EXHIBIT 10.37
FORM OF
EMPLOYEE MATTERS AGREEMENT
BETWEEN
ALLERGAN, INC.
AND
ADVANCED MEDICAL OPTICS, INC.
EFFECTIVE AS OF
JUNE 24, 2002
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS................................................................1
1.1 Affiliate..................................................................1
1.2 Agreement..................................................................1
1.3 Allergan...................................................................1
1.4 Allergan 401(k) Plan.......................................................1
1.5 Allergan Business..........................................................1
1.6 Allergan Deferred Compensation Plan........................................1
1.7 Allergan Employee..........................................................1
1.8 Allergan ESOP..............................................................1
1.9 Allergan Foreign Plan......................................................1
1.10 Allergan Group.............................................................2
1.11 Allergan Incentive Plan....................................................2
1.12 Allergan Management Bonus Plan.............................................2
1.13 Allergan Option............................................................2
1.14 Allergan Pension Plan......................................................2
1.15 Allergan Plan..............................................................2
1.16 Allergan Supplemental Benefits Plan........................................2
1.17 Allergan Supplemental Retirement Plans.....................................2
1.18 Allergan Welfare Plan......................................................2
1.19 AMO........................................................................2
1.20 AMO 401(k) Plan............................................................2
1.21 AMO Beneficiary............................................................2
1.22 AMO Bonus Plans............................................................2
1.23 AMO Business...............................................................2
1.24 AMO Deferred Compensation Plan.............................................2
1.25 AMO Employee...............................................................3
1.26 AMO Group..................................................................3
1.27 AMO Incentive Plan.........................................................3
1.28 AMO International Stock Purchase Plan......................................3
1.29 AMO Plan...................................................................3
1.30 AMO Pre-Spin Bonus Plans...................................................3
1.31 AMO Rabbi Trust............................................................3
1.32 AMO Stock Purchase Plan....................................................3
1.33 AMO Supplemental Benefits Plan.............................................3
1.34 AMO Welfare Plan...........................................................3
1.35 Ancillary Agreements.......................................................3
1.36 Assets.....................................................................3
1.37 COBRA......................................................................3
1.38 Code.......................................................................3
1.39 Contribution and Distribution Agreement....................................3
1.40 Distribution...............................................................4
1.41 Distribution Date..........................................................4
1.42 DOL........................................................................4
1.43 ERISA......................................................................4
1.44 IRS........................................................................4
1.45 Liabilities................................................................4
1.46 Material Feature...........................................................4
1.47 Person.....................................................................4
1.48 SEC........................................................................4
1.49 Subsidiary.................................................................4
ARTICLE II. GENERAL PRINCIPLES.........................................................4
2.1 Assumption of Liabilities..................................................4
2.2 Establishment of AMO Plans.................................................5
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TABLE OF CONTENTS
(Continued)
PAGE
2.3 AMO under No Obligation to Maintain Plans..................................5
2.4 Terms of Participation by AMO Employees in AMO Plans.......................6
2.5 Dispute Resolution.........................................................6
2.6 Foreign Plans..............................................................6
ARTICLE III. ALLERGAN 401(K) PLAN.......................................................6
3.1 Allergan 401(k) Plan.......................................................6
ARTICLE IV. ALLERGAN PENSION PLAN......................................................7
4.1 Pension Plan...............................................................7
ARTICLE V. ALLERGAN EMPLOYEE STOCK OWNERSHIP PLAN.....................................7
5.1 ESOP.......................................................................7
ARTICLE VI. ALLERGAN SUPPLEMENTAL RETIREMENT PLANS.....................................8
6.1 Supplemental Retirement Plans..............................................8
ARTICLE VII. ALLERGAN HEALTH AND WELFARE PLANS..........................................8
7.1 Health and Welfare Plans as of the Distribution Date.......................8
7.2 Health Plans through the Distribution Date.................................9
7.3 COBRA......................................................................9
ARTICLE VIII. EQUITY AND OTHER COMPENSATION.............................................10
8.1 Allergan Bonus Plans......................................................10
8.2 Deferred Compensation Plan................................................10
8.3 AMO Incentive Plan........................................................10
8.4 Allergan Options..........................................................11
8.5 AMO Stock Purchase Plan and AMO International Stock Purchase Plan.........11
ARTICLE IX. ADMINISTRATIVE PROVISIONS.................................................11
9.1 Contributions to Trusts...................................................11
9.2 Sharing of Participant Information........................................11
9.3 Beneficiary Designations..................................................12
9.4 Requests for IRS and DOL Opinions.........................................12
9.5 Fiduciary Matters.........................................................12
9.6 Consent of Third Parties..................................................12
ARTICLE X. EMPLOYMENT-RELATED MATTERS................................................12
10.1 Employment of Employees with U.S. Work Visas..............................12
10.2 Confidentiality and Proprietary Information...............................12
10.3 Personnel Records.........................................................12
10.4 Medical Records...........................................................12
10.5 Unemployment Insurance Program............................................12
10.6 Worker's Compensation Claims..............................................13
10.7 No Third-Party Beneficiaries..............................................13
ARTICLE XI. GENERAL PROVISIONS........................................................13
11.1 Effect if Distribution Does Not Occur.....................................13
11.2 Relationship of Parties...................................................13
11.3 Affiliates................................................................13
11.4 Governing Law.............................................................13
11.5 Assignment................................................................13
11.6 Severability..............................................................13
11.7 Interpretation............................................................13
11.8 Amendment.................................................................14
11.9 Termination...............................................................14
11.10 Conflict..................................................................14
11.11 Entire Agreement..........................................................14
11.12 Counterparts..............................................................14
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SCHEDULES PAGE Page
SCHEDULE 1.25 AMO TRANSFERRED EMPLOYEES.................................................18
SCHEDULE 2.6 FOREIGN PLANS.............................................................55
SCHEDULE 8.4 OPTIONS HELD BY CERTAIN NON-U.S. AMO TRANSFERRED EMPLOYEES................56
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EMPLOYEE MATTERS AGREEMENT
This EMPLOYEE MATTERS AGREEMENT is entered into on June 24, 2002, between
Allergan, Inc., a Delaware corporation, and Advanced Medical Optics, Inc., a
Delaware corporation. Capitalized terms used herein (other than the formal names
of Allergan Plans (as defined below) and related trusts of Allergan) and not
otherwise defined, shall have the respective meanings assigned to them in
Article I hereof.
WHEREAS, the Board of Directors of Allergan has determined that it is in
the best interests of Allergan and its shareholders to separate Allergan's
existing businesses into two independent businesses, the Allergan Business (as
defined below) and the AMO Business (as defined below); and
WHEREAS, in furtherance of the foregoing, Allergan and AMO have agreed to
enter into this Agreement to allocate between them assets, liabilities and
responsibilities with respect to certain employee compensation, benefit plans,
programs and arrangements, and certain employment matters;
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Wherever used in this Agreement, the following terms shall have the
meanings indicated below, unless a different meaning is plainly required by the
context. The singular shall include the plural, unless the context indicates
otherwise. Headings of sections are used for convenience of reference only, and
in case of conflict, the text of this Agreement, rather than such headings,
shall control:
1.1 Affiliate. "Affiliate" has the meaning given it in the Contribution and
Distribution Agreement.
1.2 Agreement. "Agreement" means this Employee Matters Agreement, including
all the Schedules hereto, and all amendments made hereto from time to time.
1.3 Allergan. "Allergan" means Allergan, Inc., a Delaware corporation. In
all such instances in which Allergan is referenced in this Agreement, it shall
also be deemed to include a reference to each member of the Allergan Group,
unless it specifically provides otherwise; Allergan shall be solely responsible
to AMO for ensuring that each member of the Allergan Group complies with the
applicable terms of this Agreement.
1.4 Allergan 401(k) Plan. "Allergan 401(k) Plan" means the Allergan, Inc.
Savings and Investment Plan, a qualified profit sharing plan.
1.5 Allergan Business. "Allergan Business" has the meaning given it in the
Contribution and Distribution Agreement.
1.6 Allergan Deferred Compensation Plan. "Allergan Deferred Compensation
Plan" means the Allergan, Inc. Executive Deferred Compensation Plan.
1.7 Allergan Employee. "Allergan Employee" means an individual who, as of
the Distribution Date: (a) is actively employed by, or on an approved leave of
absence from, the Allergan Group, and (b) is not an AMO Employee.
1.8 Allergan ESOP. "Allergan ESOP" means the Allergan, Inc. Employee Stock
Ownership Plan, a qualified employee stock ownership plan.
1.9 Allergan Foreign Plan. "Allergan Foreign Plan" means an Allergan Plan
maintained by the Allergan Group for the benefit of its employees outside the
U.S. and Puerto Rico.
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1.10 Allergan Group. "Allergan Group" has the meaning given it in the
Contribution and Distribution Agreement; provided, however, that, prior to the
Distribution Date, the Allergan Group shall include the AMO Group and, effective
as of the Distribution Date, the Allergan Group shall exclude the AMO Group.
1.11 Allergan Incentive Plan. "Allergan Incentive Plan" means the Allergan,
Inc. 1989 Incentive Compensation Plan. For the avoidance of doubt, Allergan
Incentive Plan shall not mean the Allergan, Inc. 2001 Premium Priced Stock
Option Plan.
1.12 Allergan Management Bonus Plan. "Allergan Management Bonus Plan" means
the 2002 Allergan, Inc. Management Bonus Plan.
1.13 Allergan Option. "Allergan Option" means an option to purchase
Allergan common stock, $0.01 par value, granted pursuant to the Allergan
Incentive Plan.
1.14 Allergan Pension Plan. "Allergan Pension Plan" means the Allergan,
Inc. Pension Plan, a qualified pension plan.
1.15 Allergan Plan. "Allergan Plan" means any plan, policy, program,
payroll practice, arrangement, contract, trust, insurance policy, or any
agreement or funding vehicle providing compensation or benefits to employees,
former employees, directors or consultants of Allergan.
1.16 Allergan Supplemental Benefits Plan. "Allergan Supplemental Benefits
Plan" means the Allergan Supplemental Benefits Plan and the health and welfare
programs established thereunder for the benefit of the eligible employees of
Allergan and its U.S. and Puerto Rican Subsidiaries.
1.17 Allergan Supplemental Retirement Plans. "Allergan Supplemental
Retirement Plans" shall mean the Allergan, Inc. Supplemental Retirement Income
Plan and the Allergan, Inc. Supplemental Executive Benefit Plan.
1.18 Allergan Welfare Plan. "Allergan Welfare Plan" means the Allergan
Welfare Benefits Plan and the health and welfare programs established thereunder
for the benefit of the eligible employees of Allergan and its U.S. and Puerto
Rican Subsidiaries.
1.19 AMO. "AMO" means Advanced Medical Optics, Inc., a Delaware
corporation. In all such instances in which AMO is referred to in this
Agreement, it shall also be deemed to include a reference to each member of the
AMO Group, unless it specifically provides otherwise; AMO shall be solely
responsible to Allergan for ensuring that each member of the AMO Group complies
with the applicable terms of this Agreement.
1.20 AMO 401(k) Plan. "AMO 401(k) Plan" means the qualified profit sharing
plan to be established by AMO pursuant to Section 2.2 and Article III.
1.21 AMO Beneficiary. "AMO Beneficiary" means a covered spouse or
dependent, or qualified beneficiary (as such term is defined under COBRA), in
each case, of an AMO Employee with respect to that AMO Employee's benefit under
the applicable Allergan Plan.
1.22 AMO Bonus Plans. "AMO Bonus Plans" means the bonus plans to be
established by AMO pursuant to Sections 2.2 and 8.1.
1.23 AMO Business. "AMO Business" has the meaning given it in the
Contribution and Distribution Agreement.
1.24 AMO Deferred Compensation Plan. "AMO Deferred Compensation Plan" means
the deferred compensation plan to be established by AMO pursuant to Sections 2.2
and 8.2.
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1.25 AMO Employee. "AMO Employee" means any individual who, as of the
Distribution Date, is: (a) an individual who prior to the Distribution Date was
actively employed by, or on an approved leave of absence from, the Allergan
Group, and (b) whose employment is transferred from the Allergan Group to the
AMO Group on or before the Distribution Date. Schedule 1.25 sets forth the names
of the AMO Employees. Allergan shall prepare a preliminary Schedule 1.25, which
shall be modified by Allergan to add or delete names, as necessary, before the
Distribution Date.
1.26 AMO Group. "AMO Group" has the meaning given it in the Contribution
and Distribution Agreement.
1.27 AMO Incentive Plan. "AMO Incentive Plan" means the stock plan to be
established by AMO pursuant to Sections 2.2 and 8.3.
1.28 AMO International Stock Purchase Plan. "AMO International Stock
Purchase Plan" means the employee stock purchase plan to be established by AMO
for the employees of its non-U.S. Subsidiaries pursuant to Section 2.2 and
Subsection 8.5(b).
1.29 AMO Plan. "Plan" means any plan, policy, program, payroll practice,
arrangement, contract, trust, insurance policy, or any agreement or funding
vehicle providing compensation or benefits to employees, former employees,
directors or consultants of AMO.
1.30 AMO Pre-Spin Bonus Plans. "AMO Pre-Spin Bonus Plans" means the 2002
AMO Pre-Spin Management Bonus Plan and any other Allergan bonus plans in which
AMO Employees participated before the Distribution Date.
1.31 AMO Rabbi Trust. "AMO Rabbi Trust" shall mean the grantor trust to be
established by AMO pursuant to Section 8.2 for holding assets under the AMO
Deferred Compensation Plan.
1.32 AMO Stock Purchase Plan. "AMO Stock Purchase Plan," means the
"employee stock purchase plan" (within the meaning of Section 423(b) of the
Code) to be established by AMO for the benefit of the eligible employees of AMO
and its U.S. Subsidiaries pursuant to Section 2.2 and Subsection 8.5(a).
1.33 AMO Supplemental Benefits Plan. "AMO Supplemental Benefits Plan" means
the supplemental benefits plan, and the health and welfare programs under such
supplemental benefits plan, to be established by AMO pursuant to Section 2.2 and
Article VII for the benefit of the eligible employees of AMO and its U.S. and
Puerto Rican Subsidiaries.
1.34 AMO Welfare Plan. "AMO Welfare Plan" means the welfare benefits plan,
and the health and welfare programs under such welfare plan, to be established
by AMO for the benefit of the eligible employees of AMO and its U.S. and Puerto
Rican Subsidiaries pursuant to Section 2.2 and Article VII.
1.35 Ancillary Agreements. "Ancillary Agreements" has the meaning given it
in the Contribution and Distribution Agreement.
1.36 Assets. "Assets" has the meaning given it in the Contribution and
Distribution Agreement.
1.37 COBRA. "COBRA" means the continuation coverage requirements for "group
health plans" under Title X of the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended from time to time, and as codified in Code Section 4980B
and ERISA Sections 601 through 608.
1.38 Code. "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
1.39 Contribution and Distribution Agreement. "Contribution and
Distribution Agreement" means the Contribution and Distribution Agreement of
even date herwith of which this is Exhibit C thereto.
3
1.40 Distribution. "Distribution" means Allergan's pro rata distribution to
the holders of its common stock, $0.01 par value, of all the shares of AMO
common stock owned by Allergan.
1.41 Distribution Date. "Distribution Date" means the date that the
Distribution is effective.
1.42 DOL. "DOL" means the United States Department of Labor.
1.43 ERISA. "ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
1.44 IRS. "IRS" means the United States Internal Revenue Service.
1.45 Liabilities. "Liabilities" has the meaning given it in the
Contribution and Distribution Agreement.
1.46 Material Feature. "Material Feature" means any feature of a Plan that
could reasonably be expected to be of material importance, in the aggregate, to
the sponsoring employer or the participants (or their dependents or
beneficiaries) of that Plan, which could include, depending on the type and
purpose of the particular Plan, the class or classes of employees eligible to
participate in such Plan, the nature, type, form, source, and level of benefits
provided under such Plan, the amount or level of contributions, if any, required
to be made by participants (or their dependents or beneficiaries) to such Plan,
and the costs and expenses incurred by the sponsoring employer for implementing
and/or maintaining such Plan.
1.47 Person. "Person" has the meaning given it in the Contribution and
Distribution Agreement.
1.48 SEC. "SEC" means the United States Securities and Exchange Commission.
1.49 Subsidiary. "Subsidiary" has the meaning given it in the Contribution
and Distribution Agreement.
ARTICLE II
GENERAL PRINCIPLES
2.1 Assumption of Liabilities.
(a) AMO Liabilities. Effective as of Distribution Date, and except as
otherwise specifically provided in this Agreement, AMO hereby assumes and agrees
to pay, perform, fulfill and discharge: (i) all of the Liabilities to, or
relating to, AMO Employees relating to, arising out of, or resulting from actual
or alleged employment with the AMO Group after the Distribution Date (including
all of the Liabilities relating to, arising out of, or resulting from the AMO
Plans) and (ii) all Liabilities relating to, arising out of, or resulting from
obligations, liabilities and responsibilities expressly assumed by the AMO
Group, or an AMO Plan, pursuant to this Agreement.
(b) Allergan Liabilities. Effective as of the Distribution Date, and
except as otherwise specifically provided in this Agreement, Allergan shall
retain and hereby agrees to pay, perform, fulfill and discharge: (i) all of the
Liabilities to, or relating to, Allergan Employees relating to, arising out of,
or resulting from actual or alleged employment with the Allergan Group after the
Distribution Date (including all of the Liabilities relating to, arising out of,
or resulting from the Allergan Plans), (ii) all obligations to all Allergan
employees (including AMO Employees) base salaries, wages and commissions (but,
for the avoidance of doubt, not including any bonuses except as expressly
provided in this Agreement) that are accrued in the ordinary course of business
prior to the Distribution Date (unless, with respect to AMO Employees, Allergan
transfers to AMO cash equivalent to such accruals upon the Distribution) and
(iii) all Liabilities relating to, arising out of, or resulting from
obligations, liabilities and responsibilities expressly retained by the Allergan
Group, or an Allergan Plan, pursuant to this Agreement.
(c) Employee Actions. Except as otherwise provided in this Agreement,
any claim or lawsuit brought by a current or former employee of an AMO Group
member or an Allergan Group member, whether
4
brought on, before or after the Distribution Date, and which has not been
dismissed, waived, settled or otherwise finally adjudicated as of the
Distribution Date, against an AMO Group member or Allergan Group member and
relating to alleged wrongful acts shall be treated as follows.
(i) To the extent such claim or lawsuit relates to, arises out
of, or results from events, facts, conduct or circumstances occurring on or
prior to the Distribution Date, such liability shall be a "Shared Contingent
Liability" within the meaning of Subsection 5.01(l) and shall be subject to
Section 5.04 of the Contribution and Distribution Agreement.
(ii) To the extent such claim or lawsuit relates to, arises out
of, or results from events, facts, conduct or circumstances occurring after the
Distribution Date: (1) Liability arising from events, facts, conduct or
circumstances related to, or arising out of, actual or alleged employment with
the Allergan Group shall be an "Allergan Exclusive Contingent Liability" within
the meaning of Subsection 5.01(e) of the Contribution and Distribution Agreement
and shall be subject to Section 5.03 of the Contribution and Distribution
Agreement and (2) Liability arising from events, facts, conduct or circumstances
related to, or arising out of, actual or alleged employment with the AMO Group
shall be an "AMO Exclusive Contingent Liability" within the meaning of
Subsection 5.01(i) of the Contribution and Distribution Agreement and shall be
subject to Section 5.03 of the Contribution and Distribution Agreement.
Contingent liabilities relating to, arising out of, or resulting from an actual
or alleged breach of contract shall be treated as arising at the time of the
occurrence of the events, facts, conduct or circumstances resulting in the
actual or alleged breach.
(d) Employee-Related Liabilities of Foreign AMO Entities. In the event
that the Allergan Group establishes one or more foreign corporations or other
entities prior to the Distribution Date in connection with or as part of, the
contribution of the AMO Business to the AMO Group (a "Pre-Distribution
Restructuring"), Allergan and AMO agree that all Liabilities (including
Contingent Liabilities) relating to Allergan Employees and AMO Employees that
are paid by any such foreign corporation or entity after the Pre-Distribution
Restructuring and prior to the Distribution Date, shall be allocated among
Allergan and AMO in the manner in which such Liabilities (and Contingent
Liabilities) would have been allocated in accordance with this Section 2.1,
assuming the Pre-Distribution Restructuring occurred on the Distribution Date.
Effective as of the Distribution Date (or such other date as Allergan and AMO
may mutually agree), Allergan shall reimburse AMO, or such foreign corporation
or entity, for any such Liabilities paid by such foreign corporation or entity
properly allocated to Allergan, and AMO shall reimburse Allergan for any such
Liabilities paid by Allergan properly allocated to AMO, or such foreign
corporation or entity.
2.2 Establishment of AMO Plans. Prior to the Distribution Date, AMO shall
adopt the following employee benefit plans: (a) the AMO Welfare Plan, (b) the
AMO Supplemental Benefits Plan, (c) the AMO 401(k) Plan, (d) the AMO Incentive
Compensation Plan, (e) the AMO Deferred Compensation Plan, (f) the AMO Bonus
Plans, (g) the AMO Stock Purchase Plan and (h) the AMO International Stock
Purchase Plan. Except as otherwise provided herein, each of the foregoing AMO
Plans (except for the AMO Stock Purchase Plan, the AMO International Stock
Purchase Plan and the AMO Deferred Compensation Plan), as in effect as of the
Distribution Date (or such other date(s) as Allergan and AMO may mutually
agree), shall be comparable in the aggregate in all Material Features to the
corresponding Allergan Plan as in effect on the Distribution Date.
Notwithstanding the foregoing, Allergan and AMO agree that the costs and
expenses that would be incurred by AMO in establishing and maintaining a defined
benefit "pension plan" (within the meaning of Section 3(2) of ERISA) or a
retiree medical program, make it financially impracticable for AMO to establish
such plans. As specified in this Agreement or as otherwise mutually agreed upon
by Allergan and AMO from time to time, Allergan shall, or shall cause each
Allergan Plan to, transfer to AMO or the relevant AMO Plan, amounts equal to
trust assets, insurance reserves, and other related assets of each Allergan Plan
relating to the liabilities of such Allergan Plan assumed by AMO or such AMO
Plan. As specified in this Agreement or as otherwise mutually agreed upon by
Allergan and AMO from time to time, AMO shall, or shall cause the relevant AMO
Plan to, assume the liabilities of the corresponding Allergan Plan with respect
to all benefits accrued under such Allergan Plan prior to the Distribution Date
by AMO Employees.
2.3 AMO under No Obligation to Maintain Plans. Except as specified
otherwise in this Agreement, nothing in this Agreement shall preclude AMO, at
any time after the Distribution Date, from amending, merging, modifying,
terminating, eliminating, reducing, or otherwise altering in any respect any AMO
Plan, any benefit under
5
any AMO Plan or any trust, insurance policy or funding vehicle related to any
AMO Plans, or any employment or other service arrangement with AMO Employees or
vendors (to the extent permitted by law).
2.4 Terms of Participation by AMO Employees in AMO Plans.
(a) Non-Duplication of Benefits. Except as specified otherwise in this
Agreement, as of the Distribution Date, or other later date that applies to the
particular AMO Plan established thereafter, the AMO Plans shall be, with respect
to AMO Employees and AMO Beneficiaries, in all respects the successors in
interest to, and shall not provide benefits that duplicate benefits provided by,
the corresponding Allergan Plans. Allergan and AMO shall agree on methods and
procedures, including amending the respective Plan documents, to prevent AMO
Employees and AMO Beneficiaries from receiving duplicate benefits from the
Allergan Plans and the AMO Plans.
(b) Service and Other Credit. Except as specified otherwise in this
Agreement, with respect to AMO Employees, each AMO Plan shall provide that all
service (as reflected in Allergan's human resources records), compensation and
all other benefit-affecting credits that, as of the Distribution Date, were
recognized for purposes of service or other credit under the corresponding
Allergan Plan shall, as of the Distribution Date, receive full recognition and
credit and be taken into account under such AMO Plan to the same extent as if
such items occurred under such AMO Plan, except to the extent that duplication
of benefits would result. The service crediting provisions shall be subject to
any respectively applicable service bridging, break in service, employment date,
eligibility date or similar rules under the Allergan Plans and the AMO Plans.
(c) Assumption of Liabilities. Except as specified otherwise in this
Agreement, the provisions of this Agreement for the transfer of assets relating
to Allergan Plans to AMO and/or the appropriate AMO Plans are based upon the
understanding of the parties that AMO and/or the appropriate AMO Plan will
assume all liabilities of the corresponding Allergan Plan to or relating to AMO
Employees and AMO Beneficiaries, as provided for herein. If any such liabilities
are not effectively assumed by AMO and/or the appropriate AMO Plan, then the
amount of transferred assets shall be recomputed accordingly, taking into
account the retention of such liabilities by such Allergan Plan, and assets
shall be transferred from AMO and/or the appropriate AMO Plan to Allergan and/or
the appropriate Allergan Plan so as to place Allergan and/or the appropriate
Allergan Plan and AMO and/or the appropriate AMO Plan in the position it would
have been in had the initial asset transfer been made in accordance with such
recomputed amount of assets.
2.5 Dispute Resolution. Any dispute, controversy or claim between or among
Allergan and AMO with respect to the matters covered by this Agreement shall be
resolved in accordance with Section 8.02 of the Contribution and Distribution
Agreement.
2.6 Foreign Plans. AMO and Allergan each intend that the matters, issues or
liabilities relating to, arising out of, or resulting from the Allergan Foreign
Plans and non-U.S. related employment and employee benefit matters be resolved
in a manner that is in compliance with the requirements of applicable local law
and, to the extent permitted by applicable local law, in a manner consistent
with comparable U.S. matters, issues or liabilities as reflected in this
Agreement. Without in any way limiting the general principle set forth in the
preceding sentence, Schedule 2.6 sets forth a general summary of the manner in
which certain Allergan Foreign Plans shall be resolved, effective as of the
Distribution Date (or such other date(s) as Allergan and AMO may mutually agree)
consistent with the provisions of this Section 2.6 or as permitted under
applicable local law.
ARTICLE III
ALLERGAN 401(K) PLAN
3.1 Allergan 401(k) Plan. Allergan and AMO shall each take actions or cause
actions to be taken as necessary to accomplish the following with respect to the
Allergan 401(k) Plan.
(a) Spinoff of Assets and Liabilities. Effective as of the
Distribution Date: (i) AMO Employees shall cease to be eligible to make
contributions to, or receive allocations under, the Allergan 401(k) Plan and
(ii) Allergan and AMO shall cause the assets and liabilities attributable to the
accounts of AMO Employees in the Allergan 401(k) Plan that are held by its
related trust to be "spun off" in accordance with Section 414(l) of the
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Code, Treasury Regulation Section 1.414(l)-1, and Section 208 of ERISA, to
establish the AMO 401(k) Plan. Such assets of the Allergan 401(k) Plan shall be
transferred in-kind to the trust established under the AMO 401(k) Plan as soon
as administratively practicable. The AMO 401(k) Plan is intended to be a
tax-qualified 401(k) profit sharing plan under the Code. AMO shall adopt the AMO
401(k) Plan, which shall be effective as of the Distribution Date, and may amend
the AMO 401(k) Plan on or after the Distribution Date in such manner as AMO
determines appropriate, provided, however, that no such amendment shall cause
the AMO 401(k) Plan to fail to be tax-qualified as of the Distribution Date.
Effective as of the Distribution Date (or such other date as Allergan and AMO
may mutually agree), AMO shall use its commercially reasonable best efforts to
enter into agreements satisfactory to AMO to accomplish such spinoff, the
maintenance of the necessary participant records, the appointment of an initial
trustee under the AMO 401(k) Plan, and the engagement of an initial record
keeper under the AMO 401(k) Plan. AMO and Allergan each agree to use their
commercially reasonable best efforts to accomplish this 401(k) Plan and related
trust spinoff.
(b) Stock Considerations. As a result of the Distribution, and to the
extent that immediately prior to the spinoff of the AMO 401(k) Plan, the
Allergan 401(k) Plan continues to consist of Allergan employer securities, the
resulting Allergan 401(k) Plan and AMO 401(k) Plan shall each hold, in part,
Allergan and AMO securities. AMO and Allergan each agree to use their
commercially reasonable best efforts to ensure that their respective Allergan
and AMO securities funds, and underlying securities held in each such fund, are
maintained in compliance with all requirements of applicable law.
(c) No Distribution to AMO Employees. Allergan and AMO each agree to
take action or cause action to be taken to ensure that no distribution of
account balances from the Allergan 401(k) Plan or AMO 401(k) Plan are made to
any AMO Employee on account of the transfer of employment to the AMO Group, or
the AMO Group ceasing to be an Affiliate of the Allergan Group as of the
Distribution Date.
ARTICLE IV
ALLERGAN PENSION PLAN
4.1 Pension Plan. Allergan and AMO shall each take actions or cause actions
to be taken as necessary to accomplish the following with respect to the
Allergan Pension Plan.
(a) Effective as of the Distribution Date, AMO Employees shall cease
to accrue benefits under the Allergan Pension Plan. The Allergan Pension Plan
shall retain liability for all benefits accrued before the Distribution Date by
AMO Employees under the Allergan Pension Plan. Allergan shall take action or
cause action to be taken to ensure that all AMO Employees have a fully vested
interest in their benefits accrued under the Allergan Pension Plan as of the
Distribution Date.
(b) Allergan shall take action or cause action to be taken to ensure
that effective as of the Distribution Date, all AMO Employees will be eligible
for distribution of their accrued benefits from the Allergan Pension Plan in
accordance with the terms of the Allergan Pension Plan. AMO Employees shall be
eligible for such distribution in the same manner as if they terminated
employment as of the Distribution Date.
ARTICLE V
ALLERGAN EMPLOYEE STOCK OWNERSHIP PLAN
5.1 ESOP. Allergan and AMO shall each take actions or cause actions to be
taken as necessary to accomplish the following with respect to the Allergan
ESOP.
(a) Effective as of the Distribution Date, AMO Employees shall cease
to be eligible to receive allocations under the Allergan ESOP, including
allocation of unallocated assets in the event of the termination of the Allergan
ESOP.
(b) Effective as of the Distribution Date, Allergan shall take action
or cause action to be taken to transfer the assets and liabilities attributable
to the accounts of the AMO Employees under the Allergan ESOP that are held by
its related trust to the AMO 401(k) Plan and its related trust in accordance
with Section 414(l)
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of the Code, Treasury Regulation Section 1.414(l)-1, and Section 208 of ERISA.
Such assets of the Allergan ESOP shall be transferred in-kind to the trust
established under the AMO 401(k) Plan. AMO shall take action or cause action to
be taken to cause the AMO 401(k) Plan to assume and be solely responsible for
all liabilities relating to, arising out of, or resulting from AMO Employees
under the Allergan ESOP.
(c) Allergan and AMO each agree to take action or cause action to be
taken to ensure that no distribution of account balances from the Allergan ESOP
or the AMO 401(k) Plan are made to any AMO Employee with respect to AMO
Employees' accounts under the Allergan ESOP on account of the transfer of
employment to the AMO Group, or the AMO Group ceasing to be an Affiliate of the
Allergan Group as of the Distribution Date.
ARTICLE VI
ALLERGAN SUPPLEMENTAL RETIREMENT PLANS
6.1 Supplemental Retirement Plans. Allergan and AMO shall each take actions
or cause actions to be taken as necessary to accomplish the following with
respect to the Allergan Supplemental Retirement Plans.
(a) Effective as of the Distribution Date, AMO Employees shall cease
to accrue benefits under each Allergan Supplemental Retirement Plan. The
Allergan Supplemental Retirement Plans shall retain liability for all benefits
accrued before the Distribution Date by AMO Employees under the Allergan
Supplemental Retirement Plans. Allergan shall take action or cause action to be
taken to ensure that all AMO Employees have a fully vested interest in their
benefits accrued under the Allergan Supplemental Retirement Plans as of the
Distribution Date.
(b) Allergan shall take action or cause action to be taken to ensure
that effective as of the Distribution Date, all AMO Employees will be eligible
for distribution of their accrued benefits from the Allergan Supplemental
Retirement Plans in accordance with the terms of the respective Allergan
Supplemental Retirement Plan. AMO Employees shall be eligible for such
distributions in the same manner as if they terminated employment as of the
Distribution Date.
ARTICLE VII
ALLERGAN HEALTH AND WELFARE PLANS
7.1 Health and Welfare Plans as of the Distribution Date. Allergan and AMO
shall each take actions or cause actions to be taken as necessary to accomplish
the following with respect to the Allergan Welfare Plan and the Allergan
Supplemental Benefits Plan.
(a) Allergan Health and Welfare Plans. Effective as of the
Distribution Date (or such other date(s) as Allergan and AMO may mutually
agree), AMO Employees shall cease to be eligible to participate in the Allergan
Welfare Plan and the Allergan Supplemental Benefits Plan. AMO shall adopt the
AMO Welfare Plan and the AMO Supplemental Benefits Plan, which AMO Plans will be
effective as of the Distribution Date. AMO shall be solely responsible for the
administration of the AMO Welfare Plan and the AMO Supplemental Benefits Plan,
including the payment of all employer-related costs in establishing and
maintaining the AMO Welfare Plan and the AMO Supplemental Benefits Plan, and for
the collection and remittance of employee premiums. AMO shall bear liability
with respect to the AMO Welfare Plan and the AMO Supplemental Benefits Plan.
(b) Transfer of FSA accounts. The AMO Welfare Plan shall include a
"cafeteria plan" feature intended to satisfy Section 125 of the Code and the
regulations thereunder. Effective as of the Distribution Date (or such other
date as Allergan and AMO may mutually agree) Allergan and AMO shall cause the
liabilities attributable to the accounts of AMO Employees in the Allergan Health
Care Flexible Spending Account Program and the Allergan Dependent Care Flexible
Spending Account Program (together, the "FSA Programs") maintained under the
Allergan Welfare Plan to be assumed by the AMO Welfare Plan. The AMO Welfare
Plan (1) shall assume liability for all claims with respect to AMO Employees
submitted on or after the Distribution Date, including claims incurred but not
reported before the Distribution Date; (2) shall assume liability for all claims
with respect to AMO Employees submitted before the Distribution Date but not
paid by Allergan as of the Distribution Date; and (3) will collect and retain
all employee contributions made after the Distribution Date. Within 30 days
after the Distribution Date, Allergan will calculate the following amounts and
submit to AMO a report, with
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appropriate back-up documentation, of: (i) the aggregate amount withheld by
Allergan for AMO Employees in the FSA Programs between January 1, 2002 and the
Distribution Date (the "Withheld Amount"), and (ii) the aggregate amount of
payments made by Allergan for AMO Employees out of the FSA Programs between
January 1, 2002 and the Distribution Date (the "Paid Amount"). If the Withheld
Amount exceeds the Paid Amount, Allergan will also include with the report
payment to AMO in the amount of the difference between the Withheld Amount and
the Paid Amount. If the Paid Amount exceeds the Withheld Amount, AMO will pay to
Allergan the difference between the Paid Amount and the Withheld Amount within
30 days thereafter.
(c) Pending Treatments. Notwithstanding Subsection 7.1(a) above, all
treatments which have been pre-certified for or are being provided to an AMO
Transferred Employee or AMO Beneficiary as of the Distribution Date shall be
provided without interruption under the appropriate Allergan Plan (to the extent
such continued treatment is not provided under an AMO Plan as of the
Distribution Date) until such treatment is concluded or discontinued pursuant to
applicable Plan rules and limitations, but AMO shall continue to be responsible
for all liabilities relating to, arising out of, or resulting from such on-going
treatments as of the Distribution Date.
(d) Retiree Medical. Notwithstanding Subsection 7.1(a) above, Allergan
shall cause, or shall cause action to be taken, to ensure that AMO Employees,
who as of the Distribution Date otherwise meet the eligibility requirements of
the Allergan Retiree Medical Program under the Allergan Welfare Plan but have
not yet retired, remain eligible to participate in the Allergan Retiree Medical
Program after the Distribution Date, for so long as Allergan maintains the
program for its own employees. The Allergan Welfare Plan shall retain liability
with respect to such AMO Employees.
(e) Continuance of Elections, Co-Payments and Maximum Benefits.
(i) As of the Distribution Date and for the remainder of the plan
year in which the Distribution Date occurs (or such other period as Allergan and
AMO may mutually agree), AMO shall make its commercially reasonable best efforts
to cause the AMO Welfare Plan and the AMO Supplemental Benefits Plan to
recognize and maintain all coverage and contribution elections made by AMO
Employees under the Allergan Welfare Plan and the Allergan Supplemental Benefits
Plan and apply such elections under the AMO Welfare Plan and the AMO
Supplemental Benefits Plan for the remainder of the period or periods for which
such elections are by their terms applicable. The transfer of employment of the
AMO Employees from Allergan to AMO at any time upon or before the Distribution
Date shall neither constitute nor be treated as a "status change" or termination
of employment under the Allergan Welfare Plan and the Allergan Supplemental
Benefits Plan or the AMO Welfare Plan and the AMO Supplemental Benefits Plan.
(ii) On and after the Distribution Date, AMO shall cause the AMO
Welfare Plan and the AMO Supplemental Benefits Plan to recognize and give credit
for (A) all amounts applied to deductibles, out-of-pocket maximums, co-payments
and other applicable benefit coverage limits with respect to which such expenses
have been incurred by AMO Employees under the Allergan Welfare Plan and the
Allergan Supplemental Benefits Plan for the remainder of the calendar year in
which the Distribution Date occurs, and (B) all benefits paid to AMO Employees
under the Allergan Welfare Plan and the Allergan Supplemental Benefits Plan for
purposes of determining when such persons have reached their lifetime maximum
benefits under the AMO Welfare Plan and the AMO Supplemental Benefits Plan.
7.2 Health Plans through the Distribution Date. Except as provided in
Subsection 7.1(b) of this Agreement, Allergan shall retain financial and
administrative liability and all related obligations and responsibilities for
all claims incurred but not reported by AMO Employees and AMO Beneficiaries
before the Distribution Date (or such other date(s) as Allergan and AMO may
mutually agree) under the Allergan Welfare Plan, including any claims that were
administered by Allergan as of, on, or after the Distribution Date (or such
other date(s) as Allergan and AMO may mutually agree).
7.3 COBRA. Effective as of the Distribution Date (or such other date as
Allergan and AMO may mutually agree), and to the extent otherwise permitted
under applicable law, AMO shall assume, or shall cause the AMO Welfare Plan and
AMO Supplemental Benefits Plan to assume, responsibility for compliance with the
health care continuation coverage requirements of COBRA under the Allergan
Welfare Plan and the Allergan
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Supplemental Benefits Plan for AMO Employees and the AMO Beneficiaries that are
qualified beneficiaries (as such term is defined under COBRA). As soon as
administratively practicable after the Distribution Date (or such other date as
Allergan and AMO may mutually agree), Allergan shall provide AMO (through hard
copy, electronic format, or such other mechanism as is appropriate under the
circumstances), with a list of all such AMO Employees and AMO Beneficiaries and
the relevant information pertaining to their coverage elections and remaining
COBRA time periods.
ARTICLE VIII
EQUITY AND OTHER COMPENSATION
8.1 Allergan Bonus Plans.
(a) Participants in the AMO Pre-Spin Bonus Plans who are employees of
the AMO Business shall cease their participation in the AMO Pre-Spin Bonus Plans
on the Distribution Date (or such other date as Allergan and AMO may mutually
agree). AMO shall assume any and all liability with respect to AMO Employees
under such AMO Pre-Spin Bonus Plans; provided, however, that during such period
until the Distribution Date, Allergan's Chief Financial Officer, in his sole
discretion, shall determine whether: (i) any bonus pool, or portion thereof
shall be accrued under any AMO Pre-Spin Bonus Plans for the benefit of AMO
Employees and (ii) the amount of any such accruals. To the extent any such
amounts are accrued, they shall be based, with respect to corporate objectives,
on the corporate performance of AMO and shall be reserved by Allergan and the
cash for such accruals transferred to AMO and paid to such AMO Employees by AMO
pursuant to the terms and conditions of the AMO Pre-Spin Bonus Plans for which
such accruals are made, except that such payment shall be made on such date as
Allergan and AMO may mutually agree.
(b) AMO shall establish the AMO Bonus Plans for AMO Employees for AMO
fiscal period(s) beginning on and after the Distribution Date (or such other
date as Allergan and AMO may mutually agree), to be administered by the
Compensation Committee of the AMO Board of Directors.
8.2 Deferred Compensation Plan.
(a) AMO shall adopt the AMO Deferred Compensation Plan and the AMO
Rabbi Trust prior to the Distribution Date.
(b) Effective as of the Distribution Date (or such other date as
Allergan and AMO may mutually agree): (i) AMO Employees shall cease to be
eligible to make deferrals to, or receive allocations under, the Allergan
Deferred Compensation Plan, (ii) Allergan shall cause the assets attributable to
the accounts of AMO Employees in the Allergan Deferred Compensation Plan to be
transferred to AMO or the trustee of the AMO Rabbi Trust as soon as
administratively feasible, and (iii) AMO shall assume, or shall cause the AMO
Deferred Compensation Plan to assume, all liabilities relating to, arising out
of, or resulting from AMO Employees under the Allergan Deferred Compensation
Plan.
(c) Allergan and AMO each agree to take action or cause action to be
taken to ensure that no distribution of account balances from the Allergan
Deferred Compensation Plan or AMO Deferred Compensation Plan are made to any AMO
Employee on account of the transfer of employment to the AMO Group, or the AMO
Group ceasing to be an Affiliate of the Allergan Group as of the Distribution
Date.
8.3 AMO Incentive Plan. AMO shall adopt the AMO Incentive Plan prior to the
Distribution Date. Allergan, as sole shareholder of AMO, shall approve the
adoption of the AMO Incentive Plan prior to the Distribution Date. The AMO
Incentive Plan shall provide for the granting of "incentive stock options"
(within the meaning of Section 422 of the Code and the regulations promulgated
thereunder), non-qualified stock options, restricted stock, dividend
equivalents, stock appreciation rights, and stock payments, to eligible
employees of the AMO Group.
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8.4 Allergan Options.
(a) Option Assumption by AMO. Effective as of the Distribution Date,
each unvested outstanding Allergan Option issued under the Allergan Incentive
Plan and held by an AMO Employee, shall be, in connection with the Distribution,
cancelled and reissued as an option to purchase shares of common stock of AMO
under the AMO Incentive Plan. Each Allergan Option so cancelled and reissued by
AMO shall continue to have, and be subject to, the same terms and conditions set
forth in the Allergan Incentive Plan and as provided in the respective award
terms and conditions and the AMO Incentive Plan governing such option as of the
Distribution Date (or such other date as Allergan and AMO may mutually agree),
except that with respect to such unvested options, the number shares of AMO
common stock underlying such unvested option, and the exercise price therefor,
shall be determined in the manner set forth in the Minutes of the Special
Meeting of the Organization and Compensation Committee of the Board of Directors
of Allergan, Inc., held on January 18, 2002, as amended.
(b) Assumption Criteria. The intention of Allergan and AMO is that the
cancellation and reissuance of Allergan Options pursuant to Subsection 8.4(a)
shall meet the criteria set forth with respect thereto in the Minutes of the
Special Meeting of the Organization and Compensation Committee of the Board of
Directors of Allergan, Inc., held on January 18, 2002.
(c) Certain Non-U.S. Optionees. Except as may otherwise be agreed upon
by Allergan and AMO and/or as set forth in Schedule 8.4, this Section 8.4 shall
govern the treatment of unvested outstanding Allergan Options held by non-U.S.
AMO Employees.
8.5 AMO Stock Purchase Plan and AMO International Stock Purchase Plan.
(a) AMO Stock Purchase Plan. AMO shall adopt the AMO Stock Purchase
Plan prior to the Distribution Date. Allergan, as sole shareholder of AMO, shall
approve the adoption of the AMO Stock Purchase Plan prior to the Distribution
Date. The AMO Stock Purchase Plan is intended to be an "employee stock purchase
plan," qualified under Section 423(b) of the Code, and shall be for the benefit
of the eligible employees of AMO and its U.S. Subsidiaries.
(b) AMO International Stock Purchase Plan. AMO shall adopt the AMO
International Stock Purchase Plan prior to the Distribution Date. Allergan, as
sole shareholder of AMO, shall approve the adoption of the AMO International
Stock Purchase Plan prior to the Distribution Date. The AMO International Stock
Purchase Plan is not intended to be an "employee stock purchase plan," qualified
under Section 423(b) of the Code, and shall be for the benefit of the eligible
employees of AMO's non-U.S. Subsidiaries.
ARTICLE IX
ADMINISTRATIVE PROVISIONS
9.1 Contributions to Trusts. With respect to Allergan Plans to which AMO
Employees make contributions, Allergan shall use reasonable procedures to
determine assets and liabilities attributable to AMO Employees under each such
Plan through the Distribution Date, taking into account such contributions,
settlements, refunds and similar payments.
9.2 Sharing of Participant Information. In addition to the responsibilities
and obligations of Allergan and AMO specified in the Contribution and
Distribution Agreement, Allergan and AMO shall share, or cause to be shared, all
participant information that is necessary or appropriate for the efficient and
accurate administration of each of the Allergan Plans and the AMO Plans during
the respective periods applicable to such Plans as AMO and Allergan may mutually
agree. Allergan and AMO and their respective authorized agents shall, subject to
applicable laws of confidentiality and data protection, be given reasonable and
timely access to, and may make copies of, all information relating to the
subjects of this Agreement in the custody of the other party or its agents, to
the extent necessary or appropriate for such administration in accordance with
Section 7.01 of the Contribution and Distribution Agreement.
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9.3 Beneficiary Designations. All beneficiary designations made by AMO
Employees for the Allergan Plans shall be transferred to and be in full force
and effect under the corresponding AMO Plans, in accordance with the terms of
each such applicable AMO Plan, until such beneficiary designations are replaced
or revoked by the AMO Employees who made the beneficiary designations.
9.4 Requests for IRS and DOL Opinions. Allergan and AMO shall make such
applications to regulatory agencies, including the IRS and DOL, as may be
necessary or appropriate. AMO and Allergan shall cooperate fully with one
another on any issue relating to the transactions contemplated by this Agreement
for which Allergan and/or AMO elects to seek a determination letter or private
letter ruling from the IRS or an advisory opinion from the DOL.
9.5 Fiduciary Matters. Allergan and AMO each acknowledge that actions
contemplated to be taken pursuant to this Agreement may be subject to fiduciary
duties or standards of conduct under ERISA or other applicable law, and that no
party shall be deemed to be in violation of this Agreement if such party fails
to comply with any provisions hereof based upon such party's good faith
determination that to do so would violate such a fiduciary duty or standard.
9.6 Consent of Third Parties. If any provision of this Agreement is
dependent on the consent of any third party (such as a vendor) and such consent
is withheld, Allergan and AMO shall use their commercially reasonable best
efforts to implement the applicable provisions of this Agreement. If any
provision of this Agreement cannot be implemented due to the failure of such
third party to consent, Allergan and AMO shall negotiate in good faith to
implement such provision in a mutually satisfactory manner.
ARTICLE X
EMPLOYMENT-RELATED MATTERS.
10.1 Employment of Employees with U.S. Work Visas. AMO will request
amendments to the nonimmigrant visa status of AMO Employees with U.S. work visas
authorizing them to work for Allergan, excluding the AMO Group, to request
authorization to work for AMO effective as of the Distribution Date.
10.2 Confidentiality and Proprietary Information. No provision of this
Agreement shall be deemed to release any individual for any violation of the
Allergan non-competition guideline or any agreement or policy pertaining to
confidential or proprietary information of any member of the Allergan Group, or
otherwise relieve any individual of his or her obligations under such
non-competition guideline, agreement, or policy.
10.3 Personnel Records. Within the United States, to the extent personnel
records relate to AMO Employees' active employment by, leave of absence from, or
termination of employment with AMO and subject to applicable laws on
confidentiality and data protection, AMO shall have access to the personnel
records of AMO Employees maintained by Allergan in accordance with Section 7.01
of the Contribution and Distribution Agreement. Outside of the United States,
AMO shall take custody of such records.
10.4 Medical Records. Within the United States, to the extent medical
records relate to AMO Employees' active employment by, leave of absence from, or
termination of employment with AMO and subject to applicable laws on
confidentiality and data protection, AMO shall have access to the medical
records of AMO Employees maintained by Allergan in accordance with Section 7.01
of the Contribution and Distribution Agreement. Outside of the United States,
AMO shall take custody of such records.
10.5 Unemployment Insurance Program. Allergan shall retain liability for
all unemployment compensation claims filed before the Distribution Date by AMO
Employees. Before the Distribution Date, Allergan shall use its commercially
reasonable best efforts for and on behalf of AMO to procure an agreement with
its third party unemployment insurance administrator comparable in the aggregate
in all Material Features to the Allergan third party unemployment insurance
agreement. AMO shall not unreasonably withhold its consent to adopt such an
agreement with such administrator.
12
10.6 Worker's Compensation Claims. All worker's compensation claims shall
be treated as Liabilities subject to Section 2.1 of this Agreement.
10.7 No Third-Party Beneficiaries. The provisions of this Agreement, the
Contribution and Distribution Agreement and the Ancillary Agreement are solely
for the benefit of the parties and are not intended to confer upon any Person,
except the parties hereto, any rights or remedies hereunder, and there are no
third party beneficiaries of this Agreement, the Contribution and Distribution
Agreement, and any Ancillary Agreement. Neither this Agreement, the Contribution
and Distribution Agreement nor any Ancillary Agreement shall 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, the
Contribution and Distribution Agreement, or any Ancillary Agreement. No
provision of this Agreement, the Contribution and Distribution Agreement, or any
Ancillary Agreement shall be construed to create any right or accelerate
entitlement to any compensation or benefit whatsoever on the part of any
Allergan Employee or AMO Employee, or any other former, present or future
employee of Allergan or AMO under any Allergan Plan or AMO Plan or otherwise.
ARTICLE XI
GENERAL PROVISIONS
11.1 Effect if Distribution Does Not Occur. If the Distribution does not
occur, then all actions and events that are, under this Agreement, to be taken
or occur effective as of the Distribution Date, or otherwise in connection with
the Distribution, shall not be taken or occur except to the extent specifically
agreed by Allergan and AMO.
11.2 Relationship of Parties. Nothing in this Agreement shall be deemed or
construed by the parties or any third party as creating the relationship of
principal and agent, partnership or joint venture between the parties, the
understanding and agreement being that no provision contained herein, and no act
of the parties, shall be deemed to create any relationship between the parties
other than the relationship set forth herein.
11.3 Affiliates. Each of Allergan and AMO shall cause to be performed and
hereby guarantee the performance of any and all actions of the Allergan Group or
the AMO Group, respectively.
11.4 Governing Law. To the extent not preempted by applicable federal law,
including, without limitation, ERISA, the Code and applicable securities laws,
this Agreement shall be governed by, construed and interpreted in accordance
with the laws of the State of California, irrespective of the choice of law
principles of the State of California, as to all matters, including matters of
validity, construction, effect, performance and remedies.
11.5 Assignment. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective legal representatives and
successors, and nothing in this Agreement, express or implied, is intended to
confer upon any other Person any rights or remedies of any nature whatsoever
under or by reason of this Agreement. This Agreement may be enforced separately
by each member of the Allergan Group and each member of the AMO Group. Neither
party may assign this Agreement or any rights or obligations hereunder, without
the prior written consent of the other party, and any such assignment shall be
void; provided, however, either party may assign this Agreement to a successor
entity in conjunction with such party's reincorporation.
11.6 Severability. If any term or other provision of this Agreement is
determined to be invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to either party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible and in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the fullest possible extent.
11.7 Interpretation. The headings contained in this Agreement or any
Schedule hereto and in the table of contents to this Agreement are for reference
purposes only and shall not affect in any way the meaning or
13
interpretation of this Agreement. Any capitalized term used in any Schedule but
not otherwise defined therein shall have the meaning assigned to such term in
this Agreement. When a reference is made in this Agreement to an Article,
Section or Schedule, such reference shall be to an Article of, Section of, or
Schedule to this Agreement unless otherwise indicated.
11.8 Amendment. The Board of Directors of AMO and Allergan may mutually
agree to amend the provisions of this Agreement at any time or times, for any
reason, either prospectively or retroactively, to such extent and in such manner
as the Boards mutually deem advisable. Each Board may delegate its amendment
power, in whole or in part, to one or more Persons or committees as it deems
advisable. No change or amendment will be made to this Agreement, except by an
instrument in writing signed by authorized individuals.
11.9 Termination. This Agreement may be terminated and the Distribution
abandoned at any time prior to the Distribution Date by and in the sole
discretion of Allergan without the approval of AMO. In the event of termination
pursuant to this Section, no party shall have any liability of any kind to the
other party.
11.10 Conflict. In the event of any conflict between the provisions of this
Agreement and the Contribution and Distribution Agreement or any Ancillary
Agreement, the provisions of this Agreement shall control.
11.11 Entire Agreement. This Agreement and the Schedules hereto and the
specific agreements contemplated herein 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.
11.12 Counterparts. This Agreement, including the Schedules hereto and the
other documents referred to herein, may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, each of the parties have caused this Employee Matters
Agreement to be executed on its behalf by its officers thereunto duly authorized
on the day and year first above written.
ALLERGAN, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Title: Chairman of the Board, President and Chief
Executive Officer
ADVANCED MEDICAL OPTICS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive Officer
14