**Exhibit 10.43**

**SEVERANCE AGREEMENT AND RELEASE**

**RECITALS**

This Severance Agreement and Release("**Agreement**") is made by and between Christopher J. Conway ("**Employee**")and Mentor Corporation ("**Company**") (collectively referred to as the "**Parties**"):

WHEREAS, Employee was employed bythe Company;

WHEREAS, theCompany 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 Employeeand the Company (the "**Option Agreements**";

WHEREAS, Employee resigned hisemployment with Company on or about February 16, 2005 (the "**Resignation Date**");

WHEREAS, the Employee, on or aboutthe Resignation Date, has submitted his written resignation from all Board ofDirector positions to which he has been appointed and/or or elected;

WHEREAS, the Parties, and each ofthem, wish to resolve any and all disputes, claims, complaints, grievances,charges, actions, petitions and demands that either party may have against theother, including, but not limited to, any and all claims arising or in any wayrelated to Employee's employment with, or separation from, the Company;

NOW THEREFORE, in consideration ofthe promises made herein, the Parties hereby agree as follows:

**COVENANTS**

1.         Consideration.  Uponthe Effective Date (as defined in Section 25) of this Agreement, Employee willbe entitled to the following:

(a)     Severance Pay.  TheCompany agrees to pay Employee severance pay in an amount equal to Twenty-Four(24) months' base salary rate as of the Resignation Date, plus one (1) monthbase salary rate for each year of service with the Company.  Said severancepayment (in the total amount of Sixty (60) months' base salary) shall be paidwithin fifteen (15) days after the Effective Date in one lump sum payment, lessapplicable withholdings, of this Agreement. 

(b)     Options.  Employee will receive acceleratedvesting with respect to any unvested and unexpired stock options previouslygranted to the Employee under the Plans and Option Agreements and exercisablepursuant to Section 5 of the Option Agreements.  At the direction of theEmployee, the Company agrees to diligently work with the Employee with respectto any ordinary disposition of shares and unexercised options.  Except as expressly stated herein, the Options will beexercisable in accordance with the terms of the Plan and the OptionAgreements.  

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(c)     Benefits.  The Company will pay the premiums otherwise payableby the Employee and his eligible dependents for health, dental and visionbenefits coverage for up to twelve (12) months beginning on the Effective Date,or until he becomes eligible for group insurance benefits from anotheremployer, whichever comes first, provided the Employee elects continuationcoverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, asamended ("COBRA"), within the time period prescribed under COBRA.  If theEmployee discontinues COBRA continuation coverage or elects alternative coverage,a cash payment will not be provided in lieu of the Company's payment ofpremiums above.  The Company will not reimburse the Employee forany taxable income imputed to the Employee because the Company has paid theEmployee's COBRA premiums or those of theEmployee's eligible dependents.

(d)    Unreimbursed Expenses and AccruedVacation.  TheCompany will reimburse any business expenses reasonably incurred in performingservices for the Company prior to the Resignation Date.  In addition, allaccrued but unused vacation will be paid to the Employee pursuant to normalpayroll practices.

(e)     Vehicle Allowance.  The Company will transferownership of the Employee's current Company vehicle to the Employee, free andclear of any liens or encumbrances.  The Company agrees to commence suchtransfer within fifteen (15) days after the Effective Date.

(f)     Office Allowance.  The Company will pay the Employeea one-time office allowance in the amount of $25,000 to maintain an office,payable in a lump sum within fifteen (15) days after the Effective Date.

(g)     Parachute Payment.  In the event any of the paymentsand benefits provided to the Employee result in an excise tax imposed byInternal Revenue Code Section 4999, the Company will pay the Employee anadditional payment ("Gross-Up Payment") in an amount such that, after paymentby the Employee of all taxes imposed upon the Gross-Up Payment, the Employeeretains an amount of the Gross-Up Payment equal to any excise tax imposed onthe payments and benefits provided in this Agreement.

2.        ConfidentialInformation. Employee will continue to maintain the confidentiality of all confidential andproprietary information of the Company.  Employee will return all of theCompany's property and confidential and proprietary information in his possessionto the Company on the Effective Date of this Agreement.

3.         Payment ofSalary.  Employeeacknowledges and represents that the Company has paid all salary, wages,bonuses, accrued vacation, commissions and any and all other benefits due toEmployee once the above noted payments and benefits are received.

4.         Press Release.  The Parties agree that theCompany will issue a press release with respect to the changes in executivestaff and Board of Directors.  The Company will provide Employee an opportunityto review and comment on the press release.

5.         Release ofClaims.  Employeeagrees that the foregoing consideration represents settlement in full of alloutstanding obligations owed to Employee by the Company and its officers,managers, supervisors, agents and employees.  In consideration for the mutualcovenants contained in this Agreement, including but not limited to theseverance compensation provided hereunder, Employee and the Company, on behalfof 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, familymembers, executors, officers, directors, employees, investors, shareholders,administrators, affiliates, divisions, subsidiaries, predecessor and successorcorporations, 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 any of themmay possess arising from any omissions, acts or facts that have occurred upuntil and including the Effective Date of this Agreement including, withoutlimitation:

 

 

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(a)     any and all claims relating to orarising from Employee's employment relationship with the Company and thetermination of that relationship;

(b)     any and all claims relating to, orarising from, Employee's right to purchase, or actual purchase of shares ofstock of the Company, including, without limitation, any claims for fraud,misrepresentation, breach of fiduciary duty, breach of duty under applicablestate corporate law, and securities fraud under any state or federal law; 

(c)     any and all claims under the law ofany jurisdiction including, but not limited to, wrongful discharge ofemployment; constructive discharge from employment; termination in violation ofpublic policy; discrimination; harassment; retaliation; breach of contract, bothexpress and implied; breach of a covenant of good faith and fair dealing, bothexpress and implied; promissory estoppel; negligent or intentional inflictionof emotional distress; negligent or intentional misrepresentation; negligent orintentional interference with contract or prospective economic advantage;unfair business practices; defamation; libel; slander; negligence; personalinjury; assault; battery; invasion of privacy; false imprisonment; andconversion;

(d)     any and all claims for violation ofany federal, state or municipal statute, including, but not limited to, TitleVII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the AgeDiscrimination in Employment Act of 1967, the Americans with Disabilities Actof 1990, the Fair Labor Standards Act, the Employee Retirement Income SecurityAct of 1974, The Worker Adjustment and Retraining Notification Act, OlderWorkers Benefit Protection Act; the Family and Medical Leave Act; theCalifornia Family Rights Act; the California Fair Employment and Housing Act,and the California Labor Code, including, but not limited to California LaborCode Sections 1400-1408;

(e)     any and all claims for violation ofthe federal, or any state, constitution; 

(f)       any and all claims arising out ofany other laws and regulations relating to employment or employmentdiscrimination;

(g)     any claim for any loss, cost,damage, or expense arising out of any dispute over the non-withholding or othertax treatment of any of the proceeds received by Employee as a result of thisAgreement; and

(h)     any and all claims for attorneys'fees and costs.

TheCompany and Employee agree that the releases set forth in this section will beand remain in effect in all respects as a complete general release as to thematters released.  This release does not extend to any obligations incurredunder this Agreement.

The Parties acknowledge and agree that any materialbreach of any provision of this Agreement will entitle the non-breaching partyto any legal or equitable remedies available to such non-breaching party,including but not limited to the right to immediately to recover and/or ceasethe severance benefits provided under this Agreement.

6.        Civil CodeSection 1542.  TheParties represent that they are not aware of any claim by either of them otherthan the claims released by this Agreement.  Employee and the Companyacknowledge that they had the opportunity to seek advice of legal counsel andare familiar with section 1542 of the California Civil Code, which reads asfollows:

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A GENERAL RELEASE DOESNOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST INHIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVEMATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

Employee and the Company, being aware of such code section,agree to expressly waive any rights they may have thereunder, as well as underany other statute or common law principles of similar effect.

7.         Acknowledgementof Waiver of Claims Under ADEA.  Employee acknowledges that he is waiving and releasing anyrights he may have under the Age Discrimination in Employment Act of 1967 ("**ADEA**")and that this waiver and release is knowing and voluntary.  Employee and theCompany agree that this waiver and release does not apply to any rights orclaims that may arise under ADEA after the Effective Date of this Agreement. Employee acknowledges that the consideration given for this waiver and releaseAgreement is in addition to anything of value to which Employee was alreadyentitled.  Employee further acknowledges that he has been advised by thiswriting that 

(a)     he should consult with an attorney priorto executing this Agreement;

(b)     he has up to twenty-one (21) dayswithin which to consider this Agreement;

(c)     he has seven (7) days following hisexecution of this Agreement to revoke this Agreement;

(d)     this Agreement will not be effectiveuntil the revocation period has expired; and,

(e)     nothing in this Agreement preventsor precludes Employee from challenging or seeking a determination in good faithof the validity of this waiver under the ADEA, nor does it impose any conditionprecedent, penalties or costs for doing so, unless specifically authorized byfederal law.

Employeeacknowledges that Employee was given twenty‐one (21) days to considerthis Agreement.  Once this agreement is executed, Employee may rescind thisSeparation Agreement within seven calendar days to reinstate federal claims.  To be effective, any rescission within the relevant time periods must bewriting and delivered to Mentor, in care of the Board of Directors,Compensation Committee, PERSONAL AND CONFIDENTIAL, Mentor Corporation, 201 Mentor Drive, Santa Barbara, CA, 93111.  If sent by mail, the rescission must be (1)postmarked within the 7-day period, (2) properly addressed, and (3) sent bycertified mail, return receipt requested.

8.         No Pending orFuture Lawsuits. Employee represents that he has no disputes, claims, complaints, grievances,charges, petitions, demands, lawsuits, or actions pending in his name, or onbehalf of any other person or entity, against the Company or any other personor entity referred to herein.  Employee also represents that he does not intendto bring any claims on his own behalf or on behalf of any other person orentity against the Company or any other person or entity referred to herein.

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9.          Non-Disparagement.  Employee agrees to refrain fromany defamation, libel or slander of the Released Parties or tortiousinterference with the contracts and relationships of the Released Parties. Employee agrees he will not act in any manner that might damage the business ofthe Company.  Employee agrees that he will not counsel or assist any attorneysor their clients in the presentation or prosecution of any disputes,differences, grievances, claims, charges, or complaints by any third party againstthe Company and/or any officer, director, employee, agent, representative,shareholder or attorney of the Company, unless under a subpoena or other courtorder to do so.  Employee further agrees both to immediately notify the Companyupon receipt of any court order, subpoena, or any legal discovery device thatseeks or might require the disclosure or production of the existence or termsof this Agreement, and to furnish, within three (3) business days of itsreceipt, a copy of such subpoena or legal discovery device to the Company.  Allinquiries by potential future employers of Employee will be directed to theHuman Resources Department, Mentor Corporation, 201 Mentor Drive, Santa Barbara, CA  03111.  Upon inquiry, the Company's Human Resources Department willonly be obligated, if asked, to state the following:  Employee's last position,dates of employment and verify base salary.

10.         Non-Solicitation.  Employee agrees that for a periodof twenty-four (24) months immediately following the Effective Date of thisAgreement, Employee will not either directly or indirectly solicit, induce,recruit or encourage any of the Company's employees to leave their employment,or take away such employees, or attempt to solicit, induce, recruit, encourage,take away or hire employees of the Company, either for himself or any otherperson or entity.

11.         Non-Competition.  Employee agrees that for a periodof twenty-four (24) months immediately following the Effective Date of thisAgreement, Employee will not, individually or as a member of a partnership, oras an officer, director, employee, or representative of any other entity orindividual, engage, directly or indirectly, in any business activity which isthe same or similar to work engaged in by the Employee on behalf of the Companywithin the same geographic territory as the Employee's work for the Company andwhich is directly competitive with the business conducted or to the Employee'sknowledge, contemplated by the Company at the time of termination of thisAgreement.  Employee may accept e-mployment with an entity competing with theCompany only if the business of that entity is diversified and the Employee isemployed solely with respect to a separately-managed and separately-operatedpart of that entity's business that does not compete with the Company.  Priorto accepting such employment, the Employee and the prospective employer entityshall provide the Company with written assurances reasonably satisfactory tothe Company that the Employee will not render services directly or indirectlyto any part of that entity's business that competes with the business of theCompany.

12.         No Admission.  No action taken by the Partieshereto, or either of them, either previously or in connection with thisAgreement will be deemed or construed to be: (a) an admission of the truth orfalsity of any claims heretofore made or (b) an acknowledgment or admission byeither party of any fault or liability whatsoever to the other party or to anythird party.

13.          No Knowledgeof Wrongdoing. Employee represents that he has no knowledge of any wrongdoing involvingimproper or false claims against a federal or state governmental agency, or anyother wrongdoing that involves Employee or other present or former Companyemployees.

14.          Costs.  The Parties will each bear theirown costs, expert fees, attorneys' fees and other fees incurred in connectionwith this Agreement.

15.          Indemnification.  To the fullest extent permittedby law [and the bylaws of the Articles of Incorporation of the Company], theParties agree to indemnify and hold harmless each other from and against anyand all loss, costs, damages or expenses, including, without limitation,attorneys' fees or expenses incurred by the Parties arising out of the breachof this Agreement by the Parties, or from any false representation made hereinby the Parties, or from any action or proceeding which may be commenced,prosecuted or threatened by the Parties or for the Parties' benefit, uponeither Parties' initiative, or with the Parties' aid or approval, contrary to theprovisions of this Agreement.  The Parties further agrees that in any suchaction or proceeding, this Agreement may be pled by the Parties as a completedefense, or may be asserted by way of counterclaim or cross-claim.

16.          Arbitration.  The Parties agree that any andall disputes arising out of, or relating to, the terms of this Agreement, theirinterpretation, and any of the matters herein released, will be subject tobinding arbitration in Santa Barbara****County before the AmericanArbitration Association under its National Rules for the Resolution ofEmployment Disputes.  The Parties agree that the prevailing party in anyarbitration will be entitled to injunctive relief in any court of competentjurisdiction to enforce the arbitration award.  The Parties agree that theprevailing party in any arbitration will be awarded its reasonable attorneys'fees and costs.  

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TheParties hereby agree to waive their right to have any dispute between themresolved in a court of law by a judge or jury.  This section will not preventeither party from seeking injunctive relief (or any other provisional remedy)from any court having jurisdiction over the Parties and the subject matter oftheir dispute relating to Employee's obligations under this Agreement and theagreements incorporated herein by reference.

17.         Authority.  The Company represents andwarrants that the undersigned has the authority to act on behalf of the Companyand to bind the Company and all who may claim through it to the terms andconditions of this Agreement.  Employee represents and warrants that he has thecapacity to act on his own behalf and on behalf of all who might claim throughhim to bind them to the terms and conditions of this Agreement.  Each partywarrants and represents that there are no liens or claims of lien orassignments in law or equity or otherwise of or against any of the claims orcauses of action released herein.

18.        NoRepresentations. Each party represents that it has had the opportunity to consult with anattorney, and has carefully read and understands the scope and effect of theprovisions of this Agreement.  Neither party has relied upon anyrepresentations or statements made by the other party hereto which are notspecifically set forth in this Agreement.

19.        Severability.  In the event that any provisionhereof becomes or is declared by a court of competent jurisdiction to beillegal, unenforceable or void, then (a) the provision will be amendedautomatically to the minimum extent necessary to cure the illegality orinvalidity and permit enforcement and (b) the remainder of this Agreement willcontinue in full force and effect so long as the remaining provisions remainintelligible and continue to reflect the original intent of the Parties.

20.        Entire Agreement.  This Agreement represents the entire agreement andunderstanding between the Company and Employee concerning the subject matter ofthis Agreement and Employee's relationship with the Company, and supersedes andreplaces any and all prior agreements and understandings between the Partiesconcerning the subject matter of this Agreement and Employee's relationshipwith the Company, with the exception of the Stock Option Agreements.

21.        No Waiver.  The failure of any party toinsist upon the performance of any of the terms and conditions in thisAgreement, or the failure to prosecute any breach of any of the terms andconditions of this Agreement, will not be construed thereafter as a waiver ofany such terms or conditions.  This entire Agreement will remain in full forceand effect as if no such forbearance or failure of performance had occurred.

22.        No OralModification.  Anymodification or amendment of this Agreement, or additional obligation assumedby either party in connection with this Agreement, will be effective only ifplaced in writing and signed by both Parties or by authorized representativesof each party.

23.        Governing Law.  This Agreement will be deemed tohave been executed and delivered within the State of California, and it will beconstrued, interpreted, governed, and enforced in accordance with the laws ofthe State of California, without regard to conflict of law principles.  To theextent that either party seeks injunctive relief in any court havingjurisdiction for any claim relating to the alleged misuse or misappropriationof trade secrets or confidential or proprietary information, each party herebyconsents to personal and exclusive jurisdiction and venue in the state andfederal courts of the State of California.

24.        Attorneys'Fees.  In the eventthat either Party brings an action to enforce or effect its rights under thisAgreement, the prevailing party will be entitled to recover its costs andexpenses, including the costs of mediation, arbitration, litigation, courtfees, plus reasonable attorneys' fees, incurred in connection with such anaction.

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25.        EffectiveDate.  ThisAgreement is effective after it has been signed by both parties and after seven(7) days have passed since Employee has signed the Agreement (the "**EffectiveDate**"), unless revoked by Employee within seven (7) days after the date theAgreement was signed by Employee.

26.       Counterparts.  This Agreement may be executed incounterparts, and each counterpart will have the same force and effect as anoriginal and will constitute an effective, binding agreement on the part of eachof the undersigned.

27.        VoluntaryExecution of Agreement.  This Agreement is executed voluntarily and without any duress orundue influence on the part or behalf of the Parties hereto, with the fullintent of releasing all claims.  The Parties acknowledge that:

(a)     They have read this Agreement;

(b)     They have been represented in thepreparation, negotiation, and execution of this Agreement by legal counsel oftheir own choice or that they have voluntarily declined to seek such counsel;

(c)     They understand the terms andconsequences of this Agreement and of the releases it contains; and

(d)     They are fully aware of the legaland binding effect of this Agreement.

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INWITNESS WHEREOF, the Parties have executed this Agreement on the respectivedates set forth below.

                                                                        MENTORCORPORATION

Dated:  February 16, 2005                                  By /s/Jeffrey W. Ubben                                                                              JeffreyW. Ubben                                                                              CompensationCommittee Chair

 

                                                                        CHRISTOPHERJ. CONWAY, an individual 

Dated: February 16, 2005                                   /s/Christopher J. Conway                                                                        ChristopherJ. Conway

 

 

 

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