EXHIBIT 10.2
FORM OF
TRANSITIONAL SERVICES AGREEMENT
BY AND BETWEEN
ALLERGAN, INC.
AND
ADVANCED MEDICAL OPTICS, INC
DATED AS OF [__________________ __], 2002
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS......................................................................................1
ARTICLE 2. TRANSITION SERVICE SCHEDULES.....................................................................2
ARTICLE 3. SERVICES.........................................................................................2
3.1 Services Generally..................................................................2
3.2 Service Boundaries..................................................................3
3.3 Impracticability....................................................................3
3.4 Additional Resources................................................................3
ARTICLE 4. TERM.............................................................................................3
ARTICLE 5. COMPENSATION.....................................................................................3
5.1 Charges for Services................................................................3
5.2 Payment Terms.......................................................................4
5.3 Performance Under Ancillary Agreements..............................................4
5.4 Error Correction; True-Ups; Accounting..............................................4
5.5 Pricing Adjustments.................................................................4
ARTICLE 6. GENERAL OBLIGATIONS; STANDARD OF CARE............................................................4
6.1 Performance Metrics: Allergan.......................................................4
6.2 Performance Metrics: AMO............................................................5
6.3 Disclaimer of Warranties............................................................5
6.4 Transitional Nature of Services; Changes............................................5
6.5 Responsibility for Errors; Delays...................................................5
6.6 Good Faith Cooperation; Consents....................................................5
6.7 Alternatives........................................................................6
ARTICLE 7. TERMINATION......................................................................................6
7.1 Termination.........................................................................6
7.2 Survival............................................................................6
7.3 User IDs, Passwords.................................................................6
ARTICLE 8. RELATIONSHIP BETWEEN THE PARTIES.................................................................6
ARTICLE 9. SUBCONTRACTORS...................................................................................7
ARTICLE 10. INTELLECTUAL PROPERTY...........................................................................7
10.1 Allocation of Rights by Ancillary Agreements........................................7
10.2 Existing Ownership Rights Unaffected................................................7
10.3 Cross License to Preexisting Works..................................................7
ARTICLE 11. NO OBLIGATIONS..................................................................................7
ARTICLE 12. CONFIDENTIALITY.................................................................................8
i
ARTICLE 13. LIMITATION OF LIABILITY.........................................................................8
ARTICLE 14. DISPUTE RESOLUTION..............................................................................8
ARTICLE 15. MISCELLANEOUS...................................................................................8
15.1 Counterparts........................................................................8
15.2 Entire Agreement....................................................................8
15.3 Corporate Power.....................................................................8
15.4 Signatures..........................................................................9
15.5 Governing Law.......................................................................9
15.6 Assignability.......................................................................9
15.7 Third Party Beneficiaries...........................................................9
15.8 Notices.............................................................................9
15.9 Severability.......................................................................10
15.10 Force Majeure......................................................................10
15.11 Headings...........................................................................10
15.12 Survival of Covenants..............................................................10
15.13 Waivers of Default.................................................................10
15.14 Amendments.........................................................................10
15.15 Interpretation.....................................................................11
Annex A Form of Transition Service Schedule to Transitional Services Agreement
List of Transition Service Schedules as of the Distribution Date
Transition Service Schedule # Functional Area
1A..........................................................Facilities Sharing Services Allergan to AMO
1B..........................................................Facilities Sharing Services AMO to Allergan
1C..........................................................General Administrative Services
2...........................................................Toxicology and Vivarium Research & Development Services
3...........................................................Research & Development Support Services
4...........................................................Shared Service Centers
5...........................................................Information Systems
6...........................................................Retail Channel Support & Product Promotion
7...........................................................World Wide Specifications; World Wide Operations
8...........................................................Legal
ii
TRANSITIONAL SERVICES AGREEMENT
This TRANSITIONAL SERVICES AGREEMENT is dated as of
__________________ __, 2002, between ALLERGAN, INC., a Delaware corporation
("Allergan"), and ADVANCED MEDICAL OPTICS, INC., a Delaware corporation ("AMO").
ARTICLE 1
DEFINITIONS
For the purpose of this Agreement, the following capitalized
terms shall have the following meanings. Other capitalized terms defined
elsewhere in this Agreement shall have the respective meanings assigned to them
at the location of their definition. Capitalized terms used in this Agreement
without definition which are defined in the Contribution and Distribution
Agreement shall have the meaning ascribed thereto in the Contribution and
Distribution Agreement.
"Allergan Group" shall the have the meaning set forth in the
Contribution and Distribution Agreement.
"AMO Group" shall the have the meaning set forth in the
Contribution and Distribution Agreement.
"Ancillary Agreements" shall the have the meaning set forth in
the Contribution and Distribution Agreement.
"Confidential Information" shall have the meaning set forth in
the Contribution and Distribution Agreement.
"Contribution" shall the have the meaning set forth in the
Contribution and Distribution Agreement.
"Contribution and Distribution Agreement" shall mean that
certain Contribution and Distribution Agreement between Allergan and AMO.
"Distribution" shall the have the meaning set forth in the
Contribution and Distribution Agreement.
"Distribution Date" shall have the meaning set forth in the
Contribution and Distribution Agreement.
"Impracticable" shall have the meaning set forth in Section
3.3.
"Person" shall the have the meaning set forth in the
Contribution and Distribution Agreement.
"Prime Rate" means the rate which The Chase Manhattan Bank (or
any successor thereto or other major money center commercial bank agreed to by
the parties hereto) announces from time to time as its prime lending rate in the
United States, as in effect from time to time.
"Service(s)" shall have the meaning set forth in Section 3.1.
"Service Provider" means Allergan or a member of the Allergan
Group when it is providing a Service to AMO or a member of the AMO Group
hereunder in accordance with a Transition Service Schedule, and AMO or a member
of the AMO Group when it is providing a Service to Allergan or a member of the
Allergan Group hereunder in accordance with a Transition Service Schedule.
"Service Recipient" means AMO or a member of the AMO Group
when it is receiving a Service from Allergan or a member of the Allergan Group
hereunder in accordance with a Transition Service Schedule, and Allergan or a
member of the Allergan Group when it is receiving a Service from AMO or a member
of the AMO Group hereunder in accordance with a Transition Service Schedule.
"Subsidiary" shall have the meaning set forth in the
Contribution and Distribution Agreement.
ARTICLE 2
TRANSITION SERVICE SCHEDULES
This Agreement will govern individual transitional services as
requested by AMO and provided by Allergan, the details of which are set forth in
the Transition Service Schedules attached to and made a part of this Agreement.
This Agreement will also govern individual transitional services as requested by
Allergan and provided by AMO, the details of which are set forth in the
Transition Service Schedules attached to and made a part of this Agreement. Each
Service shall be covered by this Agreement upon execution of a transition
service schedule in the form attached hereto (each transition service schedule,
a "Transition Service Schedule").
For each Service, the parties shall set forth in a Transition
Service Schedule substantially in the form of Annex A hereto, among other
things, (i) the time period during which the Service will be provided if
different from the term of this Agreement determined pursuant to Article 4
hereof; (ii) a summary of the Service to be provided; and (iii) the method for
determining the charge, if any, for the Service and any other terms applicable
thereto on the Transition Service Schedule. Obligations regarding each
Transition Service Schedule shall be effective upon the later of execution of
this Agreement or of the applicable Transition Service Schedule. This Agreement
and all the Transition Service Schedules shall be defined as the "Agreement" and
incorporated herein wherever reference to it is made.
ARTICLE 3.
SERVICES
3.1 Services Generally. Except as otherwise provided herein,
for the term determined pursuant to Article 4 hereof, Allergan shall provide or
cause to be provided to AMO (or AMO shall provide, or cause to be provided to
Allergan) the service(s) described in the Transition Service Schedule(s)
attached hereto. The service(s) described on a single Transition Service
Schedule shall be referred to herein as a "Service." Collectively, the services
described on all the Transition Service Schedules shall be referred to herein as
"Services."
2
3.2 Service Boundaries. Except as otherwise provided in a
Transition Service Schedule for a specific service: (i) a Service Provider shall
be required to provide the Services only to the extent and only at the locations
such Services are being provided by the Service Provider for the Service
Recipient immediately prior to the Distribution Date; and (ii) the services will
be available only for purposes of conducting the business of the Service
Recipient substantially in the manner it was conducted prior to the Distribution
Date.
3.3 Impracticability. A Service Provider shall not be required
to provide any Service to the extent the performance of such Service becomes
"Impracticable" as a result of a cause or causes outside the reasonable control
of the Service Provider including unfeasible technological requirements, or to
the extent the performance of such Services would require the Service Provider
to violate any applicable laws, rules or regulations or would result in the
breach of any software license or other applicable contract.
3.4 Additional Resources. Except as provided in a Transition
Service Schedule for a specific service, in providing the Services, a Service
Provider shall not be obligated to: (i) hire any additional employees; (ii)
maintain the employment of any specific employee; (iii) purchase, lease or
license any additional facilities, equipment or software; or (iv) pay any costs
related to the transfer or conversion of the Service Recipient's data to the
Service Recipient or any alternate supplier of Services.
ARTICLE 4.
TERM
The term of this Agreement shall commence on the Distribution
Date and shall remain in effect until one (1) year after the Distribution Date
(the "Expiration Date"), unless earlier terminated under Article 7. The parties
shall be deemed to have extended this Agreement with respect to a specific
Service if the Transition Service Schedule for such Service specifies a
completion date beyond the aforementioned Expiration Date. The parties may agree
on an earlier expiration date respecting a specific Service by specifying such
date on the Transition Service Schedule for that Service. Services shall be
provided up to and including the date set forth in the applicable Transition
Service Schedule, subject to earlier termination as provided herein.
ARTICLE 5.
COMPENSATION
5.1 Charges for Services. The Service Recipient shall pay the
Service Provider the charges, if any, set forth on the Transition Service
Schedules for each of the Services listed therein as adjusted, from time to
time, in accordance with the processes and procedures established under Section
5.4 and Section 5.5 hereof. Unless specifically indicated otherwise on a
Transition Service Schedule, such fees shall include the direct and indirect
costs of providing the Services and shall be calculated by using the same
procedures used by Allergan prior to the Distribution Date. If there is any
inconsistency between the Transition Service Schedule and this Section 5.1, the
terms of the Transition Service Schedule shall govern. The parties also intend
for charges to be easy to administer and justify and, therefore, they hereby
acknowledge it may be counterproductive to try to recover every cost, charge or
expense,
3
particularly those that are insignificant or de minimus. The parties shall use
good faith efforts to discuss any situation in which the actual cost for a
Service exceeds the charge, if any, set forth on a Transition Service Schedule
for a particular Service; provided, however, that the incurrence of charges in
excess of any such cost on such Transition Service Schedule shall not justify
stopping the provision of, or payment for, Services under this Agreement.
5.2 Payment Terms. The Service Provider shall xxxx the Service
Recipient monthly for all charges pursuant to this Agreement. Such bills shall
be accompanied by reasonable documentation or other reasonable explanation
supporting such charges. The Service Recipient shall pay the Service Provider
for all Services provided hereunder within forty-five (45) days after receipt of
an invoice therefor. Late payments shall bear interest at the lesser of the
Prime Rate plus 2% or the maximum rate allowed by law.
5.3 Performance Under Ancillary Agreements. Notwithstanding
anything to the contrary contained herein, a Service Recipient shall not be
charged under this Agreement for any obligations that are specifically required
to be performed under the Contribution and Distribution Agreement or any other
Ancillary Agreement and any such other obligations shall be performed and
charged for (if applicable) in accordance with the terms of the Contribution and
Distribution Agreement or such other Ancillary Agreement.
5.4 Error Correction; True-Ups; Accounting. The parties shall
agree to develop mutually acceptable reasonable processes and procedures for
conducting internal audits and making adjustments to charges as a result of the
movement of employees and functions between parties, the discovery of errors or
omissions in charges, as well as a true-up of amounts owed. In no event shall
such processes and procedures extend beyond two (2) years after completion of a
Service.
5.5 Pricing Adjustments. If in order to comply with any
non-U.S. legal requirement, some of the services provided outside the U.S. need
to be performed on a basis other than cost, adjustments shall be made between
the parties to make the pricing for such services consistent with the intention
of this Agreement.
ARTICLE 6.
GENERAL OBLIGATIONS; STANDARD OF CARE
6.1 Performance Metrics: Allergan. Subject to Section 3.2,
Section 3.4 and any other terms and conditions of this Agreement, Allergan shall
maintain sufficient resources to perform its obligations hereunder. Specific
performance metrics for Allergan for a specific Service may be set forth in the
corresponding Transition Service Schedule. Where none is set forth, Allergan
shall use reasonable efforts to provide Services in accordance with the
policies, procedures and practices in effect before the Distribution Date and
shall exercise the same care and skill as Allergan exercises in performing
similar services for itself. In addition, to the extent within the possession
and control of Allergan, Allergan shall provide AMO with information and
documentation sufficient for AMO to perform the Services it is obligated to
provide hereunder as they were performed before the Distribution Date and shall
make available, as reasonably requested by AMO, sufficient resources and timely
decisions, approvals and acceptances in order that AMO may accomplish its
obligations hereunder in a timely manner.
4
6.2 Performance Metrics: AMO. Subject to Section 3.2, Section
3.4 and any other terms and conditions of this Agreement, AMO shall maintain
sufficient resources to perform its obligations hereunder. Specific performance
metrics for AMO for a specific Service may be set forth in the corresponding
Transition Service Schedule. Where none is set forth, AMO shall use reasonable
efforts to provide Services in accordance with Allergan's policies, procedures
and practices in effect before the Distribution Date and shall exercise the same
care and skill as AMO exercises in performing similar services for itself. In
addition, to the extent within the possession and control of AMO, AMO shall
provide Allergan with information and documentation sufficient for Allergan to
perform the Services it is obligated to provide hereunder as they were performed
before the Distribution Date and shall make available, as reasonably requested
by Allergan, sufficient resources and timely decisions, approvals and
acceptances in order that Allergan may accomplish its obligations hereunder in a
timely manner.
6.3 Disclaimer of Warranties. NEITHER ALLERGAN NOR AMO MAKES
ANY WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH
RESPECT TO THE SERVICES OR OTHER DELIVERABLES PROVIDED BY IT HEREUNDER.
6.4 Transitional Nature of Services; Changes. The parties
acknowledge the transitional nature of the Services and that a Service Provider
may make changes from time to time in the manner of performing the Services if
the Service Provider is making similar changes in performing similar services
for itself and if the Service Provider furnishes to the Service Recipient sixty
(60) days written notice regarding such changes.
6.5 Responsibility for Errors; Delays. Except in the case of a
Service Provider's gross negligence or willful misconduct, a Service Provider's
sole responsibility to a Service Recipient:
(a) for errors or omissions in Services, shall be to
furnish correct information, payment and/or adjustment in the Services, at no
additional cost or expense to the Service Recipient; provided, the Service
Recipient must promptly advise the Service Provider of any such error or
omission of which it becomes aware after having used reasonable efforts to
detect any such errors or omissions in accordance with the standard of care set
forth in Section 6.1; and
(b) for failure to deliver any service because of
Impracticability, shall be to use reasonable efforts, subject to Section 3.3, to
make the Services available and/or to resume performing the Services as promptly
as reasonably practicable.
6.6 Good Faith Cooperation; Consents. The parties will use
good faith efforts to cooperate with each other in all matters relating to the
provision and receipt of Services. Such cooperation shall include exchanging
information, performing true-ups and adjustments, and obtaining all third party
consents, licenses, sublicenses or approvals necessary to permit each party to
perform its obligations hereunder (including by way of example, not by way of
limitation, rights to use third party software needed for the performance of
Services). The costs of obtaining such third party consents, licenses,
sublicenses or approvals shall be borne by the
5
Service Recipient. The parties will maintain in accordance with its standard
document retention procedures, documentation supporting the information relevant
to cost calculations contained in the Transition Service Schedules and cooperate
with each other in making such information available as needed in the event of a
tax audit, whether in the United States or any other country.
6.7 Alternatives. If a Service Provider reasonably believes it
is unable to provide any service because of a failure to obtain necessary
consents, licenses, sublicenses or approvals pursuant to Section 6.6 or because
of Impracticability, the parties shall cooperate to determine the best
alternative approach. Until such alternative approach is found or the problem
otherwise resolved to the satisfaction of the parties, the Service Provider
shall use reasonable efforts subject to Section 3.3 and Section 3.4, to continue
providing the Service. To the extent an agreed upon alternative approach
requires payment above and beyond that which is included in the Service
Provider's charge for the service in question, the parties shall share equally
in making any such payment unless they otherwise agree in writing.
ARTICLE 7.
TERMINATION
7.1 Termination. A Service Recipient may terminate this
Agreement, either with respect to all or with respect to any one or more of the
Services provided to the Service Recipient hereunder, for any reason or for no
reason, at any time upon sixty (60) days prior written notice to the Service
Provider, unless the specific Transition Service Schedule requires otherwise. In
addition, subject to the provisions of Article 14 below, either party may
terminate this Agreement with respect to a specific Service if the other party
materially breaches a material provision with regard to that particular Service
and does not cure such breach (or does not take reasonable steps required under
the circumstances to cure such breach going forward) within sixty (60) days
after being given notice of the breach; provided, however, that the
non-terminating party may request that the parties engage in a dispute
resolution negotiation as specified in Article 14 below prior to termination for
breach.
7.2 Survival. Notwithstanding the foregoing, in the event of
any termination with respect to one or more, but less than all Services, this
Agreement shall continue in full force and effect with respect to any Services
not terminated.
7.3 User IDs, Passwords. The parties shall use good faith
efforts at the termination or expiration of this Agreement or any specific
Service hereto to ensure that all applicable user IDs and passwords are
cancelled.
ARTICLE 8.
RELATIONSHIP BETWEEN THE PARTIES
The relationship between the parties established under this
Agreement is that of independent contractors and neither party is an employee,
agent, partner, or joint venturer of or with the other. Each Service Provider
will be solely responsible for any employment-related taxes, insurance premiums
or other employment benefits respecting its personnel's performance of Services
under this Agreement. Each Service Recipient agrees to grant the Service
Provider personnel access to sites, systems and information (subject to the
provisions of confidentiality in
6
Article 12 below) as necessary for the Service Provider to perform its
obligations hereunder. Each Service Provider agrees to cause its personnel to
agree to obey any and all security regulations and other published policies of
the Service Recipient.
ARTICLE 9.
SUBCONTRACTORS
A Service Provider may engage a "Subcontractor" to perform all
or any portion of the Service Provider's duties under this Agreement, provided
that any such Subcontractor agrees in writing to be bound by confidentiality
obligations at least as protective as the terms of Section 7.08 of the
Contribution and Distribution Agreement regarding confidentiality, and provided
further that the Service Provider remains responsible for the performance of
such Subcontractor. As used in this Agreement, "Subcontractor" will mean any
individual, partnership, corporation, firm, association, unincorporated
organization, joint venture, trust or other entity engaged to perform hereunder.
ARTICLE 10.
INTELLECTUAL PROPERTY
10.1 Allocation of Rights by Ancillary Agreements. This
Agreement and the performance of this Agreement will not affect the ownership of
any patent, trademark or copyright or other intellectual property rights
allocated in the Ancillary Agreements.
10.2 Existing Ownership Rights Unaffected. Neither party will
gain, by virtue of this Agreement, any rights of ownership of copyrights,
patents, trade secrets, trademarks or any other intellectual property rights
owned by the other.
10.3 Cross License to Preexisting Works. Allergan grants AMO a
non-exclusive, worldwide, royalty-free license to use, copy, and make derivative
works of, distribute, display, perform and transmit Allergan's pre-existing
copyrighted works or other intellectual property rights solely to the extent
necessary to perform its obligations under this Agreement. AMO grants Allergan a
non-exclusive, worldwide, royalty-free license to use, copy, and make derivative
works of, distribute, display, perform and transmit AMO's pre-existing
copyrighted works or other intellectual property rights solely to the extent
necessary to perform its obligations under this Agreement.
ARTICLE 11.
NO OBLIGATIONS
NEITHER PARTY ASSUMES ANY RESPONSIBILITY OR OBLIGATIONS
WHATSOEVER, OTHER THAN THE RESPONSIBILITIES AND OBLIGATIONS EXPRESSLY SET FORTH
IN THIS AGREEMENT (INCLUDING THE EXHIBITS AND SCHEDULES HERETO) OR A SEPARATE
WRITTEN AGREEMENT BETWEEN THE PARTIES.
7
ARTICLE 12.
CONFIDENTIALITY
The terms of the Confidentiality provision set forth in
Section 7.08 of the Contribution and Distribution Agreement shall apply to any
and all Confidential Information disclosed in the course of the parties'
interactions under this Agreement.
ARTICLE 13.
LIMITATION OF LIABILITY
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST
PROFITS, LOSS OF DATA, LOSS OF USE, COST OF COVER, BUSINESS INTERRUPTION OR
OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER
CAUSED, UNDER ANY THEORY OF LIABILITY, ARISING FROM THE PERFORMANCE OF, OR
RELATING TO, THIS AGREEMENT.
ARTICLE 14.
DISPUTE RESOLUTION
If a dispute, controversy or claim arises under this Agreement
it shall be settled in accordance with the provisions of Article VIII of the
Contribution and Distribution Agreement.
ARTICLE 15.
MISCELLANEOUS
15.1 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party.
15.2 Entire Agreement. This Agreement, the Contribution and
Distribution Agreement, the other Ancillary Agreements, the exhibits, schedules
and appendices hereto and thereto and the specific agreements contemplated
herein or thereby contain the entire agreement between the parties with respect
to the subject matter hereof and supersede all previous agreements,
negotiations, discussions, writings, understandings, commitments and
conversations with respect to such subject matter. No agreements or
understandings exist between the parties other than those set forth or referred
to herein or therein.
15.3 Corporate Power. Allergan represents on behalf of itself
and each other member of the Allergan Group, and AMO represents on behalf of
itself and each other member of the AMO Group, as follows:
(a) each such Person has the requisite corporate or
other power and authority and has taken all corporate or other action necessary
in order to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby; and
8
(b) this Agreement has been duly executed and
delivered by it and constitutes a valid and binding agreement of it enforceable
in accordance with the terms thereof.
15.4 Signatures. Each party hereto acknowledges that it and
each other party hereto is executing certain of the Transition Services
Schedules by facsimile, stamp or mechanical signature. Each party hereto
expressly adopts and confirms each such facsimile, stamp or mechanical signature
made in its respective name as if it were a manual signature, agrees that it
will not assert that any such signature is not adequate to bind such party to
the same extent as if it were signed manually and agrees that at the reasonable
request of any other party hereto at any time it will as promptly as reasonably
practicable cause each such Transition Services Schedule to be manually executed
(any such execution to be as of the date of the initial date thereof).
15.5 Governing Law. This Agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of California
irrespective of the choice of laws principles of the State of California, as to
all matters, including matters of validity, construction, effect,
enforceability, performance and remedies.
15.6 Assignability. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and thereto, respectively, and their
respective successors and assigns; provided, however, that no party hereto or
thereto may assign its respective rights or delegate its respective obligations
under this Agreement without the express prior written consent of the other
parties hereto or thereto.
15.7 Third Party Beneficiaries. The provisions of this
Agreement are solely for the benefit of the parties hereto and are not intended
to confer upon any Person, except the parties hereto, any rights or remedies
hereunder. There are no third party beneficiaries of this Agreement, and this
Agreement shall not provide any third Person with any remedy, claim, liability,
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
15.8 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed duly given (a) on the date of delivery
if delivered personally, (b) on the first business day following the date of
dispatch if delivered by a nationally recognized next-day courier service, (c)
on the fifth business day following the date of mailing if delivered by
registered or certified mail, return receipt requested, postage prepaid or (d)
if sent by facsimile transmission, when transmitted and receipt is confirmed by
telephone. All notices hereunder shall be delivered as follows:
If to Allergan, to:
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attn: General Counsel
9
If to AMO to:
----------------------
----------------------
----------------------
Attn: General Counsel
Any party may, by notice to the other party given in the form specified in this
Section 15.8, change the address to which such notices are to be given.
15.9 Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof or thereof, or the application of such provision to Persons or
circumstances or in jurisdictions other than those as to which it has been held
invalid or unenforceable, shall remain in full force and effect and shall in no
way be affected, impaired or invalidated thereby, so long as the economic or
legal substance of the transactions contemplated hereby or thereby, as the case
may be, is not affected in any manner adverse to any party. Upon such
determination, the parties shall negotiate in good faith in an effort to agree
upon such a suitable and equitable provision to effect the original intent of
the parties.
15.10 Force Majeure. No party shall be deemed in default of
this Agreement to the extent that any delay or failure in the performance of its
obligations under this Agreement results from any cause beyond its reasonable
control and without its fault or negligence, such as acts of God, acts of civil
or military authority, acts of terrorism, embargoes, epidemics, war, riots,
insurrections, fires, explosions, earthquakes, floods, unusually severe weather
conditions, labor problems or unavailability of parts, or, in the case of
computer systems, any failure in electrical or air conditioning equipment. In
the event of any such excused delay, the time for performance shall be extended
for a period equal to the time lost by reason of the delay.
15.11 Headings. The article, section and paragraph headings
contained in this Agreement and in the Ancillary Agreements are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement or any Ancillary Agreement.
15.12 Survival of Covenants. Except as expressly set forth in
any Ancillary Agreement, the covenants, representations and warranties contained
in this Agreement, and liability for the breach of any obligations contained
herein or therein, shall survive the Distribution Date and shall remain in full
force and effect.
15.13 Waivers of Default. Waiver by any party of any default
by the other party of any provision of this Agreement shall not be deemed a
waiver by the waiving party of any subsequent or other default, nor shall it
prejudice the rights of the other party.
15.14 Amendments. No provisions of this Agreement shall be
deemed waived, amended, supplemented or modified by any party, unless such
waiver, amendment, supplement or modification is in writing and signed by the
authorized representative of the party against whom it is sought to enforce such
waiver, amendment, supplement or modification.
10
15.15 Interpretation. Words in the singular shall be held to
include the plural and vice versa and words of one gender shall be held to
include the other genders as the context requires. The terms "hereof," "herein,"
and "herewith" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole (including all of the Transition
Services Schedules and appendices hereto) and not to any particular provision of
this Agreement. The word "including" and words of similar import when used in
this Agreement shall mean "including, without limitation," unless the context
otherwise requires or unless otherwise specified. The word "or" shall not be
exclusive.
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed in duplicate originals by its duly authorized
representatives.
ALLERGAN, INC. ADVANCED MEDICAL OPTICS, INC.
By: By:
----------------------------- ------------------------------------
Name: Name:
----------------------------- ----------------------------------
Its: Its:
----------------------------- -----------------------------------
Date: Date:
----------------------------- ----------------------------------
11
Annex A
FORM OF TRANSITION SERVICE SCHEDULE TO
TRANSITIONAL SERVICES AGREEMENT
1. TRANSITION SERVICE SCHEDULE #:
----------------------------------
(To be inserted by responsible individual or department.)
2. FUNCTIONAL AREA:
------------------------------------------------
3. START/END DATE: The Services start on the Distribution Date (as defined
in the Transitional Services Agreement between Allergan, Inc.
("Allergan") and Advanced Medical Optics, Inc. ("AMO") to which this
Transition Service Schedule is attached) and end one year following the
Distribution Date, unless otherwise indicated below.
INDICATE BELOW IF OTHER START/END DATE:
START DATE:
------------------------------------------------------
END DATE:
--------------------------------------------------------
If Start and End dates vary by service and/or country, please indicate
in Paragraph 5 below.
4. SUMMARY OF SERVICES: (Describe the service to be provided in
appropriate detail.
--------------------------------------------------------------------------------
SERVICE NAME
--------------------------------------------------------------------------------
5. LIST OF SERVICES TO BE PROVIDED PER COUNTRY AND SITE: (List all the
services to be provided at each site. Enter Start Date and End Date if
different than Paragraph 3 above.)
--------------------------------------------------------------------------------
COUNTRY SITE SERVICE(S)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
7. ESTIMATED TOTAL COMPENSATION:
------------------------------------
1
8. DESCRIBE COST METHODOLOGY AND COST DRIVERS AFFECTING ESTIMATED TOTAL
COMPENSATION (Describe on an individual service basis if necessary):
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Upon execution of this Transition Service Schedule by both
parties, this Transition Service Schedule is hereby deemed incorporated into and
made part of that certain Transitional Services Agreement between Allergan, Inc.
and Advanced Medical Optics, Inc.
ALLERGAN, INC. ADVANCED MEDICAL OPTICS, INC.
By: By:
----------------------------- ------------------------------------
Name: Name:
----------------------------- ----------------------------------
Its: Its:
----------------------------- -----------------------------------
Date: Date:
----------------------------- ----------------------------------
2
