EXHIBIT 10.34
RETENTION AGREEMENT
This Retention Agreement (the "Agreement") is made and entered
into as of January 18, 2002, by and among Advanced Medical Optics, Inc., a
Delaware corporation (the "Company"), Allergan, Inc., a Delaware corporation
("Allergan"), and Xxxxx X. Xxxxx ("Executive").
RECITALS
WHEREAS, the Company is a wholly-owned subsidiary of Allergan.
WHEREAS, Executive is employed by, and receives compensation
and benefits from, Allergan.
WHEREAS, during the Term of the Agreement, Executive shall
additionally be employed as the Chief Executive Officer of the Company, without
entitlement to any additional compensation or benefits from the Company for such
employment.
WHEREAS, the parties anticipate the consummation of the
spinoff transactions approved by the Board of Directors of Allergan by
resolutions approved on January 18, 2002 (the consummation of such transactions
referred to herein as the "Spinoff").
NOW, THEREFORE, in consideration of the foregoing recitals and
the respective covenants and agreements of the parties contained herein, the
parties agree as follows:
ARTICLE 1.
EFFECTIVE DATE; TERM
1.1 Effective Date. This Agreement shall become effective as of the
date herein above written (the "Effective Date").
1.2 Term of Agreement. The term of this Agreement shall commence on the
Effective Date and shall continue through December 31, 2002 (the "Term"), unless
terminated earlier in accordance with Article 2 of this Agreement, in which case
the Term shall expire upon such earlier termination. Upon the expiration of the
Term, Executive's employment with the Company hereunder shall terminate.
1.3 Concurrent Employment with Allergan. Effective as of the Effective
Date, Executive's employment with the Company as the Chief Executive Officer of
the Company shall commence. During the Term, Executive shall continue to be
employed by Allergan and shall continue to receive his compensation and benefits
from Allergan, in accordance with the terms of his employment with Allergan as
it existed immediately prior to the Effective Date. During the Term, Executive
shall not be entitled to receive any additional compensation or benefits from
the Company for his employment with the Company.
ARTICLE 2.
EARLY TERMINATION OF AGREEMENT
2.1 Termination of Agreement. Notwithstanding the provisions of Article
1, if the Spinoff occurs on or before December 31, 2002, then, upon the Spinoff,
the Term shall immediately end, this Agreement shall immediately terminate and
all rights and obligations hereunder shall immediately terminate.
2.2 Effectiveness of Employment Agreement. In the event the Spinoff
occurs on or before December 31, 2002, then upon the Spinoff and the concurrent
termination of this Agreement pursuant to Section 2.1, above, the Employment
Agreement by and between the Company and Executive dated as of January 18, 2002
(the "Employment Agreement"), shall immediately become effective.
ARTICLE 3.
RETENTION PAYMENT
3.1 Retention Payment. Allergan shall pay Executive a cash lump sum (a
"Retention Payment") in the event of the circumstances described in Section 3.2,
3.3 or 3.4, in such amount as is determined below in this Article 3; provided,
however, that in no event shall Executive be paid more than one Retention
Payment under this Article 3.
3.2 Pre-Spinoff Sale without Termination of Employment. If there is a
Pre-Spinoff Sale, and Executive is employed by Allergan on the date of the
Pre-Spinoff Sale, and Executive is employed with Allergan on the date that is 30
days after the date of the Pre-Spinoff Sale, then Allergan shall pay Executive a
Retention Payment in an amount equal to three times the Executive's
Compensation.
3.3 Pre-Spinoff Sale with Termination of Employment. If there is a
Pre-Spinoff Sale, and either (a) Executive is employed by Allergan on the date
of the Pre-Spinoff Sale, and Executive's employment with Allergan is terminated
in a Qualifying Termination, or is terminated by Executive without Good Reason,
within 30 days after the date of the Pre-Spinoff Sale, or (b) Executive's
employment with Allergan is terminated in a Qualifying Termination during the
Term and prior to the date of such Pre-Spinoff Sale, then Allergan shall pay
Executive a Retention Payment in an amount equal to six times the Executive's
Compensation, plus a lump sum payment equal to Executive's accrued unused
vacation.
3.4 No Pre-Spinoff Sale on or before December 31, 2002. If neither the
Spinoff nor a Pre-Spinoff Sale occurs on or before December 31, 2002, and if:
(a) Executive is employed by Allergan on December 31, 2002, and Executive's
employment with Allergan is terminated in a Qualifying Termination, or is
terminated by Executive without Good Reason, on or before January 30, 2003, or
(b) Executive's employment with Allergan is terminated in a Qualifying
Termination prior to December 31, 2002, then Allergan shall pay Executive a
Retention Payment in an amount equal to three times the Executive's
Compensation.
3.5 Compensation. "Compensation" means Executive's Base Salary under
the Employment Agreement plus a 100% bonus at a target of 75% of such Base
Salary.
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3.6 General Release. Notwithstanding anything else in this Agreement,
the obligation of Allergan to pay Executive a Retention Payment (whether or not
such obligation is delegated to the Company pursuant to Section 8.3, below)
shall be conditioned on Executive's execution of a general release of claims in
the form required by Allergan. In addition, in any situation in which
Executive's employment with Allergan terminates, Allergan will continue to honor
its agreement to repatriate Executive to the United States in accordance with
Executive's current agreements with Allergan and Allergan's standard
repatriation policies.
ARTICLE 4.
DEFINITIONS APPLICABLE TO RETENTION PAYMENT
4.1 Spinoff. For purposes of this Agreement, "Spinoff" shall mean the
consummation of the spinoff transaction approved by the Board of Directors of
Allergan by resolutions adopted on January 18, 2002.
4.2 Pre-Spinoff Sale. For purposes of this Agreement, "Pre-Spinoff
Sale" shall mean the consummation of any of the following transactions during
the Term:
(a) The sale, transfer, exchange or other disposition of all
or substantially all of the assets of the Company or of one or both of the
businesses which are contemplated to comprise the Company as of the Spinoff;
(b) The sale, transfer, exchange or other disposition of a
majority of the equity interest in the Company other than to an affiliate of
Allergan; or
(c) A merger, consolidation or reorganization involving the
Company, in which an entity which is not an affiliate of Allergan or the Company
acquires a majority equity interest in the Company and in which transaction the
Company is not the surviving corporation.
Notwithstanding the foregoing, the Spinoff shall not be treated as a Pre-Spinoff
Sale, nor will a Change in Control of Allergan, as defined in Allergan's current
change in control agreements.
4.3 Qualifying Termination. For purposes of this Agreement, a
"Qualifying Termination" shall mean termination of Executive's employment with
Allergan during the Term due to a termination of Executive's employment either
(i) by Allergan without Cause, (ii) by Executive for Good Reason (a "Voluntary
Resignation for Good Reason"), (iii) by reason of Executive's death, or (iv) by
reason of Executive's physical or mental disability or infirmity which, in the
opinion of a competent physician selected by Allergan's Board of Directors,
renders Executive unable to perform his duties for more than 120 days during any
180-day period.
(a) For purposes of this Agreement, "Cause" shall be limited
to only three types of events:
(i) the willful and continued refusal of Executive to
comply with a lawful, written instruction of Allergan's Board of
Directors so long as the instruction is
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consistent with the scope and responsibilities of Executive's position
and Executive has failed to end such willful and continued refusal
within fifteen (15) business days of written notice thereof from
Allergan;
(ii) willful misconduct by Executive which results in
a material financial loss to Allergan (or to any of its affiliated
companies) or material injury to its public reputation (or to the
public reputation of any of its affiliated companies); or
(iii) Executive's conviction of any felony.
Notwithstanding the foregoing, no act or failure to act on Executive's part
shall be deemed "willful" unless done, or omitted to be done, by Executive not
in good faith and without reasonable belief that the action or omission was in
the best interest of Allergan.
(b) A Voluntary Resignation for Good Reason shall require
Executive to provide at least sixty (60) days' written notice to Allergan in the
form of a notice of resignation (the "Notice of Resignation"). The Notice of
Resignation shall set forth the circumstances which in Executive's view
constitute Good Reason hereunder and shall be delivered to Allergan within sixty
(60) days of the occurrence of the applicable Good Reason event. For purposes of
this Agreement, "Good Reason" means:
(i) Executive's overall compensation is reduced or
adversely modified in any material respect, or
(ii) Executive's duties are materially changed.
For purposes of subsection (ii), above, Executive's duties shall be considered
to have been "materially changed" if, without Executive's express written
consent, there is any substantial diminution or adverse modification in
Executive's overall position, responsibilities or reporting relationship, or if,
without Executive's express written consent, Executive's job location is
transferred to a site more than fifty (50) miles away from his or her then
current place of employment (except for a repatriation of Executive in 2003 back
to the United States). During the period of notice set forth above in this
subsection (b), Allergan shall be afforded reasonable opportunity to establish,
to the reasonable satisfaction of Executive, that the Good Reason circumstances
cited in Executive's Notice of Resignation were not present on the date of such
Notice of Resignation, or are no longer present, in which case Executive's
employment shall not terminate due to a Voluntary Resignation for Good Reason.
Notwithstanding the foregoing, the termination of Executive's employment with
Allergan in accordance with the Employment Agreement, and Executive's employment
under the Employment Agreement, shall not constitute "Good Reason."
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ARTICLE 5.
EXCISE TAXES
5.1 Indemnification for Excise Tax. In the event that Executive becomes
entitled to receive a Retention Payment hereunder, and such payment or any other
benefits or payments (including transfers of property, within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") (or
any successor thereto) or the regulations thereunder) that Executive receives,
or is to receive, pursuant to this Agreement or any other agreement, plan or
arrangement with the Company or Allergan in connection with a Pre-Spinoff Sale
of the Company ("Other Benefits") shall be subject to the tax imposed pursuant
to Section 4999 of the Code (or any successor thereto) or any comparable
provision of state law (an "Excise Tax"), the following rules shall apply:
(a) Allergan shall pay to Executive, within 30 days after a
Qualifying Termination, an additional amount (the "Gross-Up Payment") such that
the net amount retained by Executive, after deduction of any Excise Tax with
respect to the Retention Payment or the Other Benefits and any federal, state
and local income tax, employment tax and Excise Tax upon such Gross-Up Payment,
is equal to the amount that would have been retained by Executive if such Excise
Tax were not applicable, as determined by the accounting firm (the "Auditors")
serving as the Company's independent auditors immediately prior to the
Pre-Spinoff Sale. It is intended that Executive shall not suffer any loss or
expense resulting from the assessment of any Excise Tax or the Company's
reimbursement of Executive for payment of any such Excise Tax.
(b) For purposes of determining whether any of the Retention
Payment or Other Benefits will be subject to an Excise Tax and the amount of
such Excise Tax, (i) any other payment or benefits received or to be received by
Executive in connection with a Pre-Spinoff Sale of the Company or Executive's
termination of employment (whether pursuant to the terms of this Agreement or
any other plan, arrangement or agreement with the Company or Allergan, any
person whose actions result in a Pre-Spinoff Sale or any person affiliated with
the Company or Allergan or such person) shall be treated as "parachute payments"
within the meaning of Section 280G(b)(2) of the Code (or any successor thereto),
and all "excess parachute payments" within the meaning of Section 280G(b)(1) of
the Code (or any successor thereto) shall be treated as subject to the Excise
Tax, unless in the opinion of tax counsel selected by the Auditors and
acceptable to Executive such other payments or benefits (in whole or in part) do
not constitute parachute payments, or such excess parachute payments (in whole
or in part) represent reasonable compensation for services actually rendered
within the meaning of Section 280G(b)(4) of the Code (or any successor thereto),
(ii) the amount of the Retention Payment and Other Benefits which shall be
treated as subject to the Excise Tax shall be equal to the lesser of (A) the
total amount of the Retention Payment or Other Benefits or (B) the amount of
excess parachute payments within the meaning of Sections 280G(b)(1) and (4) of
the Code (or any successor or successors thereto), after applying clause (i),
above, and (iii) the value of any non-cash benefits or any deferred payment or
benefit shall be determined by the Company's independent auditors in accordance
with the principles of Sections 280G(d)(3) and (4) of the Code (or any successor
or successors thereto).
(c) For purposes of determining the amount of the Gross-Up
Payment, Executive shall be deemed to pay federal income taxes at the highest
marginal rate of federal
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income taxation in the calendar year in which the Gross-Up Payment is to be made
and state and local income taxes at the highest marginal rates of taxation in
the state and locality of Executive's residence on the date of Executive's
Qualifying Termination, net of the maximum reduction in federal income taxes
which could be obtained from deduction of such state and local taxes.
(d) In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at the time
of Executive's Qualifying Termination, Executive shall repay to Allergan (or the
Company, as the case may be), at the time that the amount of such reduction in
Excise Tax is finally determined, the portion of the Gross-Up Payment
attributable to such reduction plus interest on the amount of such repayment at
the rate provided in Section 1274(b)(2)(B) of the Code (or any successor
thereto) (the "Applicable Rate"). In the event that the Excise Tax is determined
to exceed the amount taken into account hereunder at the time of such Qualifying
Termination (including by reason of any payment the existence or amount of which
cannot be determined at the time of the Gross-Up Payment), Allergan shall make
an additional Gross-Up Payment in respect of such excess (plus interest,
determined at the Applicable Rate, payable with respect to such excess) at the
time that the amount of such excess is finally determined.
ARTICLE 6.
MITIGATION OR OFFSET
(a) Executive shall not be required to seek other employment
(in the event of a termination of employment with the Company) or to reduce any
amount payable to him under Article 3 or 5 hereof, and no such amount shall be
reduced on account of any compensation received by Executive from other
employment which may be obtained in the event of a termination of employment
with the Company. However, Allergan's obligation to pay any amount under this
Agreement shall be reduced by any amount owed by the Executive to Allergan or
the Company.
ARTICLE 7.
RESTRICTIVE COVENANTS
7.1 Confidentiality Covenant. Executive hereby agrees that Executive
shall not, directly or indirectly, disclose or make available to any person,
firm, corporation, association or other entity for any reason or purpose
whatsoever, any Confidential Information (as hereinafter defined). For a period
of five (5) years after the termination of this Agreement, Executive agrees
that, upon termination of Executive's employment with the Company, all
Confidential Information in Executive's possession that is in written or other
tangible form (together with all copies or duplicates thereof, including
computer files) shall be returned to the Company and shall not be retained by
Executive or furnished to any third party, in any form except as provided
herein; provided, however, that Executive shall not be obligated to treat as
confidential, or return to the Company copies of any Confidential Information
that (i) was publicly known at the time of disclosure to Executive, (ii) becomes
publicly known or available thereafter other than by any means in violation of
this Agreement or any other duty owed to the Company by any person or entity, or
(iii) is lawfully disclosed to Executive by a third party. As used in this
Agreement, the
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term "Confidential Information" means: information disclosed to Executive or
known by Executive as a consequence of or through Executive's relationship with
the Company, about the products, research and development efforts, regulatory
efforts, manufacturing processes, customers, employees, business methods, public
relations methods, organization, procedures or finances, including, without
limitation, information of or relating to customer lists, of the Company and its
affiliates.
7.2 Solicitation of Employees. Executive hereby agrees that during the
Term, Executive shall not, either on Executive's own account or jointly with or
as a manager, agent, officer, employee, consultant, partner, joint venturer,
owner or stockholder or otherwise on behalf of any other person, firm or
corporation, directly or indirectly solicit or attempt to solicit away from the
Company any of its officers or employees or offer employment to any person who,
on or during the six (6) months immediately preceding the date of such
solicitation or offer, is or was an officer or employee of the Company;
provided, however, that a general advertisement to which an employee of the
Company responds shall in no event be deemed to result in a breach of this
Section 7.2.
7.3 Enforcement.
(a) The parties intend that the provisions of this Article 7
shall be fully enforceable as set forth herein. To the extent that any court of
competent jurisdiction finds that any such provision is enforceable by reason of
its duration or scope, the parties agree that it shall be enforced insofar as it
may be enforced within the limits of the law of that jurisdiction, but that the
Agreement as a whole shall be unaffected elsewhere.
(b) Executive agrees that it would be difficult to compensate
Allergan or the Company fully for damages for any violation of the provisions of
this Agreement, including, without limitation, the provisions of this Article 7.
Accordingly, Executive specifically agrees that Allergan and the Company and
their respective successors and assigns shall be entitled to temporary and
permanent injunctive relief to enforce the provisions of this Agreement. This
provision with respect to injunctive relief shall not, however, diminish the
right of Allergan or the Company to claim and recover damages in addition to
injunctive relief.
(c) If Executive breaches any provision of Article 7, the
rights of Executive (or Executive's estate) to a benefit under the Agreement,
and the rights of a surviving spouse or any other person to a benefit under the
Agreement, shall be forfeited, unless the Company's Board of Directors (the
"Board") determines that such activity is not detrimental to the best interests
of the Company and its affiliates. Such forfeiture shall be in addition to any
other remedy of the Company under the Agreement or at law and in equity with
respect to such breach. However, if Executive ceases such activity and notifies
the Board of this action, Executive's (or Executive's estate's) right to receive
a benefit, and any right of a surviving spouse or any other person to a benefit,
may be restored within sixty (60) days of said notification, unless the Board in
its sole discretion determines that the prior activity has caused serious injury
to the Company and its affiliates, which determination shall be final and
conclusive.
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ARTICLE 8.
GENERAL PROVISIONS
8.1 Entire Agreement and Modification. This Agreement constitutes the
entire agreement between the parties relating to the employment of the Executive
by the Company during the Term or relating to retention payments with respect to
the Term, and there are no representations, warranties or commitments, other
than those set forth herein, which relate to such subject matter. This Agreement
may be amended or modified only by an instrument in writing executed by all of
the parties hereto.
8.2 Successors.
(a) This Agreement is personal to Executive, and without the
prior written consent of Allergan and the Company shall not be assignable by
Executive other than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by Executive's legal
representatives.
(b) The rights and obligations of Allergan and the Company
under this Agreement shall inure to the benefit of and shall be binding upon
their respective successors and assigns.
8.3 Delegation of Payment Obligations. Allergan may, in its sole
discretion, delegate to the Company any or all of the obligations of Allergan to
make payments to Executive hereunder. To the extent that The Company actually
makes such payments, such actions shall be in satisfaction of the obligations of
Allergan hereunder. To the extent that The Company does not make such payments,
such payments shall remain the obligation of Allergan hereunder.
8.4 No Waiver. No waiver, by conduct or otherwise, by any party of any
term, provision, or condition of this Agreement, shall be deemed or construed as
a further or continuing waiver of any such term, provision, or condition nor as
a waiver of a similar or dissimilar condition or provision at the same time or
at any prior or subsequent time.
8.5 Remedies Not Exclusive. No remedy conferred by any of the specific
provisions of this Agreement is intended to be exclusive of any other remedy,
except as expressly provided in this Agreement, and each and every remedy shall
be cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing in law or in equity or by statute or otherwise. No
failure by any party to exercise, and no delay in exercising, any rights shall
be construed or deemed to be a waiver thereof, nor shall any single or partial
exercise by any party preclude any other or future exercise thereof or the
exercise of any other right.
8.6 Notices. Any notice or communications required or permitted to be
given to the parties hereto shall be delivered personally, sent via facsimile or
via an overnight courier service or be sent by United States registered or
certified mail, postage prepaid and return receipt requested, and addressed or
delivered as follows, or as such other addresses the party addressed may have
substituted by notice pursuant to this Section:
(a) If to the Company: Advanced Medical Optics, Inc.
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: General Counsel
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(b) If to Allergan: Allergan, Inc.
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: General Counsel
(c) If to Executive: Xxxxx X. Xxxxx
X.X. Xxx 00000
Xxxxxx, XX 00000
Such notices or communications shall be deemed given upon delivery or, if
earlier, one (1) day after being sent by overnight courier or three (3) days
after being mailed by registered or certified mail, as provided above.
8.7 Governing Law. This Agreement is made and entered into in the State
of California, and shall be governed by the laws of California, without giving
effect to the principles of conflict of laws thereof.
8.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one Agreement.
8.9 Captions. The captions of this Agreement are inserted for
convenience and do not constitute a part hereof.
8.10 Severability. In case any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement shall
be construed as if such invalid, illegal or unenforceable provision had never
been contained herein and there shall be deemed substituted for such invalid,
illegal or unenforceable provision such other provision as will most nearly
accomplish the intent of the parties to the extent permitted by the applicable
law. In case this Agreement, or any one or more of the provisions hereof, shall
be held to be invalid, illegal or unenforceable within any governmental
jurisdiction or subdivision thereof, this Agreement or any such provision
thereof shall not as a consequence thereof be deemed to be invalid, illegal or
unenforceable in any other governmental jurisdiction or subdivision thereof.
8.11 Survival. The representations and warranties contained herein and
the Executive's obligations under Article 7 shall survive termination of the
Term and of the Agreement as provided herein.
8.12 Dispute Resolution.
(a) Any controversy or dispute between the parties involving
the construction, interpretation, application or performance of the terms,
covenants, or conditions of this Agreement or in any way arising under this
Agreement (a "Covered Dispute") shall, on demand
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by either of the parties by written notice served on the other party in the
manner prescribed in Section 8.6 hereof, be referenced pursuant to the
procedures described in California Code of Civil Procedure ("CCP") Sections 638,
et seq., as they may be amended from time to time (the "Reference Procedures"),
to a retired Judge from the Superior Court for the County of Los Angeles or the
County of Orange for a decision.
(b) The Reference Procedures shall be commenced by either
party by the filing in the Superior Court of the State of California for the
County of Orange of a petition pursuant to CCP Section 638(1) (a "Petition").
Said Petition shall designate as a referee a Judge from the list of retired Los
Angeles County and Orange County Superior Court Judges who have made themselves
available for trial or settlement of civil litigation under said Reference
Procedures. If the parties hereto are unable to agree on the designation of a
particular retired Los Angeles County or Orange County Superior Court Judge or
the designated Judge is unavailable or unable to serve in such capacity, request
shall be made in said Petition that the Presiding or Assistant Presiding Judge
of the Orange County Superior Court appoint as referee a retired Los Angeles
County or Orange County Superior Court Judge from the aforementioned list.
(c) Except as hereafter agreed by the parties, the referee
shall apply the law of California in deciding the issues submitted hereunder.
Unless formal pleadings are waived by agreement among the parties and the
referee, the moving party shall file and serve its complaint within 15 days from
the date a referee is designated as provided herein, and the other party shall
have 15 days thereafter in which to plead to said complaint. Each of the parties
reserves its respective rights to allege and assert in such pleadings all
claims, causes of action, contentions and defenses which it may have arising out
of or relating to the general subject matter of the Covered Dispute that is
being determined pursuant to the Reference Procedures. Reasonable notice of any
motions before the referee shall be given, and all matters shall be set at the
convenience of the referee. Discovery shall be conducted as the parties agree or
as allowed by the referee. Unless waived by each of the parties, a reporter
shall be present at all proceedings before the referee.
(d) It is the parties' intention by this Section 8.11 that all
issues of fact and law and all matters of a legal and equitable nature related
to any Covered Dispute will be submitted for determination by a referee
designated as provided herein. Accordingly, the parties hereby stipulate that a
referee designated as provided herein shall have all powers of a Judge of the
Superior Court including, without limitation, the power to grant equitable and
interlocutory and permanent injunctive relief.
(e) Each of the parties specifically (i) consents to the
exercise of jurisdiction over his or her person by a referee designated as
provided herein with respect to any and all Covered Disputes; and (ii) consents
to the personal jurisdiction of the California courts with respect to any appeal
or review of the decision of any such referee.
(f) Each of the parties acknowledges that the decision by a
referee designated as provided herein shall be a basis for a judgment as
provided in CCP Section 644 and shall be subject to exception and review as
provided in CCP Section 645.
8.13 Attorneys' Fees. If any legal action or other proceeding is
brought for the enforcement of the Agreement, or because of an alleged dispute,
breach or default in connection
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with any of the provisions of the Agreement, the successful or prevailing party
shall be entitled to recover attorneys' fees and other expenses and costs
incurred in that action or proceeding, in addition to any other relief that may
be granted.
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8.14 Executive's Acknowledgment. Executive acknowledges (a) that he has
consulted with or has had the opportunity to consult with independent counsel of
his own choice concerning this Agreement and has been advised to do so by
Allergan and the Company, and (b) that he has read and understands the
Agreement, is fully aware of its legal effect, and has entered into it freely
based on his own judgment.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
"COMPANY"
Advanced Medical Optics, Inc., a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Title:
-----------------------------------
Date: January 18, 2002
"ALLERGAN"
Allergan, Inc., a Delaware corporation
By: /s/ Xxxxx X. X. Xxxxx
-----------------------------------------
Title: Chairman, President & CEO
-----------------------------------
Date: January 18, 2002
"EXECUTIVE"
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Xxxxx X. Xxxxx
-----------------------------------------
Signature
Date: January 18, 2002
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