Exhibit 10.36
TRANSITIONAL SERVICES AGREEMENT
BY AND BETWEEN
ALLERGAN, INC.
AND
ADVANCED MEDICAL OPTICS, INC
Dated as of June 24, 2002
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS...............................................1
ARTICLE 2. TRANSITION SERVICE SCHEDULES..............................2
ARTICLE 3. SERVICES..................................................2
3.1 Services Generally.......................................2
3.2 Service Boundaries.......................................3
3.3 Impracticability.........................................3
3.4 Additional Resources.....................................3
ARTICLE 4. TERM......................................................3
ARTICLE 5. COMPENSATION..............................................3
5.1 Charges for Services.....................................3
5.2 Payment Terms............................................4
5.3 Performance Under Ancillary Agreements...................4
5.4 Error Correction; True-Ups; Accounting...................4
5.5 Pricing Adjustments......................................4
ARTICLE 6. GENERAL OBLIGATIONS; STANDARD OF CARE.....................4
6.1 Performance Metrics: Allergan............................4
6.2 Performance Metrics: AMO.................................5
6.3 Disclaimer of Warranties.................................5
6.4 Transitional Nature of Services; Changes.................5
6.5 Responsibility for Errors; Delays........................5
6.6 Good Faith Cooperation; Consents.........................5
6.7 Alternatives.............................................6
ARTICLE 7. TERMINATION...............................................6
7.1 Termination..............................................6
7.2 Survival.................................................6
7.3 User IDs, Passwords......................................6
ARTICLE 8. RELATIONSHIP BETWEEN THE PARTIES..........................7
ARTICLE 9. SUBCONTRACTORS............................................7
ARTICLE 10. INTELLECTUAL PROPERTY....................................7
10.1 Allocation of Rights by Ancillary Agreements..............7
10.2 Existing Ownership Rights Unaffected......................7
10.3 Cross License to Preexisting Works........................7
ARTICLE 11. NO OBLIGATIONS...........................................8
ARTICLE 12. CONFIDENTIALITY..........................................8
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ARTICLE 13. LIMITATION OF LIABILITY..................................8
ARTICLE 14. DISPUTE RESOLUTION.......................................8
ARTICLE 15. MISCELLANEOUS............................................8
15.1 Counterparts..............................................8
15.2 Entire Agreement..........................................8
15.3 Corporate Power...........................................9
15.4 Signatures................................................9
15.5 Governing Law.............................................9
15.6 Assignability.............................................9
15.7 Third Party Beneficiaries.................................9
15.8 Notices...................................................9
15.9 Severability.............................................10
15.10 Force Majeure............................................10
15.11 Headings.................................................11
15.12 Survival of Covenants....................................11
15.13 Waivers of Default.......................................11
15.14 Amendments...............................................11
15.15 Interpretation...........................................11
Annex A Form of Transition Service Schedule to Transitional Services Agreement
List of Transition Service Schedules as of the Distribution Date
Transition Service Schedule # Functional Area
- ----------------------------- --------------------------------------------------------
1A..............................Facilities Sharing Services Allergan to AMO
1B..............................Facilities Sharing Services AMO to Allergan
1C..............................General Administrative Services
2...............................Toxicology and Vivarium Research & Development Services
3...............................Research & Development Support Services
4A..............................Shared Service Centers
4B..............................Treasury - Foreign Currency Option Contracts for the Yen
5...............................Information Systems
6...............................Retail Channel Support & Product Promotion
7...............................World Wide Specifications; World Wide Operations
8...............................Legal
9...............................Allergan EAME Region Research and Development
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TRANSITIONAL SERVICES AGREEMENT
This TRANSITIONAL SERVICES AGREEMENT is dated as of June 24, 2002,
between ALLERGAN, INC., a Delaware corporation ("Allergan"), and ADVANCED
MEDICAL OPTICS, INC., a Delaware corporation ("AMO").
ARTICLE 1.
DEFINITIONS
For the purpose of this Agreement, the following capitalized terms
shall have the following meanings. Other capitalized terms defined elsewhere in
this Agreement shall have the respective meanings assigned to them at the
location of their definition. Capitalized terms used in this Agreement without
definition which are defined in the Contribution and Distribution Agreement
shall have the meaning ascribed thereto in the Contribution and Distribution
Agreement.
"Allergan Group" shall the have the meaning set forth in the
Contribution and Distribution Agreement.
"AMO Group" shall the have the meaning set forth in the Contribution
and Distribution Agreement.
"Ancillary Agreements" shall the have the meaning set forth in the
Contribution and Distribution Agreement.
"Confidential Information" shall have the meaning set forth in the
Contribution and Distribution Agreement.
"Contribution" shall the have the meaning set forth in the
Contribution and Distribution Agreement.
"Contribution and Distribution Agreement" shall mean that certain
Contribution and Distribution Agreement between Allergan and AMO.
"Distribution" shall the have the meaning set forth in the
Contribution and Distribution Agreement.
"Distribution Date" shall have the meaning set forth in the
Contribution and Distribution Agreement.
"Impracticable" shall have the meaning set forth in Section 3.3.
"Person" shall the have the meaning set forth in the Contribution and
Distribution Agreement.
"Prime Rate" means the rate which The Chase Manhattan Bank (or any
successor thereto or other major money center commercial bank agreed to by the
parties hereto) announces from time to time as its prime lending rate in the
United States, as in effect from time to time.
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"Service(s)" shall have the meaning set forth in Section 3.1.
"Service Provider" means Allergan or a member of the Allergan Group
when it is providing a Service to AMO or a member of the AMO Group hereunder in
accordance with a Transition Service Schedule, and AMO or a member of the AMO
Group when it is providing a Service to Allergan or a member of the Allergan
Group hereunder in accordance with a Transition Service Schedule.
"Service Recipient" means AMO or a member of the AMO Group when it is
receiving a Service from Allergan or a member of the Allergan Group hereunder in
accordance with a Transition Service Schedule, and Allergan or a member of the
Allergan Group when it is receiving a Service from AMO or a member of the AMO
Group hereunder in accordance with a Transition Service Schedule.
"Subsidiary" shall have the meaning set forth in the Contribution and
Distribution Agreement.
ARTICLE 2.
TRANSITION SERVICE SCHEDULES
This Agreement will govern individual transitional services as
requested by AMO and provided by Allergan, the details of which are set forth in
the Transition Service Schedules attached to and made a part of this Agreement.
This Agreement will also govern individual transitional services as requested by
Allergan and provided by AMO, the details of which are set forth in the
Transition Service Schedules attached to and made a part of this Agreement. Each
Service shall be covered by this Agreement upon execution of a transition
service schedule in the form attached hereto (each transition service schedule,
a "Transition Service Schedule").
For each Service, the parties shall set forth in a Transition Service
Schedule substantially in the form of Annex A hereto, among other things, (i)
the time period during which the Service will be provided if different from the
term of this Agreement determined pursuant to Article 4 hereof; (ii) a summary
of the Service to be provided; and (iii) the method for determining the charge,
if any, for the Service and any other terms applicable thereto on the Transition
Service Schedule. Obligations regarding each Transition Service Schedule shall
be effective upon the later of execution of this Agreement or of the applicable
Transition Service Schedule. This Agreement and all the Transition Service
Schedules shall be defined as the "Agreement" and incorporated herein wherever
reference to it is made.
ARTICLE 3.
SERVICES
3.1 Services Generally. Except as otherwise provided herein, for the
term determined pursuant to Article 4 hereof, Allergan shall provide or cause to
be provided to AMO (or AMO shall provide, or cause to be provided to Allergan)
the service(s) described in the Transition Service Schedule(s) attached hereto.
The service(s) described on a single Transition Service Schedule shall be
referred to herein as a "Service." Collectively, the services described on all
the Transition Service Schedules shall be referred to herein as "Services."
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3.2 Service Boundaries. Except as otherwise provided in a Transition
Service Schedule for a specific service: (i) a Service Provider shall be
required to provide the Services only to the extent and only at the locations
such Services are being provided by the Service Provider for the Service
Recipient immediately prior to the Distribution Date; and (ii) the services will
be available only for purposes of conducting the business of the Service
Recipient substantially in the manner it was conducted prior to the Distribution
Date.
3.3 Impracticability. A Service Provider shall not be required to
provide any Service to the extent the performance of such Service becomes
"Impracticable" as a result of a cause or causes outside the reasonable control
of the Service Provider including unfeasible technological requirements, or to
the extent the performance of such Services would require the Service Provider
to violate any applicable laws, rules or regulations, would result in the breach
of any software license or other applicable contract
3.4 Additional Resources. Except as provided in a Transition Service
Schedule for a specific service, in providing the Services, a Service Provider
shall not be obligated to: (i) hire any additional employees; (ii) maintain the
employment of any specific employee; (iii) purchase, lease or license any
additional facilities, equipment or software; or (iv) pay any costs related to
the transfer or conversion of the Service Recipient's data to the Service
Recipient or any alternate supplier of Services.
ARTICLE 4.
TERM
The term of this Agreement shall commence on the Distribution Date and
shall remain in effect until one (1) year after the Distribution Date (the
"Expiration Date"), unless earlier terminated under Article 7. The parties shall
be deemed to have extended this Agreement with respect to a specific Service if
the Transition Service Schedule for such Service specifies a completion date
beyond the aforementioned Expiration Date. The parties may agree on an earlier
expiration date respecting a specific Service by specifying such date on the
Transition Service Schedule for that Service. Services shall be provided up to
and including the date set forth in the applicable Transition Service Schedule,
subject to earlier termination as provided herein.
ARTICLE 5.
COMPENSATION
5.1 Charges for Services. The Service Recipient shall pay the Service
Provider the charges, if any, set forth on the Transition Service Schedules for
each of the Services listed therein as adjusted, from time to time, in
accordance with the processes and procedures established under Section 5.4 and
Section 5.5 hereof. Unless specifically indicated otherwise on a Transition
Service Schedule, such fees shall include the direct and indirect costs of
providing the Services and shall be calculated by using the same procedures used
by Allergan prior to the Distribution Date. If there is any inconsistency
between the Transition Service Schedule and this Section 5.1, the terms of the
Transition Service Schedule shall govern. In addition to any fees referenced in
this Transition Service Schedules, the Service Recipient shall pay to the
Service Provider any value added tax or other similar tax associated with the
services,
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if applicable. The parties also intend for charges to be easy to administer and
justify and, therefore, they hereby acknowledge it may be counterproductive to
try to recover every cost, charge or expense, particularly those that are
insignificant or de minimus. The parties shall use good faith efforts to discuss
any situation in which the actual cost for a Service exceeds the charge, if any,
set forth on a Transition Service Schedule for a particular Service; provided,
however, that the incurrence of charges in excess of any such cost on such
Transition Service Schedule shall not justify stopping the provision of, or
payment for, Services under this Agreement.
5.2 Payment Terms. The Service Provider shall bill the Service
Recipient monthly for all charges pursuant to this Agreement. Such bills shall
be accompanied by reasonable documentation or other reasonable explanation
supporting such charges. The Service Recipient shall pay the Service Provider
for all Services provided hereunder within forty-five (45) days after receipt of
an invoice therefor. Late payments shall bear interest at the lesser of the
Prime Rate plus 2% or the maximum rate allowed by law.
5.3 Performance Under Ancillary Agreements. Notwithstanding anything
to the contrary contained herein, a Service Recipient shall not be charged under
this Agreement for any obligations that are specifically required to be
performed under the Contribution and Distribution Agreement or any other
Ancillary Agreement and any such other obligations shall be performed and
charged for (if applicable) in accordance with the terms of the Contribution and
Distribution Agreement or such other Ancillary Agreement.
5.4 Error Correction; True-Ups; Accounting. The parties shall agree to
develop mutually acceptable reasonable processes and procedures for conducting
internal audits and making adjustments to charges as a result of the movement of
employees and functions between parties, the discovery of errors or omissions in
charges, as well as a true-up of amounts owed. In no event shall such processes
and procedures extend beyond two (2) years after completion of a Service.
5.5 Pricing Adjustments. If in order to comply with any non-U.S. legal
requirement, some of the services provided outside the U.S. need to be performed
on a basis other than cost, adjustments shall be made between the parties to
make the pricing for such services consistent with the intention of this
Agreement.
ARTICLE 6.
GENERAL OBLIGATIONS; STANDARD OF CARE
6.1 Performance Metrics: Allergan. Subject to Section 3.2, Section 3.4
and any other terms and conditions of this Agreement, Allergan shall maintain
sufficient resources to perform its obligations hereunder. Specific performance
metrics for Allergan for a specific Service may be set forth in the
corresponding Transition Service Schedule. Where none is set forth, Allergan
shall use reasonable efforts to provide Services in accordance with the
policies, procedures and practices in effect before the Distribution Date and
shall exercise the same care and skill as Allergan exercises in performing
similar services for itself. In addition, to the extent within the possession
and control of Allergan, Allergan shall provide AMO with information and
documentation sufficient for AMO to perform the Services it is obligated to
provide hereunder as
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they were performed before the Distribution Date and shall make available, as
reasonably requested by AMO, sufficient resources and timely decisions,
approvals and acceptances in order that AMO may accomplish its obligations
hereunder in a timely manner.
6.2 Performance Metrics: AMO. Subject to Section 3.2, Section 3.4 and
any other terms and conditions of this Agreement, AMO shall maintain sufficient
resources to perform its obligations hereunder. Specific performance metrics for
AMO for a specific Service may be set forth in the corresponding Transition
Service Schedule. Where none is set forth, AMO shall use reasonable efforts to
provide Services in accordance with Allergan's policies, procedures and
practices in effect before the Distribution Date and shall exercise the same
care and skill as AMO exercises in performing similar services for itself. In
addition, to the extent within the possession and control of AMO, AMO shall
provide Allergan with information and documentation sufficient for Allergan to
perform the Services it is obligated to provide hereunder as they were performed
before the Distribution Date and shall make available, as reasonably requested
by Allergan, sufficient resources and timely decisions, approvals and
acceptances in order that Allergan may accomplish its obligations hereunder in a
timely manner.
6.3 Disclaimer of Warranties. NEITHER ALLERGAN NOR AMO MAKES ANY
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH
RESPECT TO THE SERVICES OR OTHER DELIVERABLES PROVIDED BY IT HEREUNDER.
6.4 Transitional Nature of Services; Changes. The parties acknowledge
the transitional nature of the Services and that a Service Provider may make
changes from time to time in the manner of performing the Services if the
Service Provider is making similar changes in performing similar services for
itself and if the Service Provider furnishes to the Service Recipient sixty (60)
days written notice regarding such changes.
6.5 Responsibility for Errors; Delays. Except in the case of a Service
Provider's gross negligence or willful misconduct, a Service Provider's sole
responsibility to a Service Recipient:
(a) for errors or omissions in Services, shall be to furnish
correct information, payment and/or adjustment in the Services, at no additional
cost or expense to the Service Recipient; provided, the Service Recipient must
promptly advise the Service Provider of any such error or omission of which it
becomes aware after having used reasonable efforts to detect any such errors or
omissions in accordance with the standard of care set forth in Section 6.1; and
(b) for failure to deliver any service because of
Impracticability, shall be to use reasonable efforts, subject to Section 3.3, to
make the Services available and/or to resume performing the Services as promptly
as reasonably practicable.
6.6 Good Faith Cooperation; Consents. The parties will use good faith
efforts to cooperate with each other in all matters relating to the provision
and receipt of Services. Such cooperation shall include exchanging information,
performing true-ups and adjustments, and
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obtaining all third party consents, licenses, sublicenses or approvals necessary
to permit each party to perform its obligations hereunder (including by way of
example, not by way of limitation, rights to use third party software needed for
the performance of Services). The costs of obtaining such third party consents,
licenses, sublicenses or approvals shall be borne by the Service Recipient. The
parties will maintain in accordance with its standard document retention
procedures, documentation supporting the information relevant to cost
calculations contained in the Transition Service Schedules and cooperate with
each other in making such information available as needed in the event of a tax
audit, whether in the United States or any other country.
6.7 Alternatives. If a Service Provider reasonably believes it is
unable to provide any service because of a failure to obtain necessary consents,
licenses, sublicenses or approvals pursuant to Section 6.6 or because of
Impracticability, the parties shall cooperate to determine the best alternative
approach. Until such alternative approach is found or the problem otherwise
resolved to the satisfaction of the parties, the Service Provider shall use
reasonable efforts subject to Section 3.3 and Section 3.4, to continue providing
the Service. To the extent an agreed upon alternative approach requires payment
above and beyond that which is included in the Service Provider's charge for the
service in question, the parties shall share equally in making any such payment
unless they otherwise agree in writing.
ARTICLE 7.
TERMINATION
7.1 Termination. Unless otherwise provided in a particular Service
schedule or unless the actual term of the Services is less than 60 days, a
Service Recipient may terminate this Agreement, either with respect to all or
with respect to any one or more of the Services provided to the Service
Recipient hereunder, for any reason or for no reason, at any time upon sixty
(60) days prior written notice to the Service Provider, unless the specific
Transition Service Schedule requires otherwise. In addition, subject to the
provisions of Article 14 below, either party may terminate this Agreement with
respect to a specific Service if the other party materially breaches a material
provision with regard to that particular Service and does not cure such breach
(or does not take reasonable steps required under the circumstances to cure such
breach going forward) within sixty (60) days after being given notice of the
breach; provided, however, that the non-terminating party may request that the
parties engage in a dispute resolution negotiation as specified in Article 14
below prior to termination for breach.
7.2 Survival. Notwithstanding the foregoing, in the event of any
termination with respect to one or more, but less than all Services, this
Agreement shall continue in full force and effect with respect to any Services
not terminated.
7.3 User IDs, Passwords. The parties shall use good faith efforts at
the termination or expiration of this Agreement or any specific Service hereto
to ensure that all applicable user IDs and passwords are cancelled.
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ARTICLE 8.
RELATIONSHIP BETWEEN THE PARTIES
The relationship between the parties established under this Agreement
is that of independent contractors and neither party is an employee, agent,
partner, or joint venturer of or with the other. Each Service Provider will be
solely responsible for any employment-related taxes, insurance premiums or other
employment benefits respecting its personnel's performance of Services under
this Agreement. Each Service Recipient agrees to grant the Service Provider
personnel access to sites, systems and information (subject to the provisions of
confidentiality in Article 12 below) as necessary for the Service Provider to
perform its obligations hereunder. Each Service Provider agrees to cause its
personnel to agree to obey any and all security regulations and other published
policies of the Service Recipient.
ARTICLE 9.
SUBCONTRACTORS
A Service Provider may engage a "Subcontractor" to perform all or any
portion of the Service Provider's duties under this Agreement, provided that any
such Subcontractor agrees in writing to be bound by confidentiality obligations
at least as protective as the terms of Section 7.08 of the Contribution and
Distribution Agreement regarding confidentiality, and provided further that the
Service Provider remains responsible for the performance of such Subcontractor.
As used in this Agreement, "Subcontractor" will mean any individual,
partnership, corporation, firm, association, unincorporated organization, joint
venture, trust or other entity engaged to perform hereunder.
ARTICLE 10.
INTELLECTUAL PROPERTY
10.1 Allocation of Rights by Ancillary Agreements. This Agreement and
the performance of this Agreement will not affect the ownership of any patent,
trademark or copyright or other intellectual property rights allocated in the
Ancillary Agreements.
10.2 Existing Ownership Rights Unaffected. Neither party will gain, by
virtue of this Agreement, any rights of ownership of copyrights, patents, trade
secrets, trademarks or any other intellectual property rights owned by the
other.
10.3 Cross License to Preexisting Works. Allergan grants AMO a
non-exclusive, worldwide, royalty-free license to use, copy, and make derivative
works of, distribute, display, perform and transmit Allergan's pre-existing
copyrighted works or other intellectual property rights solely to the extent
necessary to perform its obligations under this Agreement. AMO grants Allergan a
non-exclusive, worldwide, royalty-free license to use, copy, and make derivative
works of, distribute, display, perform and transmit AMO's pre-existing
copyrighted works or other intellectual property rights solely to the extent
necessary to perform its obligations under this Agreement.
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ARTICLE 11.
NO OBLIGATIONS
NEITHER PARTY ASSUMES ANY RESPONSIBILITY OR OBLIGATIONS WHATSOEVER,
OTHER THAN THE RESPONSIBILITIES AND OBLIGATIONS EXPRESSLY SET FORTH IN THIS
AGREEMENT (INCLUDING THE EXHIBITS AND SCHEDULES HERETO) OR A SEPARATE WRITTEN
AGREEMENT BETWEEN THE PARTIES.
ARTICLE 12.
CONFIDENTIALITY
The terms of the Confidentiality provision set forth in Section 7.08
of the Contribution and Distribution Agreement shall apply to any and all
Confidential Information disclosed in the course of the parties' interactions
under this Agreement.
ARTICLE 13.
LIMITATION OF LIABILITY
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOSS
OF DATA, LOSS OF USE, COST OF COVER, BUSINESS INTERRUPTION OR OTHER SPECIAL,
INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER
ANY THEORY OF LIABILITY, ARISING FROM THE PERFORMANCE OF, OR RELATING TO, THIS
AGREEMENT.
ARTICLE 14.
DISPUTE RESOLUTION
If a dispute, controversy or claim arises under this Agreement it
shall be settled in accordance with the provisions of Article VIII of the
Contribution and Distribution Agreement.
ARTICLE 15.
MISCELLANEOUS
15.1 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party.
15.2 Entire Agreement. This Agreement, the Contribution and
Distribution Agreement, the other Ancillary Agreements, the exhibits, schedules
and appendices hereto and thereto and the specific agreements contemplated
herein or thereby contain the entire agreement between the parties with respect
to the subject matter hereof and supersede all previous agreements,
negotiations, discussions, writings, understandings, commitments and
conversations with respect to such subject matter. No agreements or
understandings exist between the parties other than those set forth or referred
to herein or therein.
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15.3 Corporate Power. Allergan represents on behalf of itself and each
other member of the Allergan Group, and AMO represents on behalf of itself and
each other member of the AMO Group, as follows:
(a) each such Person has the requisite corporate or other power
and authority and has taken all corporate or other action necessary in order to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby; and
(b) this Agreement has been duly executed and delivered by it and
constitutes a valid and binding agreement of it enforceable in accordance with
the terms thereof.
15.4 Signatures. Each party hereto acknowledges that it and each other
party hereto is executing certain of the Transition Services Schedules by
facsimile, stamp or mechanical signature. Each party hereto expressly adopts and
confirms each such facsimile, stamp or mechanical signature made in its
respective name as if it were a manual signature, agrees that it will not assert
that any such signature is not adequate to bind such party to the same extent as
if it were signed manually and agrees that at the reasonable request of any
other party hereto at any time it will as promptly as reasonably practicable
cause each such Transition Services Schedule to be manually executed (any such
execution to be as of the date of the initial date thereof).
15.5 Governing Law. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of California
irrespective of the choice of laws principles of the State of California, as to
all matters, including matters of validity, construction, effect,
enforceability, performance and remedies.
15.6 Assignability. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and thereto, respectively, and their
respective successors and assigns; provided, however, that no party hereto or
thereto may assign its respective rights or delegate its respective obligations
under this Agreement without the express prior written consent of the other
parties hereto or thereto.
15.7 Third Party Beneficiaries. The provisions of this Agreement are
solely for the benefit of the parties hereto and are not intended to confer upon
any Person, except the parties hereto, any rights or remedies hereunder. There
are no third party beneficiaries of this Agreement, and this Agreement shall not
provide any third Person with any remedy, claim, liability, reimbursement, claim
of action or other right in excess of those existing without reference to this
Agreement.
15.8 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed duly given (a) on the date of delivery if
delivered personally, (b) on the first business day following the date of
dispatch if delivered by a nationally recognized next-day courier service, (c)
on the fifth business day following the date of mailing if delivered by
registered or certified mail, return receipt requested, postage prepaid or (d)
if sent by facsimile transmission, when transmitted and receipt is confirmed by
telephone. All notices hereunder shall be delivered as follows:
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If to Allergan, to:
2525 Dupont Drive
Irvine, CA 92612
Fax: 714-246-6987
Attn: General Counsel
If to AMO to:
Prior to September 1, 2002:
Advanced Medical Optics
2525 Dupont Drive
Irvine, CA 92612
Fax: 714-246-6987
Attn: General Counsel
After September 1, 2002:
1700 St. Andrew Place
P.O. Box 25162
Santa Ana, CA 92799-5162
Fax: To be provided
Attn: General Counsel
Any party may, by notice to the other party given in the form specified in this
Section 15.8, change the address to which such notices are to be given.
15.9 Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof or thereof, or the application of such provision to Persons or
circumstances or in jurisdictions other than those as to which it has been held
invalid or unenforceable, shall remain in full force and effect and shall in no
way be affected, impaired or invalidated thereby, so long as the economic or
legal substance of the transactions contemplated hereby or thereby, as the case
may be, is not affected in any manner adverse to any party. Upon such
determination, the parties shall negotiate in good faith in an effort to agree
upon such a suitable and equitable provision to effect the original intent of
the parties.
15.10 Force Majeure. No party shall be deemed in default of this
Agreement to the extent that any delay or failure in the performance of its
obligations under this Agreement results from any cause beyond its reasonable
control and without its fault or negligence, such as acts of God, acts of civil
or military authority, acts of terrorism, embargoes, epidemics, war, riots,
insurrections, fires, explosions, earthquakes, floods, unusually severe weather
conditions, labor problems or unavailability of parts, or, in the case of
computer systems, any failure in electrical or air conditioning equipment. In
the event of any such excused delay, the time for performance shall be extended
for a period equal to the time lost by reason of the delay.
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15.11 Headings. The article, section and paragraph headings contained
in this Agreement and in the Ancillary Agreements are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement or any Ancillary Agreement.
15.12 Survival of Covenants. Except as expressly set forth in any
Ancillary Agreement, the covenants, representations and warranties contained in
this Agreement, and liability for the breach of any obligations contained herein
or therein, shall survive the Distribution Date and shall remain in full force
and effect.
15.13 Waivers of Default. Waiver by any party of any default by the
other party of any provision of this Agreement shall not be deemed a waiver by
the waiving party of any subsequent or other default, nor shall it prejudice the
rights of the other party.
15.14 Amendments. No provisions of this Agreement shall be deemed
waived, amended, supplemented or modified by any party, unless such waiver,
amendment, supplement or modification is in writing and signed by the authorized
representative of the party against whom it is sought to enforce such waiver,
amendment, supplement or modification.
15.15 Interpretation. Words in the singular shall be held to include
the plural and vice versa and words of one gender shall be held to include the
other genders as the context requires. The terms "hereof," "herein," and
"herewith" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole (including all of the Transition
Services Schedules and appendices hereto) and not to any particular provision of
this Agreement. The word "including" and words of similar import when used in
this Agreement shall mean "including, without limitation," unless the context
otherwise requires or unless otherwise specified. The word "or" shall not be
exclusive.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed in duplicate originals by its duly authorized representatives.
ALLERGAN, INC. ADVANCED MEDICAL OPTICS, INC.
By: /s/ David E. I. Pyott By: /s/ James V. Mazzo
-------------------------------- ---------------------------------
Name: David E. I. Pyott Name: James V. Mazzo
Its: Chairman of the Board, President Its: President and Chief Executive
and Chief Executive Officer Officer
Date: June 24, 2002 Date: June 24, 2002
-------------------------------- ---------------------------------
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