exv10w104



 






	 	 	 	 	 



EXHIBIT 10.104




THIS AGREEMENT is made on the 5th day of May, 2004.




PARTIES



ConceptVision Australia PTY LIMITED ACN 006 391 928 a company duly
incorporated and having its registered office at ground floor , 18-20 Orion Rd.
Lane Cove NSW Australia. (“we/us/ours”)




AND




ROBERT MITCHELL

Of

(“you/yours”)



RECITAL





	A.	 	We offer to employ you and you agree to accept our offer of employment as
Director of Sales and Marketing in the terms of this agreement.





AGREEMENTS





	1.	 	INTERPRETATION
	 
	1.1	 	Definitions
	 
	1.1.1	 	In this agreement, unless the contest otherwise requires, where
commencing with a capital letter:
	 
	 	 	“Confidential Information” means the trade secrets and all other
information regarding our affairs and any Related Company or any
of our customers which becomes known to you in circumstances where
you know, or ought to know, that the information is to be treated
as confidential;
	 
	 	 	“Real Company” means a body corporate which is a related body
corporate to us in accordance with section 50 of the Corporations
Law.
	 
	2.	 	APPOINTMENT
	 
	2.1	 	Employment
	 
	 	 	We agree to employ you and you agree to work for us as Director of
Sales and Marketing on the terms of this agreement from the 1st
day of November 2003 until the 1st day of November 2007.




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	2.2	 	Breach or other obligations
	 
	 	 	You warrant to us that by entering into this agreement and
performing your duties under it you will not breach another
obligation binding on you.
	 
	2.3	 	Warranties by you
	 
	 	 	You warrant to us that all the information contained in your
employment application and the representation made by you at the
time of your application for employment with us are true and
correct can that you will supply your expertise and customer
contacts and any associated product lines to us.
	 
	3.	 	YOUR DUTIES
	 
	3.1	 	Duties
	 
	 	 	You must diligently and faithfully perform those duties assigned
to you, which will include:






	(a)	 	direct all of the Sales and Marketing
activities for us in the Territory (Australia, New Zealand,
Malaysia, Singapore and Indonesia) and make use of all
contacts of yours;
	 
	(b)	 	supervise and manage our independent agents
(Territory Representatives) an distributors in the Territory
to maximize sales of current products and to introduce new
products and technologies;
	 
	(c)	 	develop close relationships with leading
surgeons to promote our products and to train new surgeons in
our technologies;
	 
	(d)	 	create and place into action strategies to
expand our business opportunities at State, National and
International meetings;
	 
	(e)	 	assist with the relationships with the
Therapeutic Goods Administration officials as the in-country
sponsor to new products registrations;
	 
	(f)	 	Communicates with our other management
competitors’ activities and marketing reports as required;
	 
	(g)	 	Plans advertising, public relations, sales
promotions and market research;
	 
	(h)	 	Prepare sales and sales & marketing expense
budgets for management approval. Manages those budgets to
assure expenses




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	 	 	do not exceed the operation budget. Has
authority to issue purchase requisitions up to a sum
determined by senior management;
	 
	(i)	 	Assist the Direction, Administration to
maintain customer service and product inventory levels to
service and product inventory levels to service selling
activities.
	 
	(j)	 	Responsibly for the accurate and timely
reporting of financial information as requested by STAAR US.






	3.2	 	Compliance with directions
	 
	 	 	You must comply with all reasonable and lawful directions given to
you.
	 
	3.3	 	Full time appointment
	 
	 	 	Unless absent on leave for reasons permitted under this agreement,
you must devote your time, attention and skill exclusively to our
business to fulfill your duties.
	 
	3.4	 	Promotion of our interests
	 
	 	 	You must use your best endeavors to promote our welfare and
reputation or the welfare and reputation of any Related Company
and you will not do anything which is, or may be harmful to those
interests.
	 
	3.5	 	Compliance with legislation and codes
	 
	3.5.1	 	You will, at all times, comply with our Code of Conduct and with all
legislative requirements and industry codes which apply to your duties and
the performance of those duties.
	 
	3.5.2	 	You agree and acknowledge that if you fail to comply with our Code of
Conduct or any legislative requirements or industry codes you will be
guilty of serious misconduct and will be acting outside the scope of your
employment.
	 
	3.6	 	Accurate work
	 
	3.6.1	 	You acknowledge and agree that it is very important to our business that
work undertaken by you and documentation prepared under your control must
be completed accurately and forwarded to us with all necessary supporting
material.
	 




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	3.6.2	 	You must maintain a level of accuracy and completeness so that all work
submitted by you must be error-free and complete. You acknowledge that
it is not unfair, harsh or unconscionable, having
regard to the training, support and other assistance given by us
to you to demand this standard from you.

	 
	4.	 	REMUNERATION AND SUPERANNUATION
	 
	4.1	 	Basis of remuneration and superannuation






	(a)	 	You are entitled to remuneration of AUD $
70,000.00 per annum payable in 26 equal installments.
	 
	(b)	 	You will be provided with a motor vehicle to
the value of AUD $70,000.00 (Excluding GST). ConceptVision
Australia PTY Limited will make the lease payments on a three
(3) year lease with a 30% residual. Upon expiry of the lease
if you are still in our employ you can retain the vehicle if
you choose to pay out the 30% residual.
	 
	(c)	 	We will pay a sum equal to 10% of your salary
to a superannuation fund.
	 
	(d)	 	You will be paid a yearly bonus for the years
2003 through 2006 calculated as follows based on Net Trade
Sales:
	 
	 	 	Less than $1.5m = 0.15%

Greater than $1.5m and less than $2m = 0.375%

Greater than $2m and less than $3m = 0.30%

Greater than $3m and less than $4m = 0.15%

Greater than $4m to be determined






	 	 	For the year 2007 commission schedule will revert to the original commission plan dated July 1, 1999.
	 
	4.2	 	Reimbursement
	 
	 	 	We will reimburse you for all reasonable business expenses
properly incurred by you in the performance of your duties in
accordance with our policy.
	 
	5.	 	LEAVE ENTITLEMENTS
	 
	5.1	 	Annual leave and public holidays
	 
	 	 	You are entitled to annual leave and public holidays in accordance
with the relevant legislation which applies in the state or
territory in which you live.




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	5.2	 	Sick Leave
	 
	 	 	You are entitled to sick leave in accordance with the relevant
legislation which applies in the state or territory in which you
live.
	 
	5.3	 	Long Service Leave
	 
	 	 	You are entitled to long service leave in accordance with the
relevant legislation which applies in the state or territory in
which you live.
	 
	6.	 	TERMINATION
	 
	6.1	 	Termination by us without notice
	 
	6.11	 	We may immediately terminate your employment by given written notice of
termination to you if you:






	(a)	 	are charged with any offense involving fraud or
dishonesty or any other serious offense which is punishable
by imprisonment whether you are imprisoned or not;
	 
	(b)	 	fail or refuse to comply with a reasonable
lawful direction given to you by us;
	 
	(c)	 	fail to comply with our Codes of Conduct or any
legislative requirement or industry code which applies to the
performance of your duties;
	 
	(d)	 	fail to remedy, to our reasonable satisfaction,
a serious or persistent breach of this agreement within
fourteen (14) days of receiving notice from us that breach or
default;
	 
	(e)	 	become bankrupt or compounds with your
creditors or any of them or you assign your estate for the
benefit of your creditors or any of them;
	 
	(f)	 	are otherwise guilty of serious misconduct.






	6.2	 	Termination by notice
	 
	 	 	We can terminate your employment at any time by giving you three
(3) months notice in writing and paying you six (6) months salary
and commission. The amount to be paid will be based on your
previous six (6) months salary and commissions earned in the
previous six (6) months. Upon termination of your employment by
us we will purchase any shares owned by you in accordance with the
formula contained in the




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Shareholders Agreement and you will be
entitled to purchase your vehicle on payment to us of 30% of the
initial purchase price.

	 
	6.3	 	Acts after termination of employment
	 
	6.3.1	 	Immediately after termination of the employment, you must:






	(a)	 	Deliver to us all records of Confidential
Information in your possession which are physically capable
of delivery;
	 
	(b)	 	Deliver to us all equipment and business cards
issued to you.






	6.3.2	 	You must not represent yourself as being employed by us, or connected
with us, after your employment is ended.
	 
	7.	 	USE OF CONFIDENTIAL INFORMATION
	 
	7.1	 	During this agreement, you must keep confidential all Confidential
Information and must use Confidential Information for your benefit or the
benefit of any other person.
	 
	7.2	 	At any time after termination of your employment, you must not:






	(a)	 	Disclose Confidential Information to any other
person; or
	 
	(b)	 	Disclose or use Confidential Information for
your benefit or the benefit of any person.






	8.	 	RESTRICTIVE COVENANTS AFTER TERMINATION OF EMPLOYMENT
	 
	8.1	 	You expressly agree as follows:






	(a)	 	Not at any time during the period of one (1)
year after the determination of your employment for any
reason to undertake or carry on or be co-employed or directly
or indirectly concerned or interested either as employer,
employee, consultant, director or shareholder in any business
similar to the business carried on by us at any place within
New South Wales;
	 
	(b)	 	Not at any time during the same period to
attempt personally or by letters, advertisements or otherwise
to obtain customers or clients of ours for any person, firm
or company carrying on any business of the kind referred to
in the Schedule whether within or outside the areas described
in the Schedule;




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	(c)	 	Not at any time either during or after the
determination of the employment for any reason and either on
your own account or for any other person or for any firm or
company to solicit, interfere with or endeavor to entice away
from us any person, firm or company who at any time during
the
continuance of your employment shall have been a customer
or client of ours;
	 
	(d)	 	PROVIDED THAT this clause will not apply in the
event that your employment is terminated because STAAR
Surgical Company (US) is taken over by another company.






	9.	 	DISCLOSURE OF CONFLICT OF INTEREST
	 
	9.1	 	You shall make full and complete disclosure in writing to us of the
existence, nature and extent of any conflict of interest or any fact or
circumstance likely to result in a conflict of interest that you may have
with your duties or obligations under this Agreement immediately upon
becoming aware of such conflict fact or circumstance.
	 
	10.	 	INVENTIONS, COPYRIGHT, DESIGNS AND KNOW HOW
	 
	10.1	 	You agree to disclose to us all Works and acknowledges that we own all
Intellectual Property in and associated with the Works authored, created
or made by you in the performance of your obligations as an employee of us
during the term of your employment by us throughout the world for the full
duration of the rights subsiding in those Works.
	 
	10.2	 	You hereby assign to us all right, title and interest in and to all Works
authored, created or made by you in the performance of your employment by
us and completed during the one (1) year period immediately following your
termination throughout the world for the full duration of the rights
subsisting those Works including, without limitation, all Intellectual
Property in the Works whether vested contingent or future, all renewals
and extensions of those rights, all claims and causes of action related to
the Works and/or Intellectual Property therein, accrued or accruing at any
time, all improvements, modifications, enhancements, developments,
adaptations and arrangements.
	 
	10.3	 	You must, both during the term of the Agreement and after termination of
your employment, do all such acts and things and execute all such
documents as we or our lawyers may require to vest ownership or
registration rights in respect of the Works, including all Intellectual
Property in us.
	 
	11.	 	MISCELLANEOUS




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	11.1	 	Governing Law
	 
	11.1.1	 	This agreement is governed by and must be construed in accordance with
the laws of New South Wales.
	 
	11.1.2	 	Each party:






	(a)	 	Irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of New South Wales
and any courts which have jurisdiction to hear appeals from
any of the courts; and
	 
	(b)	 	Waives any right to object to any proceedings
being brought in those courts for any reason.






	11.2.	 	Prior agreements
	 
	 	 	This agreement replaces all prior agreements between us:





EXECUTED AS AN AGREEMENT




	 	 	 
	

	 	/s/ ROBERT WILLIAM MITCHELL

	

	 	Robert William Mitchell
	

	 	Director of Sales and Marketing
	 
	 	 
	

	 	/s/ JOHN BILY

	 

	 	STAAR Surgical Company
	

	 	Chief Financial Officer
	

	 	John Bily








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