EX-10.71






AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT




This Amended and Restated Employment Agreement (the “Agreement”) is made on December 31, 2008,
by and between STAAR Surgical Company, a Delaware corporation (“STAAR”), and Barry G. Caldwell
(“the Executive”).



RECITALS




A. STAAR wishes to retain the services of the Executive and the Executive wishes to render
services to STAAR as its President and Chief Executive Officer.



B. The Executive and STAAR wish to enter into this Agreement to establish the terms and
conditions of the Executive’s employment.



C. STAAR and the Executive intend this Agreement to supersede and replace any and all other
employment agreements or arrangements for employment entered into between them, and intend that any
such understandings or arrangements will have no further force or effect.



NOW, THEREFORE, in consideration of the mutual promises, covenants, and agreements contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:



ARTICLE 1

Effective Date; Term




1.1 Employment; Effective Date. STAAR agrees to employ the Executive, and the Executive
hereby agrees to accept employment with STAAR, under the terms and subject to the conditions set
forth in this Agreement. This Agreement is amended and restated effective as of November 27, 2007
(the “Effective Date”).



1.2 Term of Employment. Subject to extension in accordance with Section 1.3, the term
of this Agreement shall commence on the Effective Date and shall continue until the first
anniversary of the Effective Date (the “Initial Term”), unless terminated earlier in accordance
with Article 5 of this Agreement.



1.3 Extension of Term. The term of this Agreement shall be automatically extended by one (1)
year from the expiration of the Initial Term and on each subsequent anniversary of the Effective
Date, unless STAAR elects not to so extend the term of the Agreement by notifying the Executive, in
writing, of such election not less than six (6) months prior to the last day of the Term as then in
effect. Any extension shall become effective immediately as of the day following the date which is
six (6) months prior to the last day of the Term as then in effect. For purposes of this
Agreement, the “Term” shall mean the period commencing on the Effective Date and ending on the last
day of the Initial Term or, if applicable, the last day of the latest one-year extension of this
Agreement in accordance with this Section 1.3.



ARTICLE 2

Employment; Duties




2.1 Position. The Executive shall be employed as President and Chief Executive Officer of
STAAR, and shall, during the term of the Executive’s employment, serve in such position or in such
other position or positions as the Board of Directors of STAAR (the “Board”) may reasonably request
from time to time. The Executive shall report directly to the Board.



2.2 Duties. During the term of the Executive’s employment, the Executive shall devote the
Executive’s full time, efforts, abilities, and energies to STAAR’s business and shall use the
Executive’s best efforts, skill, and abilities to promote the general welfare and interests of
STAAR. The Executive shall loyally, conscientiously, and professionally perform all duties and
responsibilities reasonably assigned by STAAR and the Executive’s superiors, and shall comply with
all of STAAR’s personnel policies and procedures, including without limitation those contained in
STAAR’s Employee Handbook. The Executive’s services shall be performed at STAAR’s headquarters in
Monrovia, California.



2.3 Other Activities. Except with the prior written approval of the Board, which the Board
may grant or withhold in its sole and absolute discretion, the Executive shall not, during the term
of the Executive’s employment, be actively engaged in any other business activity, including, but
not limited to, activity as a consultant, agent, partner, officer or director, or provide business
services of any nature directly or indirectly to a corporation or other business enterprise;
provided, however, that so long as the activities do not interfere with the Executive’s duties and
responsibilities hereunder, the Executive may participate in other business activities for
non-profit institutions from time to time. Notwithstanding the foregoing, it shall not be a breach
of this Agreement for the Executive to serve on civic or charitable boards or committees, or to
invest the Executive’s personal assets in other businesses or ventures to the extent that such
other activities, businesses or ventures do not materially interfere with the performance of the
Executive’s duties under this Agreement. None of the foregoing shall in any way modify the
Executive’s responsibilities hereunder, including without limitation the Executive’s
responsibilities under Articles 7 and 8. Notwithstanding anything herein to the
contrary, the Executive shall be entitled to perform any obligations under the Executive’s existing
Consulting Agreement with IRIDEX Corporation through January 15, 2008.



2.4 Board Service. During the Term, the Board shall nominate the Executive for re-election to
the Board at the conclusion of each term as director, unless the Executive elects not to stand for
election. The Executive shall not receive additional consideration for service on the Board.



ARTICLE 3

Compensation




3.1 Base Salary.



(a) Base Salary. Subject to any election made pursuant to Section 3.1(b), STAAR shall
pay the Executive a base salary (the “Initial Base Salary”) at the annual rate of $300,000
(effective November 27, 2008, $400,000), to be paid on a bi-weekly basis in cash by check, wire
transfer or similar means. The Executive’s annual salary will be reviewed annually by the Board
for the purpose of determining whether, at the sole discretion of the Board, the Executive’s salary
shall be increased. (In this Agreement the term “Base Salary” shall mean, as of any date, the
Initial Base Salary, plus all discretionary increases of annual pay made by the Board up to and
including such date.)



(b) Equity Compensation Portion of Base Salary. Subject to the approval of the Board,
during the Term the Executive may elect to receive a portion of his Base Salary to be earned during
the next Renewal Term in the form of restricted shares of STAAR’s common stock (the “Stock
Portion”) as follows. At the first regularly scheduled meeting of the Board following the filing
of STAAR’s Quarterly Report on Form 10-Q for the third fiscal quarter (the “Election Date”), the
Executive may request to receive a specified amount of his Base Salary as the Stock Portion. If
approved by the Board, the Executive shall receive, on, or as soon as practicable after, the
anniversary of the Effective Date, restricted shares of STAAR’s common stock pursuant to the 2003
Omnibus Equity Incentive Plan or such similar equity incentive plan of the Company then in effect
(the “Plan”), in a number equal to the Stock Portion divided by the Fair Market Value (as defined
in the Plan) of STAAR’s common stock on the Election Date. Any Stock Portion received by the
Executive shall be subject to vesting restrictions pursuant to the form of Restricted Stock
Agreement appended to the Plan, and shall vest in twelve equal monthly installments at the end of
each full calendar month following the anniversary of the Effective Date.



3.2 Bonus. In addition to the Base Salary, the Executive will be eligible for an annual
performance bonus of up to 60% of the Base Salary, to be based on such bonus plans or programs as
those for which similarly situated executive employees of STAAR are eligible, subject to and in
accordance with the terms, conditions and overall administration of such bonus plans or programs
and at the sole discretion of STAAR. STAAR’s present executive performance bonus program provides
for the determination and payment of any performance bonus for each executive during the first
quarter of each calendar year, based on an evaluation of such executive’s performance in the
previous year against objectives established by the Compensation Committee of the Board. STAAR
reserves the right to change its basis for paying performance bonuses at any time or from time to
time and to modify or discontinue any bonus plan or program. Nothing herein is intended or shall
be construed to require the institution or continuation of any bonus plan or program, or to entitle
the Executive to receive any bonus. Active employment at STAAR on the date of the bonus payment is
a condition precedent to earning the bonus.



3.3 Stock Options or Other Equity-Based Awards. Subject to approval by the Board at its next
regular meeting after the effective date of this Agreement, STAAR will grant to the Executive an
option to purchase two hundred thousand (200,000) shares of STAAR’s common stock. The options will
be granted pursuant to the Plan, with the grant effective on the date approved by the Board. The
options will vest in equal increments on each of the first three anniversaries of the Effective
Date, subject to continued service. Pursuant to the Plan, the exercise price per share will be the
closing price of STAAR’s common stock on the Nasdaq Global Market at the close of business on the
date when the grant is effective (or at the close of business on the next trading day if such
effective date is not a trading day). The Executive shall be eligible to receive awards under such
stock option or other equity award plans or programs as are generally available from time to time
to similarly situated executive employees of STAAR, subject to and in accordance with the terms,
conditions and overall administration of such plans or programs. Such grants shall be at the
exclusive discretion of the Board and nothing herein is intended to or shall be construed to
require STAAR to issue any stock option or other equity award to the Executive.



3.4 Withholding. STAAR shall deduct or withhold from the compensation and benefits payable to
the Executive hereunder any and all sums required for federal income and employment and other taxes
and all state or local income and other taxes now applicable or that may be enacted and become
applicable during the term of the Executive’s employment.



3.5 Relocation Assistance. In consideration of the Executive’s accepting full time employment
in southern California, STAAR will provide the following relocation assistance:



(a) Subject to Section 3.5(c) below, STAAR will reimburse the Executive for the cost
of a serviced executive apartment in the vicinity of STAAR’s offices during the 2009 calendar year,
and will also pay for two round trips each month between California and Fort Worth, Texas for
either the Executive or his spouse during the 2009 calendar year.



(b) Subject to Section 3.5(c) below, if the Executive elects to sell his home in Texas
in order to purchase a residence in Southern California as his principal residence, then STAAR will
reimburse all reasonable related costs, including realtor’s commissions, legal fees, title
insurance, mortgage pre-payment penalties, closing costs and other customary non-recurring fees,
and will pay moving expenses for personal possessions, household goods and up to two automobiles,
and storage of personal property for a period of up to three (3) months. This assistance will be
available at the Executive’s election only during the 2009 calendar year. If the Executive
terminates employment pursuant to a Voluntary Resignation Without Good Reason prior to December 31,
2009, the Executive shall refund to STAAR any amounts paid under this Section 3.5(b).



(c) Notwithstanding any provision in the Agreement to the contrary, the reimbursement of
eligible expenses or in-kind benefits provided pursuant to this Agreement, including, but not
limited to, this Section, shall be subject to the following conditions:




	 	(i)	 	The eligible expenses or in-kind benefits
provided for in this Section must be incurred or provided in the 2009
calendar year. All other eligible expenses or in-kind benefits
provided for in this Agreement must be incurred or provided during the
Term.






	 	(ii)	 	The expenses eligible for reimbursement or
in-kind benefits in one taxable year shall not affect the expenses
eligible for reimbursement or in-kind benefits in any other taxable
year;






	 	(iii)	 	The reimbursement of eligible expenses shall
be made promptly, subject to the Company’s applicable policies, but in
no event later than the end of the year after the year in which such
expense was incurred; and






	 	(iv)	 	The right to reimbursement or in-kind benefits
shall not be subject to liquidation or exchange for another benefit.





ARTICLE 4

Employee Benefits




4.1 Employee Benefits. During the term of the Executive’s employment, the Executive shall be
entitled to participate in or receive such benefits and perquisites as are provided generally from
time to time to similarly situated executive employees of STAAR, subject to and in accordance with
the terms, conditions and overall administration of the benefit plans pertaining to such benefits,
including such benefits provided to dependents, including without limitation executive level
health, dental and life insurance coverage. Nothing herein is intended or shall be construed to
require the institution or continuation of any plan or benefits. STAAR may, in its sole
discretion, grant such additional benefits to the Executive from time to time as STAAR deems proper
and desirable.



4.2 Office Support. The Executive shall be entitled to receive secretarial and other office
support commensurate with the Executive’s position and consistent with the general policies and
practices of STAAR.



4.3 Vacation. During the term of the Executive’s employment, the Executive shall be entitled
to three weeks of paid vacation per year, which, to the extent unused in any given year, may be
carried over to the following year, but only to the extent permitted by the policies of STAAR then
in effect and by applicable laws and regulations.



4.4 Business Expenses.



(a) Reimbursement. STAAR shall reimburse the Executive for all reasonable and authorized
business expenses incurred by the Executive during the term of the Executive’s employment.



(b) Business Travel. STAAR shall reimburse the Executive for expenses incurred for
business-related travel in accordance with STAAR’s travel reimbursement policy.



(c) Documentation. As a condition to reimbursement under this Section 4.4, the
Executive shall furnish to STAAR on a timely basis adequate records and other documentary evidence
required by federal and state statutes and regulations for the substantiation of each expenditure.
The Executive acknowledges and agrees that failure to furnish the required documentation may result
in STAAR denying all or part of the expense for which reimbursement is sought.



ARTICLE 5

Termination of Employment




The Executive’s employment hereunder shall be terminated, or may be terminated, as the case
may be, under the following circumstances:



5.1 Termination upon Death. The Executive’s employment shall automatically be terminated upon
his death.



5.2 Termination on Disability. Subject to and in compliance with all state and federal
workers’ compensation, disability, family and medical leave, and any other potentially applicable
laws, the Executive’s employment shall be terminated upon his Disability (defined below). Upon
Disability (defined below), the Executive shall be entitled to receive: (i) a severance payment
equal to six months of the cash Base Salary provided for in Section 3.1(a) at the rate in
effect on the termination date in the form of a lump sum payment on the 60th day
following such termination of employment; and (ii) Continued Benefits (as defined in
Section 5.11) for 12 months. The term “Disability” shall mean that the Executive is either
(a) unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months, or (b) by reason of any medically determinable
physical or mental impairment that can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months, receiving income replacement benefits for a
period of not less than three months under an accident and health plan covering employees of STAAR.
The Executive shall be deemed Disabled if determined by STAAR to be totally disabled by the Social
Security Administration. The Executive shall also be deemed Disabled if determined by STAAR to be
disabled in accordance with the applicable disability insurance program of STAAR, provided that the
definition of “disability” applied under such disability insurance program complies with the
requirements of this section.



5.3 Discharge for Cause.



(a) STAAR may terminate the Executive’s employment hereunder for Cause (a “Discharge for
Cause”). For purposes of this Agreement, “Cause” shall be limited to only four types of events:




	 	(i)	 	willful breach or habitual neglect of the
duties which the Executive is required to perform under the terms of
this Agreement;






	 	(ii)	 	any act of dishonesty, fraud, insubordination,
misrepresentation, gross negligence or willful misconduct;






	 	(iii)	 	conviction of a felony, or






	 	(iv)	 	intentional violation of any STAAR policy.





Notwithstanding the foregoing, no act or failure to act on the Executive’s part shall be deemed
“willful” unless done, or omitted to be done, by the Executive not in good faith and without
reasonable belief that the action or omission was in the best interest of STAAR.



(b) The Executive agrees and acknowledges that any Cause shall also be cause for removal from
the Board.



5.4 Discharge Without Cause.



(a) STAAR may terminate the Executive’s employment hereunder other than for Cause (a
“Discharge Without Cause”). For avoidance of doubt, termination of the Executive’s employment upon
death or Disability shall not be considered a Discharge Without Cause.



(b) Following a Discharge Without Cause, the Executive shall be entitled to receive: (i) a
severance payment equal to 18 months of cash Base Salary provided for in Section 3.1(a) at
the rate in effect on the termination date in the form of a lump sum payment on the 60th
day following such termination of employment; and (ii) Continued Benefits (as defined in
Section 5.11) for 12 months.



5.5 Voluntary Resignation for Good Reason.



(a) The Executive may terminate his employment hereunder for Good Reason (a “Voluntary
Resignation for Good Reason”) within two years following the initial existence of Good Reason. In
the event that the Executive fails to terminate his employment within such period but the
Executive’s employment in fact terminates at the initiation of the Executive, such termination
shall be deemed a termination by the Executive without Good Reason. The term “Good Reason” shall
mean any one or more of the following:




	 	(i)	 	An involuntary material diminution in the
Executive’s Base Salary.






	 	(ii)	 	An involuntary material diminution in the
Executive’s authority, duties, or responsibilities.






	 	(iii)	 	An involuntary material diminution in the
authority, duties, or responsibilities of the supervisor to whom the
Executive is required to report, including a requirement that the
Executive report to a corporate officer or employee instead of
reporting directly to the Board.






	 	(iv)	 	An involuntary material diminution in the
budget over which the Executive retains authority.






	 	(v)	 	A 50 mile or greater change in the geographic
location at which the Executive must perform his services.






	 	(vi)	 	Any other action or inaction that constitutes a
material breach of the Agreement.





The Executive must give STAAR written notice which shall identify with reasonable specificity the
grounds for Good Reason within 90 days of the initial existence of Good Reason, upon the notice of
which STAAR shall have 30 days to cure the alleged grounds for Good Reason contained in the notice.
In the event the Executive fails to notify STAAR of the existence of Good Reason within such 90
day period but the Executive’s employment in fact terminates at the initiation of the Executive,
such termination shall be deemed a termination by the Executive without Good Reason.



(b) If the Executive’s employment hereunder is terminated due to a Voluntary Resignation for
Good Reason, the Executive shall be entitled to receive the amount provided for in Section
5.4(b) above on the payment date provided for above.



5.6 Voluntary Resignation Other Than for Good Reason. The Executive may terminate his
employment hereunder other than for Good Reason.



5.7 Severance Payment and Benefits Following a Change in Control.



(a) Notwithstanding Sections 5.4 and 5.5, if the Executive’s employment terminates
pursuant to a Discharge Without Cause or a Voluntary Resignation for Good Reason within one (1)
year after a Change in Control, the Executive shall be entitled to receive: (i) a severance
payment equal to eighteen (18) months of Base Salary at the rate in effect on the termination date
in the form of a lump sum payment on the 60th day following such termination of
employment, and (ii) Continued Benefits (as defined in Section 5.11) for 12 months. In
such event, STAAR agrees that all stock options, restricted stock and other incentive compensation
awards of the Executive that are outstanding at the time of such termination and that have not
previously become exercisable, payable or free from restrictions shall immediately become
exercisable, payable or free from restrictions, as the case may be, in their entirety, and that,
the exercise period of any stock option shall continue for the length of the exercise period
specified in the grant of the award determined without regard to the Executive’s termination of
employment. The Executive shall also receive executive outplacement benefits of a type generally
provided to executives at the Executive’s level for 12 months. Any payments made or benefits
provided under this Section 5.7 shall be in place of, and not in addition to, amounts
otherwise payable under Sections 5.4 and 5.5.



(b) Change in Control. For purposes of this Agreement, “Change in Control” shall mean the
occurrence of any one or more of the following events:



(1) Any person, including a group as defined in Section 13(d)(3) of the Exchange Act, but
excluding Broadwood Partners, L.P. or a group of which it is a member, becomes the beneficial owner
of stock of STAAR with respect to which twenty-five percent (25%) or more of the total number of
votes for the election of the Board may be cast;



(2) As a result of, or in connection with, any cash tender offer, exchange offer, merger or
other business combination, sale of assets or contested election, or combination of the foregoing,
persons who were directors of STAAR just prior to such event shall cease to constitute a majority
of the Board;



(3) The stockholders of STAAR shall approve an agreement providing either for a transaction in
which STAAR will cease to be an independent publicly owned corporation or for a sale or other
disposition of all or substantially all the assets of STAAR, and such transaction is completed; or



(4) The acquisition in a single or series of related transactions, including without
limitation a tender offer or exchange offer, by any person or related group of persons (other than
STAAR or by a Company-sponsored employee benefit plan), of beneficial ownership (within the meaning
of Rule 13d-3 of the Exchange Act) of securities possessing more than fifty percent (50%) of the
total combined voting power of STAAR’s outstanding securities.



Notwithstanding the foregoing, the formation of a holding company for STAAR in which the
stockholdings of the holding company after its formation are substantially the same as for STAAR
prior to the holding company formation does not constitute a Change in Control for purposes of this
Agreement.



5.8 Amounts Earned Prior to Termination of Employment. Upon termination of employment for any
reason, the Executive shall receive any earned but unpaid compensation to which the Executive is
entitled on the date of such termination and expenses incurred by the Executive prior to such
termination reimbursable under Section 4.4.



5.9 Termination of STAAR’s Obligations. Upon termination of employment for any reason, the
obligations of the Executive and STAAR under this Agreement will immediately cease, with the
exception of the covenants contained in Articles 7 and 8, the severance payment and
benefits specifically provided for in this Article 5, and the benefits specifically
provided for in STAAR’s employee benefit plans. As such, STAAR shall have no further obligation to
pay the Executive any compensation, bonus or other compensation or benefits, except as provided for
in this Article 5 and for benefits due to the Executive (and the Executive’s dependents)
under the terms of STAAR’s employee benefit plans. Such termination will be without prejudice to
any other remedy to which STAAR may be entitled either at law, in equity, or under this Agreement.



5.10 Mitigation. The Executive shall not be required to seek other employment or to reduce
any amount payable to the Executive under Article 5 of this Agreement, and no such amount
shall be reduced on account of any compensation received by the Executive from other employment.



5.11 Continued Benefits. In the event that the Executive elects to continue his medical and
dental coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) and
remain eligible for coverage under COBRA, STAAR shall pay directly to the insurance carriers the
full cost of the Executive’s monthly COBRA premium for medical and dental coverage (“Continued
Benefits"). STAAR shall make this payment for such number of months provided for in Article
5 in accordance with COBRA regulations. Executive shall be responsible for paying his monthly
premium for medical and dental coverage under COBRA at the conclusion of such period, without
further notice from STAAR.



5.12 Resignation from Board. If the Executive is serving as a director, the Executive shall,
immediately upon termination of employment hereunder for any reason, submit to the Board his
binding and unconditional offer to resign from his position as director. Receipt of such offer
shall be a condition precedent to STAAR’s obligation to pay any amount of severance, to provide any
benefits after termination, or to any other obligation under this Agreement.



ARTICLE 6

Indemnification for Excise Taxes




If the Executive becomes entitled to receive the severance payment provided for in Article
5, and such severance payment and any other benefits or payments (including transfers of
property, within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the
“Code”)) that the Executive receives, or is to receive, pursuant to this Agreement or any other
agreement, plan or arrangement with STAAR in connection with a Change in Control of STAAR (“Total
Benefits”) shall be subject to the tax imposed pursuant to Section 4999 of the Code or any
comparable provision of state law (an “Excise Tax”), the following rules shall apply:



(a) STAAR shall pay to the Executive an additional amount (the “Gross-Up Payment”) such that
the net amount retained by the Executive, after deduction of any Excise Tax with respect to the
Total Benefits and any federal, state and local income tax, employment tax and Excise Tax upon such
Gross-Up Payment, is equal to the amount that would have been retained by the Executive if such
Excise Tax were not applicable, as determined by the accounting firm (the “Auditors”) serving as
STAAR’s independent auditors immediately prior to the Change in Control. STAAR shall make such
Gross-Up Payment within 30 days after a termination of employment, but in no event later than the
end of the Executive’s taxable year next following the Executive’s taxable year in which the
Executive remits the related taxes. It is intended that the Executive shall not suffer any loss or
expense resulting from the assessment of any Excise Tax or STAAR’s reimbursement to the Executive
for payment of any such Excise Tax.



(b) For purposes of determining whether any of the Total Benefits will be subject to an Excise
Tax and the amount of such Excise Tax, (i) any other payment or benefits received or to be received
by the Executive in connection with a Change in Control of STAAR or the Executive’s termination of
employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or
agreement with STAAR, any person whose actions result in a Change in Control or any person
affiliated with STAAR or such person) shall be treated as “parachute payments” within the meaning
of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of
Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion
of tax counsel selected by the Auditors and acceptable to the Executive such other payments or
benefits (in whole or in part) do not constitute parachute payments, or such excess parachute
payments (in whole or in part) represent reasonable compensation for services actually rendered
within the meaning of Section 280G(b)(4) of the Code, (ii) the amount of the Total Benefits, which
shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount
of the Total Benefits or (B) the amount of excess parachute payments within the meaning of
Sections 280G(b)(1) and (4) of the Code, after applying clause (i), above, and (iii) the value of
any non-cash benefits or any deferred payment or benefit shall be determined by STAAR’s independent
auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.



(c) For purposes of determining the amount of the Gross-Up Payment, the Executive shall be
deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the
calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the
highest marginal rates of taxation in the state and locality of the Executive’s residence on the
date of the Executive’s termination, net of the maximum reduction in federal income taxes which
could be obtained from deduction of such state and local taxes.



(d) In the event that the Excise Tax is subsequently determined to be less than the amount
taken into account hereunder at the time of the Executive’s termination, the Executive shall repay
to STAAR, at the time that the amount of such reduction in Excise Tax is finally determined, the
portion of the Gross-Up Payment attributable to such reduction. In the event that the Excise Tax
is determined to exceed the amount taken into account hereunder at the time of such termination
(including by reason of any payment the existence or amount of which cannot be determined at the
time of the Gross-Up Payment), STAAR shall make an additional Gross-Up Payment in respect of such
excess at the time that the amount of such excess is finally determined, but in no event later than
the end of the Executive’s taxable year next following the Executive’s taxable year in which the
taxes that are the subject of the audit or litigation are remitted to the taxing authority.



(e) Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to
a Gross-Up Payment, but that the Total Benefits would not be subject to the Excise Tax if the Total
Benefits were reduced by an amount that is less than 10% of the Total Benefits that would be
treated as “parachute payments” under Section 280G of the Code, then the amount payable to the
Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that
could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap"), and
no Gross-Up Payment shall be made to the Executive. The reduction of the amounts payable
hereunder, if applicable, shall be made by reducing any cash payments. For purposes of reducing
the Total Benefits to the Safe Harbor Cap, only amounts payable under this Agreement (and no other
payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in
a reduction of the Total Benefits to the Safe Harbor Cap, no amounts payable under this Agreement
shall be reduced pursuant to this provision.



ARTICLE 7

Assignment of Inventions




The Executive acknowledges that any inventions, discoveries or trade secrets, whether
patentable or not, made or found by the Executive in the scope of the Executive’s employment with
STAAR are “work for hire” and constitute property of STAAR, and that any rights therein now held or
hereafter acquired by the Executive individually or in any capacity are hereby transferred and
assigned to STAAR. The Executive agrees to execute and deliver any confirmatory assignments,
documents or instruments of any nature necessary to carry out the intent of this Article 7
when requested by STAAR without further compensation therefor, whether or not the Executive is at
the time employed by STAAR. Provided, however, notwithstanding the foregoing, the Executive will
not be required to assign the Executive’s rights in any invention which qualifies fully under the
provisions of Section 2870(a) of the California Labor Code, which provides, in pertinent part, that
the requirement to assign “will not apply to any invention that the employee developed entirely on
his or her own time without using employer’s equipment, supplies, facilities or trade secret
information except for those inventions that either:




	 	 	 	“(i) Relate at the time of conception or reduction to
practice of the invention to the employer’s business, or actual or
demonstrably anticipated research or development of the employer; or






	 	 	 	“(ii) Result from any work performed by the employee for the
employer.”





The Executive understands that the Executive bears the full burden of proving to STAAR that an
invention qualifies fully under Section 2870(a). By signing this Agreement, the Executive
acknowledges receipt of a copy of this Agreement and of written notification of the provisions of
Section 2870.



ARTICLE 8

Restrictive Covenants




8.1 Confidentiality Covenant. The Executive hereby agrees that the Executive shall not,
directly or indirectly, disclose or make available to any person, firm, corporation, association or
other entity for any reason or purpose whatsoever, any Confidential Information (as hereinafter
defined). For a period of five (5) years after the termination of this Agreement, the Executive
agrees that, upon termination of the Executive’s employment with STAAR, all Confidential
Information in the Executive’s possession that is in written or other tangible form (together with
all copies or duplicates thereof, including computer files) shall be returned to STAAR and shall
not be retained by the Executive or furnished to any third party, in any form except as provided
herein; provided, however, that the Executive shall not be obligated to treat as confidential, or
return to STAAR copies of any Confidential Information that (i) was publicly known at the time of
disclosure to the Executive, (ii) becomes publicly known or available thereafter other than by any
means in violation of this Agreement or any other duty owed to STAAR by any person or entity, or
(iii) is lawfully disclosed to the Executive by a third party. As used in this Agreement, the term
“Confidential Information” means information disclosed to the Executive or known by the Executive
as a consequence of or through the Executive’s relationship with STAAR, about the products,
research and development efforts, regulatory efforts, manufacturing processes, customers,
employees, business methods, public relations methods, organization, procedures or finances,
including, without limitation, information of or relating to customer lists, of STAAR and its
affiliates.



8.2 Solicitation of Employees. The Executive hereby agrees that during the term of the
Executive’s employment and for one (1) year thereafter, the Executive shall not, either on the
Executive’s own account or jointly with or as a manager, agent, officer, employee, consultant,
partner, joint venturer, owner or stockholder or otherwise on behalf of any other person, firm or
corporation, directly or indirectly solicit or attempt to solicit away from STAAR any of its
officers or employees or any person who, on or during the six (6) months immediately preceding the
date of such solicitation or offer, is or was an officer or employee of STAAR, or inducing or
attempt to induce an employee, a consultant, or an independent contractor to sever or modify that
person’s relationship with STAAR; provided, however, that a general advertisement to which an
employee of STAAR responds shall in no event be deemed to result in a breach of this
Section 8.2.



8.3 Unfair Competition. The Executive acknowledges that the information listed in Section 8.1
above, as well as other information regarding STAAR’s customers and business, is confidential and
constitutes trade secret, commercially sensitive, and proprietary information. While employed by
STAAR, and following separation of employment from STAAR, Executive will not, directly or
indirectly, use this or any other trade secret information to solicit any of STAAR’s customers or
use STAAR’s trade secret information to negotiate with any of STAAR’s customers, or to disrupt,
damage, impair, or interfere with STAAR’s business in any manner, including, without limitation, by
disrupting its relationships with customers, agents, representatives, vendors, or otherwise.
Executive acknowledges that STAAR’s business is international in scope and, consequently, the
restriction on the Executive’s use of trade secrets shall apply without regard to geography.
Subject to the limitations noted herein, the Executive is not, however, restricted from being
employed by or engaged in any type of business following the termination of the Executive’s
employment relationship with STAAR.



8.4 Enforcement.



(a) STAAR and the Executive intend that the provisions of this Article 8 shall be
fully enforceable as set forth herein. To the extent that any court of competent jurisdiction
finds that any such provision is enforceable by reason of its duration or scope, STAAR and the
Executive agree that it shall be enforced insofar as it may be enforced within the limits of the
law of that jurisdiction, but that the Agreement as a whole shall be unaffected elsewhere.



(b) The Executive agrees that it would be difficult to compensate STAAR fully for damages for
any violation of the provisions of this Agreement, including, without limitation, the provisions of
this Article 8. Accordingly, the Executive specifically agrees that STAAR and its
successors and assigns shall be entitled to temporary and permanent injunctive relief to enforce
the provisions of this Agreement. This provision with respect to injunctive relief shall not,
however, diminish the right of STAAR to claim and recover damages in addition to injunctive relief.



(c) If the Executive breaches any provision of Article 8, the rights of the Executive
(or the Executive’s estate) to a benefit under the Agreement, and the rights of a surviving spouse
or any other person to a benefit under the Agreement, shall be forfeited, unless the Board
determines that such activity is not detrimental to the best interests of STAAR and its affiliates.
Such forfeiture shall be in addition to any other remedy of STAAR under the Agreement or at law
and in equity with respect to such breach. However, if the Executive ceases such activity and
notifies the Board of this action, the Executive’s (or the Executive’s estate’s) right to receive a
benefit, and any right of a surviving spouse or any other person to a benefit, may be restored
within sixty (60) days of said notification, unless the Board in its sole discretion determines
that the prior activity has caused serious injury to STAAR and its affiliates, which determination
shall be final and conclusive.



ARTICLE 9

General Provisions




9.1 Release of Claims. Notwithstanding anything else in this Agreement, the delivery by the
executive of a general release of claims, both known and unknown, in the form required by STAAR
shall be a condition precedent to any obligation of STAAR to provide any payments or other benefits
pursuant to Article 5, and the Executive acknowledges that any such payments will be made
or benefits will be given in consideration of such a release. If applicable law imposes any
non-waivable waiting period or revocation right on the effectiveness of such a release, the
condition described in the preceding sentence shall not be deemed satisfied until the expiration of
such waiting period or revocation right.



9.2 Entire Agreement and Modification. This Agreement, together with any indemnification
agreements or equity award agreements entered into prior to or contemporaneously with this
Agreement, constitutes the entire agreement between the parties relating to the employment of the
Executive by STAAR, and there are no representations, warranties or commitments, other than those
set forth herein, that relate to such subject matter. This Agreement may be amended or modified
only by an instrument in writing executed by all of the parties hereto.



9.3 Successors.



(a) This Agreement is personal to the Executive, and without the prior written consent of
STAAR shall not be assignable by the Executive other than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive’s
legal representatives.



(b) The rights and obligations of STAAR under this Agreement shall inure to the benefit of and
shall be binding upon the successors and assigns of STAAR.



9.4 No Waiver. No waiver, by conduct or otherwise, by any party of any term, provision, or
condition of this Agreement, shall be deemed or construed as a further or continuing waiver of any
such term, provision, or condition nor as a waiver of a similar or dissimilar condition or
provision at the same time or at any prior or subsequent time.



9.5 Remedies Not Exclusive. No remedy conferred by any of the specific provisions of this
Agreement is intended to be exclusive of any other remedy, except as expressly provided in this
Agreement, and each and every remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing in law or in equity or by statute or otherwise.
No failure by any party to exercise, and no delay in exercising, any rights shall be construed or
deemed to be a waiver thereof, nor shall any single or partial exercise by any party preclude any
other or future exercise thereof or the exercise of any other right.



9.6 Notices. Any notice or communications required or permitted to be given to the parties
hereto shall be delivered personally, sent via facsimile or via an overnight courier service or be
sent by United States registered or certified mail, postage prepaid and return receipt requested,
and addressed or delivered as follows, or as such other addresses the party addressed may have
substituted by notice pursuant to this Section:



(a) If to STAAR:




STAAR Surgical Company




1911 Walker Ave.




Monrovia, CA 91016




Facsimile: 626-358-3049




Attention: Chief Executive Officer



(b) If to the Executive:




Barry Caldwell




1911 Walker Ave.




Monrovia, CA 91016




Facsimile: 626-358-3049



Such notices or communications shall be deemed given upon delivery or, if earlier, one (1) day
after being sent by overnight courier or three (3) days after being mailed by registered or
certified mail, as provided above.



9.7 Governing Law. This Agreement is made and entered into in the State of California, and
shall be governed by the laws of California, without giving effect to the principles of conflict of
laws thereof.



9.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which shall together constitute one Agreement.



9.9 Headings. The headings of this Agreement are inserted for convenience and do not
constitute a part hereof.



9.10 Severability. In case any one or more of the provisions contained in this Agreement (or
any portion thereof) shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provision of
this Agreement (or the remainder of such provision if a portion is held invalid, illegal or
unenforceable), but this Agreement shall be construed as if such invalid, illegal or unenforceable
provision (or portion thereof) had never been contained herein and there shall be deemed
substituted for such invalid, illegal or unenforceable provision such other provision as will most
nearly accomplish the intent of the parties to the extent permitted by the applicable law. In case
this Agreement, or any one or more of the provisions hereof, shall be held to be invalid, illegal
or unenforceable within any governmental jurisdiction or subdivision thereof, this Agreement or any
such provision thereof shall not as a consequence thereof be deemed to be invalid, illegal or
unenforceable in any other governmental jurisdiction or subdivision thereof.



9.11 Survival. The Executive’s obligations under Articles 7 and 8 shall
survive the termination of Executive’s employment and the termination of this Agreement.



9.12 Dispute Resolution.




(a) Arbitration. Executive and STAAR agree that any and all disputes, claims or
controversies arising out of or related to this Agreement, the employment relationship between the
parties, the termination of this Agreement or the termination of the employment relationship, that
are not resolved by the parties’ mutual agreement shall be resolved by final and binding
arbitration by a neutral arbitrator, subject to and consistent with applicable law. Arbitration
shall be the exclusive means of resolving the claim, dispute or controversy regardless of whether
it is based in tort, contract, statute, equity or other laws. The Executive and STAAR agree that
this agreement to arbitrate is subject to and enforceable under the provisions of the Federal
Arbitration Act (the “FAA”), 9 U.S.C. § 1, et seq., and to the extent it does not
interfere with the enforceability of this agreement to arbitrate, the California Arbitration Act
(the “CAA”), Cal. Code Civ. Proc. § 1280, et seq. This agreement to arbitrate
shall be mutually binding on all parties.




(b) The Arbitration shall be conducted in accordance with the applicable rules of JAMS, or
another arbitration service mutually agreed to by the parties. The arbitration will be held in
Los Angeles, California.



9.13 Section 409A of the Code. This Agreement is intended to comply with the requirements of
Section 409A of the Code. In the event this Agreement or any benefit paid to the Executive
hereunder is deemed to be subject to Section 409A of the Code, the Executive consents to STAAR
adopting such conforming amendments as STAAR deems necessary, in its reasonable discretion, to
comply with Section 409A of the Code and avoid the imposition of taxes under Section 409A.
Notwithstanding anything herein to the contrary, any severance payments under this Agreement is
intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury
Regulations made upon an involuntary termination from service and payable pursuant to Section
1.409A-1(b)(9)(iii) of the Treasury Regulations, to the maximum extent permitted by said provision,
with any excess amount being regarded as subject to the distribution requirements of Section
409A(a)(2)(A) of the Code. Payment of any excess amount described in the foregoing sentence that
is subject to the distribution requirements of Section 409A(a)(2)(A) of the Code shall be paid in a
single lump sum payment, without interest, on the earlier of (a) the first business day of the 7th
month following the Executive’s separation from service, or (b) the Executive’s death.



9.14 Attorneys’ Fees. If any legal action or other proceeding is brought for the enforcement
of the Agreement, or because of an alleged dispute, breach or default in connection with any of the
provisions of the Agreement, the successful or prevailing party shall be entitled to recover
attorneys’ fees and other expenses and costs incurred in that action or proceeding, in addition to
any other relief that may be granted.



9.15 Executive’s Acknowledgment. the Executive acknowledges (a) that the Executive has
consulted with or has had the opportunity to consult with independent counsel of the Executive’s
own choice concerning this Agreement and has been advised to do so by STAAR, and (b) that the
Executive has read and understands the Agreement, is fully aware of its legal effect, and has
entered into it freely based on the Executive’s own judgment.



The next page is the signature page.






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IN WITNESS WHEREOF, the parties have executed this Amended and Restated Executive Employment
Agreement on the date first above written.



	 	 	 
	STAAR Surgical Company

	By:

	 	/s/ Charles Kaufman
	
 
	 	 






	 	 	 
	 	 



                       Charles Kaufman                  }
                       Vice President and Secretary     }
                       EXECUTIVE                        }
                       By:              Barry G. Caldwell

Charles Kaufman

	 	 	Vice President and Secretary
	 	 	EXECUTIVE
	 	 	By: Barry G. Caldwell






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