EXHIBIT 10.33
July 20, 2001
Xx. Xxxxxxx X. Xxxxxx, Xx.
0000 Xxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Dear Xxxxx:
As a follow-up to your discussions with Xxxxx Xxxxx, and your intention to
retire from Allergan on August 23, 2002, this letter agreement (the "Letter
Agreement") outlines your rights, duties and responsibilities to Allergan (the
"Company" or "Allergan") for the period commencing on the effective date of this
Letter Agreement through July 31, 2001 and further outlines the terms and
conditions of your retirement and separation from Allergan.
Your current position of Corporate Vice President, Administration will be
eliminated effective July 31, 2001 and your current duties and responsibilities
will be assumed by others in the company and an existing employee will assume
the position of Secretary. However, you will continue to be employed by the
Company in a consulting capacity until August 23, 2002 (your "Retirement Date"),
on which date you will be separated from the Company by early retirement (your
"Retirement"). Your Retirement Date shall be deemed your "Termination Date" for
all purposes under Allergan's various plans.
You will tender your resignation as a member of the Allergan Executive
Committee, as a member of The Allergan Foundation, and as a director and/or
officer of any Allergan or any Allergan subsidiary or affiliate on which you
serve effective July 31, 2001.
In your consulting capacity you will not be required to report to work. However,
you will be available as needed for Xxxxx Xxxxx or Xxxxxxx Xxxxxx for legal or
ethics counsel and/or other advice.
This Letter Agreement sets forth all of the agreements, understandings, and
release of all claims relative to your Retirement/Termination from Allergan.
1. RETIREMENT DATE & PAY
Effective August 23, 2002, your Retirement Date, your employment with
Allergan, Inc. and its affiliates will end. You will be paid at your
current salary rate through your Retirement Date on the same bi-weekly
schedule as all regular employees.
Initialed by: 1
Xxxxxx X. Xxxxxxx: Date
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Xxxxxxx X. Xxxxxx, Xx.: Date
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2. MEDICAL/DENTAL & VISION CARE BENEFITS
Medical/Dental & Vision Care insurance benefits will continue until your
Retirement Date. Regular employee benefits, including vacation accrual,
LTD, SIP and ESOP participation, life insurance and personal accident
coverage will end on your Retirement Date.
3. VACATION
You shall continue to earn vacation time at our current accrual rate
through your Retirement Date. You will receive, on your Retirement Date;
compensation for all earned but unused vacation up to your Retirement Date.
4. RETIREMENT & DEFERRED INVESTMENT BENEFITS
As of your Retirement Date:
a) Saving & Investment Plan: Various distribution options are
available from the Allergan Savings & Investment Plan. Please review
the information previously provided to you or contact the Benefits
Department. Termination withdrawal forms and tax information will be
provided at your final exit interview.
b) Employee Stock Ownership Plan: Various distribution options are
available for the Employee Stock Ownership Plan. Please review the
information previously provided to you or contact the Benefits
Department. A termination withdrawal form will be provided at your
final exit interview.
c) Pension Plan: Please reviews the information previously provided to
you or contacts the Benefits Department.
5. RETIREE MEDICAL
When your Allergan Group Medical/Dental & Vision Care coverage ends, you
will be eligible for Retiree medical.
6. MANAGEMENT BONUS PLAN
Should bonuses be paid for 2001, you will be eligible to receive a
pro-rated Management Bonus for the number of months you were employed as
Corporate Vice President, Administration in 2001. Bonus payment will be
made at the normal time in 2002 and will be based on your base compensation
through July 31, 2001, the bonus percentage payable for employees in your
grade level (15E), and the performance modifier determined for bonuses paid
to the corporate staff. You will not be eligible to receive a Management
Bonus for 2002.
Initialed by: 2
Xxxxxx X. Xxxxxxx: Date
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Xxxxxxx X. Xxxxxx, Xx.: Date
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7. LONG TERM INCENTIVE PLAN
You will not be eligible to receive Non-Qualified Stock Options ("NQSOs")
or Special Incentive Plans granted to other grade level 15E employees as a
participant in any general granting of NQSOs at any time between the date
of this agreement and your Retirement Date. You will also not be eligible
to receive a grant of Restricted Stock ("RS") granted to other grade level
15E employees as a participant in any general granting of RS at any time
between the date of this agreement and your Retirement Date.
Attached hereto is a schedule listing the 109,950 NQSOs granted to you
prior to the date of this Letter Agreement which remain outstanding. None
are currently vested. All such outstanding NQSOs granted to you prior to
the date of this Letter Agreement will continue in effect and vest
according to the vesting provisions prescribed in the respective NQSO grant
except as follows: If you sign this Letter Agreement (see Section 13.
RELEASE OF ALL CLAIMS), as of your Retirement Date all outstanding options
then held by you which remain unvested will then vest and with respect to
all NQSOs then held by you the stock option exercise period will expire on
the earlier of (a) the normal expiration date of the option, or (b) three
years from your Retirement Date. NQSOs not exercised by the expiration date
will be forfeited.
8. EXECUTIVE PERQUISITES
You have been eligible for certain executive perquisites at your salary
grade, which will end on your Retirement Date. You may submit perquisite
expenses eligible for reimbursement, up to your Retirement Date. These
benefits include:
- Tax and financial planning
- Club Dues
- Auto Allowance
- Gasoline Allowance
- Club Allowance
- Tax and Financial Planning
Submit eligible expenses on the usual reimbursement form through Xxx
Xxxxxxx in Human Resources.
9. EXPENSES
As of July 31, 2001, you will incur no expenses on behalf of Allergan nor
will you have authority to act on behalf of Allergan. Any advances should
be repaid by your Retirement Date. Any loans must be repaid in accordance
with their terms.
Initialed by: 3
Xxxxxx X. Xxxxxxx: Date
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Xxxxxxx X. Xxxxxx, Xx.: Date
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10. COMPANY INFORMATION
You acknowledge that during the term of your employment you had, and that
during the term of this Letter Agreement and subsequent thereto you may
have, access to information confidential and/or proprietary to Allergan
including but not limited to, trade secrets, technical data or know-how
relating to investigational or marketed products, research, or
manufacturing processes, information concerning the skills and
qualifications of Allergan employees, or any other information of a
business, financial or technical nature (not already publicly available in
a reasonably integrated form), and that such information is and will remain
at all times the exclusive property of Allergan. You will maintain such
information in confidence and will not disclose such information to anyone
else, nor will you use it for your own benefit or for the benefit of
others, except as expressly directed in writing by Allergan during the term
of this Letter Agreement or at any time thereafter.
11. COMPANY PROPERTY
You must return all Company property on your Retirement Date. This
includes, but is not limited to, credit, phone and travel cards, building
and card keys, office equipment such as calculators, dictation equipment,
computers, modems, and all other items which are company property. This
also includes any report, customer list, price list, files, notebooks or
other materials pertaining to the company's business which are in your
possession or under your control.
12. CHANGE OF CONTROL
This agreement voids and supercedes any Change of Control agreement
previously executed.
13. RELEASE ALL CLAIMS
You expressly understand that you are remaining on the payroll until August
23, 2002 because you have agreed to the following release (and, at the
request of the Company, will re-execute this Release on August 23, 2002 to
cover any activity between the date of this Letter Agreement and August 23,
2002).
A. Applicable to All Released Employees: For the sum of your salary
continuation, (gross pay, less standard withholding and authorized
deductions) based upon your base salary at the termination date and for the
acceleration of your NQSO's and for other good and valuable consideration,
receipt of which is hereby acknowledged, I, Xxxxxxx X. Xxxxxx, Xx., hereby
release and discharge Allergan, Inc. and each and every one of its
affiliates, officers, directors, agents, employees, representatives, and
lawyers (collectively, the "Releasees") from any and all claims, debts,
wages, liabilities, promises, contracts, agreements, obligations,
undertakings and causes of action whatsoever, whether known or unknown,
arising out of, or in any way connected with, any transaction, event, act
or omission occurring on or prior to the date of this Letter Agreement.
Initialed by: 4
Xxxxxx X. Xxxxxxx: Date
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Xxxxxxx X. Xxxxxx, Xx.: Date
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13. RELEASE ALL CLAIMS - (Continued)
IT IS MY INTENTION IN EXECUTING THIS AGREEMENT THAT I WAIVE AND RELINQUISH
ALL RIGHTS AND BENEFITS I HAVE OR MAY HAVE PURSUANT TO THE PROVISIONS OF
SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
Without limiting the foregoing, I acknowledge and agree that the benefits
provided to me in this Agreement supersede and replace any benefits that
might be owed to me under California, or any other state or federal law as
a result of my employment relationship with Allergan and the termination of
my employment.
Furthermore, I agree that if I am entitled to Workers' Compensation
benefits as a result of a work-related injury incurred during my employment
with Allergan, for which no claim presently is pending, Allergan may offset
from the above-quoted severance pay any such Workers' Compensation benefits
to be paid in lieu of salary in a pro rata amount so that my full
compensation for 12 months is equal to and does not exceed my base salary
for 12 months as of the date of this Letter Agreement.
I have read the foregoing release and understand, accept and agree to its
contents and sign this Letter Agreement voluntarily without coercion and
with full understanding that I am releasing and waiving any and all claims
that I have or might have against Allergan and/or any of the Releasees. I
expressly understand that I am receiving the above sum of severance pay and
other consideration because I have executed this Letter Agreement.
B. Applicable to Released Employees Covered by the Older Workers Benefit
Protection Act (Age 40 or older):
You have forty-five (45) days to consider this Letter Agreement before you
sign it. You may sign it earlier if you so wish, but the decision is
entirely yours. Once you sign this Letter Agreement, you have seven (7)
days after signing to revoke it. To revoke this Letter Agreement, please
contact your Human Resources representative, Xxxxxx X. Xxxxxxx, in writing.
You have the right to consult with an attorney of your own choosing and at
your own expense prior to executing this Letter Agreement.
This Letter Agreement, among other things, waives rights that you may have
under the Age Discrimination in Employment Act (the "ADEA"). Nothing in
this Letter Agreement waives rights or claims under the ADEA that may arise
after the date that this Letter Agreement is executed.
Initialed by: 5
Xxxxxx X. Xxxxxxx: Date
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Xxxxxxx X. Xxxxxx, Xx.: Date
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13. RELEASE ALL CLAIMS - (Continued)
I declare under penalty of perjury under the laws of the State of
California that this Section 13.B. is true and correct. Your initials below
and signature on the last page of this Letter Agreement acknowledges that
you have read this section and that you agree to these terms.
14. CONSULTATION WITH AN ATTORNEY
You have the right to consult with an attorney regarding the consequences
of this Letter Agreement and release and I encourage you to do so.
15. CONFIDENTIALITY
Neither party shall reveal or discuss the contents of this Letter
Agreement, unless compelled to do so in order to enforce the terms hereof
or required to do so by law. You understand and agree that unauthorized
disclosure of the terms and conditions of this Letter Agreement to a third
party will result in the termination of all non-ERISA benefits and payments
contained herein.
16. SAVINGS CLAUSE
If any term of this Letter Agreement is declared void or is otherwise
unenforceable, it shall not alter the enforceability or validity of the
remaining paragraphs and terms of this Letter Agreement and release, all of
which shall remain fully binding on the parties.
17. CONTROLLING LAW
Should any dispute arise as to the interpretation, application or breach of
this Letter Agreement, the resolution of such dispute shall be governed by
the laws of the State of California.
18. ARBITRATION
Any future dispute related to this Letter Agreement, shall be resolved by
reference pursuant to Section 638 of the California Code of Civil Procedure
and all disputes shall be resolved by binding arbitration before the
Judicial Arbitration and Mediation Service ("JAMS") in Orange County,
California. Attorney's fees and costs shall be awarded to the party
prevailing in the dispute and any resolution, opinion, or order of JAMS may
be entered as a judgment of the Superior Court and appealed to the
appropriate appellate court pursuant to Section 644 of the California Code
of Civil Procedure. JAMS will control any discovery, rights, or privileges,
the hearing dates and all other matters connected therewith.
Initialed by: 6
Xxxxxx X. Xxxxxxx: Date
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Xxxxxxx X. Xxxxxx, Xx.: Date
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19. ENTIRE AGREEMENT
This Letter Agreement is the entire agreement concerning the benefits and
obligations relating to your rights, duties and responsibilities from July
31, 2002 and your Retirement from the Company and supersedes all prior
writings and discussions and there are no representations, warranties or
commitments other than those set forth in this Letter Agreement. This
Letter Agreement may be amended only in writing, signed by both parties.
Please acknowledge your agreement with the terms outlined in this Letter
Agreement by signing below and by initialing each preceding page as indicated.
Sincerely,
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Vice President Human Resources
Agreed to and accepted by /s/ Xxxxxxx X. Xxxxxx, Xx. July 20, 2001
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Xxxxxxx X. Xxxxxx, Xx. Date
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