Discontinuance Of Business. If COMPANY discontinues operating its business,this Agreement shall terminate as of the last day of the month on which COMPANY ceases its entireoperations with the same effect as if that last date were originally established as terminationdate of this Agreement.4.1.4 For Cause. COMPANY may terminate this Agreement without advance notice forCause. For the purpose of this Agreement, “Cause” shall mean any failure to comply in any materialrespect with this Agreement or any Agreement incorporated herein; personal or professionalmisconduct by EMPLOYEE (including, but not limited to, criminal activity or gross or willfulneglect of duty); breach of EMPLOYEE’s fiduciary duty to the COMPANY; conduct which threatenspublic health or safety, or threatens to do immediate or substantial harm to COMPANY’s business orreputation; or any other misconduct, deficiency, failure of performance, breach or default,reasonably capable of being remedied or corrected by EMPLOYEE. To the extent that a breachpursuant to this Section 4.1.4 is curable by EMPLOYEE without harm to COMPANY and/or it’sreputation, COMPANY shall, instead of immediately terminating EMPLOYEE pursuant to this Agreement,provide EMPLOYEE with notice of such breach, specifying the actions required to cure such breach,and EMPLOYEE shall have ten (10) days to cure such breach by performing the actions so specified.If EMPLOYEE fails to cure such breach within the ten (10) day period, COMPANY may terminate thisAgreement without further notice. COMPANY’s exercise of its right to terminate under this sectionshall be without prejudice to any other remedy to which COMPANY may be entitled at law, in equity,or under this Agreement.4.1.5 Resignation by EMPLOYEE for Good Reason. This Agreement and employmentrelationship is terminable by either party, for convenience, with or without cause, including butnot limited to resignation by EMPLOYEE for Good Reason, at any time upon THIRTY (30) days’ advancewritten notice to the other party. For purposes of this Agreement, “Good Reason” shall mean theoccurrence of any of the following without EMPLOYEE’s express written consent: (i) a significantreduction of EMPLOYEE’s material duties, position, or responsibilities as provided in thisAgreement, or the removal of EMPLOYEE from the position, duties, and responsibilities contemplatedby this Agreement; (ii) a material reduction in Base Compensation or Cash Incentive Bonus otherthan a one-time reduction of not more than 10% that also is applied to substantially all othersenior executives at the COMPANY; (iii) EMPLOYEE must perform a significant portion of his dutiesat a location more than 50 miles from COMPANY headquarters; or (iv) COMPANY headquarters arerelocated more than 50 miles from the current location in Santa Barbara, California.4.1.6 Change of Control. If employment is terminated within TWELVE (12) months afterthe occurrence of any of the events described as a Change of Control as defined under theprovisions of the applicable equity or other long-term incentive plan in effect at the time of suchChange of Control, EMPLOYEE shall be entitled to severance compensation pursuant to Sections4.2.6(i) through 4.2.6(v).
 
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4.2 EMPLOYEE’s Rights Upon Termination4.2.1 Death. Upon termination of this Agreement because of death of EMPLOYEE pursuantto Section 4.1.1 above, COMPANY shall have no further obligation to EMPLOYEE under the Agreement,except that COMPANY shall (i) distribute to EMPLOYEE’s estate or designated beneficiary any unpaidcompensation and reimbursable expenses, less applicable withholdings, owed to EMPLOYEE prior to thedate of EMPLOYEE’s death, and (ii) administer the benefits available to EMPLOYEE’s estate ordesignated beneficiary upon death of EMPLOYEE under the COMPANY’s applicable benefit and incentiveplans.4.2.2 Disability. Upon termination of this Agreement because of Disability ofEMPLOYEE pursuant to Sections 4.1.2 above, COMPANY shall have no further obligation to EMPLOYEEunder the Agreement except to distribute to EMPLOYEE’s estate or designated beneficiary any unpaidcompensation and reimbursable expenses, less applicable withholdings, owed to EMPLOYEE prior to thedate of EMPLOYEE’s termination due to Disability.4.2.3 Discontinuance Of Business. Upon termination of this Agreement because ofdiscontinuation of COMPANY’s business pursuant to Section 4.1.3, COMPANY shall have no furtherobligation to EMPLOYEE under the Agreement except to distribute to EMPLOYEE any unpaid compensationand reimbursable expenses, less applicable withholdings, owed to EMPLOYEE prior to the date oftermination of this Agreement.4.2.4 Voluntary Termination Without Good Reason; Termination With Cause. Uponvoluntary termination of EMPLOYEE’s employment by EMPLOYEE without Good Reason or termination ofEMPLOYEE’s employment for Cause pursuant to Section 4.1.4, COMPANY shall have no further obligationto EMPLOYEE under this Agreement except to distribute to EMPLOYEE:(i) Any compensation and reimbursable expenses owed to EMPLOYEE by COMPANY through thetermination date, less applicable withholdings; and(ii) Severance compensation as provided for in COMPANY’s Severance Policy, if any, lessapplicable withholdings.4.2.5 Termination Without Cause; Resignation for Good Reason; Non-renewal of Agreement byCompany. Upon termination of EMPLOYEE’s employment by COMPANY without Cause pursuant toSection 4.1.5, or if EMPLOYEE terminates this Agreement at any time for Good Reason, or if COMPANYdoes not renew the term of the Agreement as provided in Section 2 above, then Company shall have nofurther obligation to EMPLOYEE under this Agreement except to distribute to EMPLOYEE:(i) Any compensation then due EMPLOYEE in accordance with Sections 3.1.1 and 3.1.2, andreimbursable expenses owed by COMPANY to EMPLOYEE through the termination date, less applicablewithholdings; and(ii) Reimbursement of full COBRA premium for TWENTY-FOUR (24) months following termination.Should EMPLOYEE discontinue COBRA coverage or elect alternative coverage, a cash payment will notbe provided in lieu of payment of premium;(iii) A pro-rated amount share of the Cash Incentive Bonus that would be due to EMPLOYEE ifEMPLOYEE had remained employed with COMPANY through the last day of the fiscal year for whichand/or any other applicable bonus or compensation program as approved by the Board of Directors;and(iv) Severance compensation totaling TWENTY-FOUR (24) months base pay, determined atEMPLOYEE’s then-current rate of base pay; provided, however, that EMPLOYEE may elect to accept alesser amount of severance than stipulated if EMPLOYEE deems it beneficial to him/her in light ofvarious income and excise tax considerations. In consideration for this severance compensation,EMPLOYEE, on behalf of himself, his agents, heirs, executors, administrators, and assigns,expressly releases and forever discharges COMPANY and its successors and assigns, and all of itsrespective agents, directors, officers, partners, employees,
 
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representatives, insurers, attorneys, parent companies, subsidiaries, affiliates, and jointventures, and each of them, from any and all claims based upon acts or events that occurred on orbefore the date on which EMPLOYEE accepts the severance compensation, including any claim arisingunder any state or federal statute or common law, including, but not limited to, Title VII of theCivil Rights Act of 1964, 42 U.S.C. “ 2000e, et seq., the Americans with Disabilities Act,42 U.S.C. “ 12101, et seq., the Age Discrimination in Employment Act, 29 U.S.C. “ 623,et. seq., the Worker Adjustment and Retraining Notification Act, 29 U.S.C. “ 2101, et.seq., and the California Fair Employment and Housing Act, Cal. Gov’t Code “12940, etseq. EMPLOYEE acknowledges that he is familiar with section 1542 of the California Civil Code,which reads as follows:A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TOEXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLYAFFECTED HIS SETTLEMENT WITH THE DEBTOR.EMPLOYEE expressly acknowledges and agrees that he is releasing all known and unknown claims,and that he is waiving all rights he has or may have under Civil Code Section 1542 or under anyother statute or common law principle of similar effect. EMPLOYEE acknowledges that the benefitshe is receiving in exchange for this Release are more than the benefits to which he otherwise wouldhave been entitled, and that such benefits constitute valid and adequate consideration for thisRelease. EMPLOYEE further acknowledges that he has read this Release, understands all of itsterms, and has consulted with counsel of his choosing before signing this Agreement.Severance compensation pursuant to this paragraph shall be in lieu of any other severancebenefit to which EMPLOYEE would otherwise be entitled, under either any other provision to thisAgreement or any COMPANY policies in effect on the date of execution of this Agreement. During thefirst six (6) months after termination, EMPLOYEE’s severance compensation shall accrue, payable inone lump sum payment, less applicable withholdings, on the seventh month after termination, subjectto the Internal Revenue Service guidance providing that the imposition of tax under InternalRevenue Code Section 409A does not apply to such payment.4.2.6 Termination Due to Change of Control. If employment is terminated withinTWELVE (12) months after any of the events delineated in Section 4.1.6 of this Agreement (“Changeof Control”), COMPANY shall have no further obligation to EMPLOYEE under this Agreement except todistribute to EMPLOYEE:(i) Any compensation then due EMPLOYEE in accordance with Sections 3.1.1 and reimbursableexpenses owed by COMPANY to EMPLOYEE through the termination date, less applicable withholdings;and(ii) A ONE HUNDRED PERCENT (100%) of the Cash Incentive Bonus that would be due to EMPLOYEE ifEMPLOYEE had remained employed with COMPANY through the last day of the fiscal year for which thecash incentive bonus is calculated, less applicable withholdings and/or other applicable bonus orcompensation program as approved by the Board of Directors; and(iii) Any options awarded and pursuant to the Long-Term Incentive Plan applicable toEMPLOYEE’s option award(s); and(iv) Reimbursement of full COBRA premium for TWENTY-FOUR (24) months following termination.Should EMPLOYEE discontinue COBRA coverage or elect alternative coverage, a cash payment will notbe provided in lieu of payment of premium; and(v) Severance compensation totaling TWENTY-FOUR (24) months base pay, determined at EMPLOYEE’sthen-current rate of base pay; provided, however, that EMPLOYEE may elect to accept a lesser amountof severance than stipulated if EMPLOYEE deems it beneficial to him/her in light of various incomeand excise tax considerations. In consideration for this severance compensation, EMPLOYEE, onbehalf of himself, his agents, heirs, executors, administrators, and assigns, expressly releasesand forever discharges COMPANY and its successors and assigns, and all of its respective agents,directors, officers, partners, employees, representatives, insurers, attorneys, parent companies,subsidiaries, affiliates, and joint ventures, and each of them,
 
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from any and all claims based upon acts or events that occurred on or before the date on whichEMPLOYEE accepts the severance compensation, including any claim arising under any state or federalstatute or common law, including, but not limited to, Title VII of the Civil Rights Act of 1964, 42U.S.C. “ 2000e, et seq., the Americans with Disabilities Act, 42 U.S.C. “ 12101, etseq., the Age Discrimination in Employment Act, 29 U.S.C. “ 623, et seq., the WorkerAdjustment and Retraining Notification Act, 29 U.S.C. “ 2101, et seq., and the California FairEmployment and Housing Act, Cal. Gov’t Code “ 12940, et seq. EMPLOYEE acknowledges that heis familiar with section 1542 of the California Civil Code, which reads as follows:A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TOEXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLYAFFECTED HIS SETTLEMENT WITH THE DEBTOR.EMPLOYEE expressly acknowledges and agrees that he is releasing all known and unknown claims,and that he is waiving all rights he has or may have under Civil Code Section 1542 or under anyother statute or common law principle of similar effect. EMPLOYEE acknowledges that the benefitshe is receiving in exchange for this Release are more than the benefits to which he otherwise wouldhave been entitled, and that such benefits constitute valid and adequate consideration for thisRelease. EMPLOYEE further acknowledges that he has read this Release, understands all of itsterms, and has consulted with counsel of his choosing before signing this Agreement.Severance compensation pursuant to this paragraph shall be in lieu of any other severancebenefit to which EMPLOYEE would otherwise be entitled, either under any provision to this Agreementor any COMPANY policies in effect on the date of execution of this Agreement. Severancecompensation shall be paid upon termination of EMPLOYEE’s employment and in one lump sum payment atthe date of termination, less applicable withholdings.5. REPRESENTATIONS AND WARRANTIES5.1 Representations of EMPLOYEE. EMPLOYEE represents and warrants that EMPLOYEE hasall right, power, authority and capacity, and is free to enter into this Agreement; that by doingso, EMPLOYEE will not violate or interfere with the rights of any other person or entity; and thatEMPLOYEE is not subject to any contract, understanding or obligation that will or might prevent,interfere with or impair the performance of this Agreement by EMPLOYEE. EMPLOYEE shall indemnifyand hold COMPANY harmless with respect to any losses, liabilities, demands, claims, fees, expenses,damages and costs (including attorneys’ fees and court costs) resulting from or arising out of anyclaim or action based upon EMPLOYEE’s entering into this Agreement.5.2 Representations of COMPANY. COMPANY represents and warrants that it has allright, power and authority, without the consent of any other person, to execute and deliver, andperform its obligations under, this Agreement. All corporate and other actions required to betaken by COMPANY to authorize the execution, delivery and performance of this Agreement and theconsummation of all transactions contemplated hereby have been duly and properly taken. ThisAgreement is the lawful, valid and legally binding obligation of COMPANY enforceable in accordancewith its terms.5.3 Materiality of Representations. The representations, warranties and covenants setforth in this Agreement shall be deemed to be material and to have been relied upon by the partieshereto.6. COVENANTS6.1 Nondisclosure and Invention Assignment. EMPLOYEE acknowledges that, as a resultof performing the Services, EMPLOYEE shall have access to confidential and sensitive informationconcerning COMPANY’s business including, but not limited to, their business operations, sales andmarketing data, and manufacturing processes. EMPLOYEE also acknowledges that in the course ofperforming the Services, EMPLOYEE may develop new product ideas or inventions as a result ofCOMPANY’s information. Accordingly, to preserve COMPANY’s confidential information and to assureit the full benefit of that information, EMPLOYEE shall, as a condition of employment with COMPANY,execute COMPANY’s standard form of Employee Confidentiality Agreement attached hereto as Exhibit A,and execute updated versions of the Employee Confidentiality Agreement as it may be modified fromtime to time by COMPANY and as may be required ofsimilarly-situated executives of COMPANY. The Employee Confidentiality Agreement isincorporated herein by this reference. EMPLOYEE’s obligations under the Employee ConfidentialityAgreement continue beyond the termination of this Agreement.
 
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6.2 Covenant Not to Compete. In addition to the provisions of the EmployeeConfidentiality Agreement, EMPLOYEE shall abide by the following covenant not to compete ifCOMPANY, at its option upon the termination of this Agreement (regardless of the reason for thetermination), exercises this Covenant Not to Compete. COMPANY shall notify EMPLOYEE within ten(10) days of termination of this Agreement of its intention to exercise this option and make anadditional payment to EMPLOYEE of six (6) months’ base pay determined at EMPLOYEE’s last rate ofpay with COMPANY. EMPLOYEE agrees that for a period of one (1) year following the termination ofthis Agreement, he shall not directly or indirectly for EMPLOYEE, or as a member of a partnership,or as an officer, director, stockholder, employee, or representative of any other entity orindividual, engage, directly or indirectly, in any business activity which is the same or similarto work engaged in by EMPLOYEE on behalf of COMPANY within the same geographic territory asEMPLOYEE’s work for COMPANY and which is directly competitive with the business conducted or toEMPLOYEE’s knowledge, contemplated by COMPANY at the time of termination of this Agreement, asdefined in the Employee Confidentiality Agreement incorporated into this Agreement by reference.EMPLOYEE may accept employment with an entity competing with COMPANY only if the business of thatentity is diversified and EMPLOYEE is employed solely with respect to a separately-managed andseparately-operated part of that entity’s business that does not compete with COMPANY. Prior toaccepting such employment, EMPLOYEE and the prospective employer entity shall provide COMPANY withwritten assurances reasonably satisfactory to COMPANY that EMPLOYEE will not render servicesdirectly or indirectly to any part of that entity’s business that competes with the business ofCOMPANY.6.3 Covenant to Deliver Records. All memoranda, notes, records and other documentsmade or compiled by EMPLOYEE, or made available to EMPLOYEE during the term of this Agreementconcerning the business of COMPANY, shall be and remain COMPANY’s property and shall be deliveredto COMPANY upon the termination of this Agreement or at any other time on request.6.4 Covenant Not To Recruit. EMPLOYEE shall not, during the term of this Agreementand for a period of one (1) year following termination of this Agreement, directly or indirectly,either on EMPLOYEE’s own behalf, or on behalf of any other individual or entity, solicit, interferewith, induce (or attempt to induce) or endeavor to entice away any employee associated with COMPANYto become affiliated with him or any other individual or entity.7. CERTAIN RIGHTS OF COMPANY7.1 Announcement. COMPANY shall have the right to make public announcementsconcerning the execution of this Agreement and certain terms thereof.7.2 Use of Name, Likeness and Biography. COMPANY shall have the right (but not theobligation) to use, publish and broadcast, and to authorize others to do so, the name, approvedlikeness and approved biographical material of EMPLOYEE to advertise, publicize and promote thebusiness of COMPANY and its affiliates, but not for the purposes of direct endorsement withoutEMPLOYEE’s consent. An “approved likeness” and “approved biographical material” shall be,respectively, any photograph or other depiction of EMPLOYEE, or any biographical information orlife story concerning the professional career of EMPLOYEE.7.3 Right to Insure. COMPANY shall have the right to secure in its own name, orotherwise, and at its own expense, life, health, accident or other insurance covering EMPLOYEE, andEMPLOYEE shall have no right, title or interest in and to such insurance. EMPLOYEE shall assistCOMPANY in procuring such insurance by submitting to examinations and by signing such applicationsand other instruments as may be required by the insurance carriers to which application is made forany such insurance.
 
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8. ASSIGNMENTNeither party may assign or otherwise dispose of its rights or obligations under thisAgreement without the prior written consent of the other party except as provided in this Section.COMPANY may assign and transfer this Agreement, or its interest in this Agreement, to any affiliateof COMPANY or to any entity that is a party to a merger, reorganization, or consolidation withCOMPANY, or to a subsidiary of COMPANY, or to any entity that acquires substantially all of theassets of COMPANY or of any division with respect to which EMPLOYEE is providing services(providing such assignee assumes COMPANY’s obligations under this Agreement). EMPLOYEE shall, ifrequested by COMPANY, perform EMPLOYEE’s duties and Services, as specified in this Agreement, forthe benefit of any subsidiary or other affiliate of COMPANY. Upon assignment, acquisition, merger,consolidation or reorganization, the term “COMPANY” as used herein shall be deemed to refer to suchassignee or successor entity. EMPLOYEE shall not have the right to assign EMPLOYEE’s interest inthis Agreement, any rights under this Agreement, or any duties imposed under this Agreement, norshall EMPLOYEE or his spouse, heirs, beneficiaries, executors or administrators have the right topledge, hypothecate or otherwise encumber EMPLOYEE’s right to receive compensation hereunderwithout the express written consent of COMPANY.9. RESOLUTION OF DISPUTESIn the event of any dispute arising out of or in connection with this Agreement or in any wayrelating to the employment of EMPLOYEE which leads to the filing of a lawsuit, the parties agreethat venue and jurisdiction shall be in Santa Barbara County, California. The prevailing party inany such litigation shall be entitled to an award of costs and reasonable attorneys’ fees to bepaid by the losing party.10. GENERAL PROVISIONS10.1 Notices. Notice under this Agreement shall be sufficient only if personallydelivered by a major commercial paid delivery courier service or mailed by certified or registeredmail (return receipt requested and postage pre-paid) to the other party at its address set forth inthe signature block below or to such other address as may be designated by either party in writing**(or in the case of EMPLOYEE, the then current address in COMPANY’s employment records).**If notreceived sooner, notices by mail shall be deemed received five (5) days after deposit in the UnitedStates mail.10.2 Agreement Controls. Unless otherwise provided for in this Agreement, **the offerletter, sent to EMPLOYEE by COMPANY and dated September 23, 2007, and**the COMPANY’s policies,procedures and practices shall govern the relationship between EMPLOYEE and COMPANY. If, however,any of COMPANY’s policies, procedures and/or practices **and/or any provisions of the offer letter**conflict with this Agreement (together with any amendments hereto), this Agreement (and anyamendments hereto) shall control.10.3 Amendment and Waiver. Any provision of this Agreement may be amended or modifiedand the observance of any provision may be waived (either retroactively or prospectively) only bywritten consent of the parties. Either party’s failure to enforce any provision of this Agreementshall not be construed as a waiver of that party’s right to enforce such provision.10.4 Governing Law. This Agreement and the performance hereunder shall be interpretedunder the substantive laws of the State of California.10.5 Force Majeure. Either party shall be temporarily excused from performing underthis Agreement if any force majeure or other occurrence beyond the reasonable control of eitherparty makes such performance impossible, except a Disability as defined in this Agreement, providedthat the party subject to the force majeure provides notice of such force majeure at the firstreasonable opportunity. Under such circumstances, performance under this Agreement which relatedto the delay shall be suspended for the duration of the delay provided the delayed party shallresume performance of its obligations with due diligence once the delaying event subsides. In caseof any such suspension, the parties shall use their best efforts to overcome the cause and effectof such suspension.
 
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10.6 Remedies. EMPLOYEE acknowledges that because of the nature of COMPANY’sbusiness, and the fact that the services to be performed by EMPLOYEE pursuant to this Agreement areof a special, unique, unusual, extraordinary, and intellectual character which give them a peculiarvalue, a breach of this Agreement shall cause substantial injury to COMPANY for which money damagescannot reasonably be ascertained and for which money damages would be inadequate. EMPLOYEEtherefore agrees that COMPANY shall have the right to obtain injunctive relief, including the rightto have the provisions of this Agreement specifically enforced by any court having equityjurisdiction, in addition to any other remedies that COMPANY may have.10.7 Severability. If any term, provision, covenant, paragraph, or condition of thisAgreement is held to be invalid, illegal, or unenforceable by any court of competent jurisdiction,that provision shall be limited or eliminated to the minimum extent necessary so this Agreementshall otherwise remain enforceable in full force and effect.10.8 Construction. Headings and captions are only for convenience and shall notaffect the construction or interpretation of this Agreement. Whenever the context requires, words,used in the singular shall be construed to include the plural and vice versa, and pronouns of anygender shall be deemed to include the masculine, feminine, or neuter gender.10.9 Counterpart Copies. This Agreement may be signed in counterpart copies, each ofwhich shall represent an original document, and all of which shall constitute a single document.10.10 No Adverse Construction. The rule that a contract is to be construed againstthe party drafting the contract is hereby waived, and shall have no applicability in construingthis Agreement or the terms hereof.10.11 Entire Agreement. With respect to its subject matter, namely, the employment byCOMPANY of EMPLOYEE, this Agreement (including the documents expressly incorporated therein, suchas the Employee Confidentiality Agreement AND OFFER LETTER), contains the entire understandingbetween the parties, and supersedes any prior agreements, understandings, and communicationsbetween the parties, whether oral, written, implied or otherwise.10.12 Assistance of Counsel. EMPLOYEE expressly acknowledges that he was given theright to be represented by counsel of his own choosing in connection with the terms of thisAgreement.The parties execute this Agreement as of the date stated below:     **EMPLOYEE/DATE** **MENTOR CORPORATION/DATE**     /s/Michael O’Neill 12/27/07 By: /s/Joseph A. Newcomb 12/28/07     MICHAEL O’NEILL/Date   Joseph A. Newcomb/Date    Vice President    General Counsel    Mentor Corporation     **NOTICE ADDRESS:** **NOTICE ADDRESS:**  201 Mentor Drive  Santa Barbara, California 93111
 
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