exv10w2



 





	 	 	 
	 

	 	EXHIBIT 10.2






CHANGE IN CONTROL AGREEMENT




     This
Agreement (“Agreement”) dated as of ___,
___,  is entered into by and
between «Emply_NameFirst» «
Employee_Last_Name»
(“Employee”), and Allergan, Inc., a Delaware corporation (the “Company”).



RECITALS




     The Company believes that because of its position in the industry, financial resources and
historical operating results there is a possibility that the Company may become the subject of a
Change in Control (as defined below), either now or at some time in the future.



     The Company believes that it is in the best interest of the Company and its stockholders to
foster Employee’s objectivity in making decisions with respect to any pending or threatened Change
in Control of the Company and to assure that the Company will have the continued dedication and
availability of Employee as an employee of the Company or one of its affiliates, notwithstanding
the possibility, threat or occurrence of a Change in Control. The Company believes that these
goals can be accomplished by alleviating certain of the risks and uncertainties with regard to
Employee’s financial and professional security that would be created by a pending or threatened
Change in Control and that inevitably would distract Employee and could impair his or her ability
to objectively perform his or her duties for and on behalf of the Company. Accordingly, the
Company believes that it is appropriate and in the best interest of the Company and its
stockholders to provide to Employee compensation arrangements upon a Change in Control that lessen
Employee’s financial risks and uncertainties and that are competitive with those of other
corporations.



     With these and other considerations in mind, the Board of Directors of the Company, acting
through its Organization and Compensation Committee, has authorized the Company to enter into this
Agreement with Employee to provide the protections set forth herein for Employee’s financial
security following a Change in Control.



     NOW, THEREFORE, in consideration of the foregoing, it is hereby agreed as follows:



     1. Term of Agreement. This Agreement shall be effective for the period commencing
on the date first written above and ending on the second anniversary of such date. The Company
may, in its sole discretion and for any reason, provide written notice of termination (effective as
of the then applicable expiration date) to Employee no later than 60 days before the expiration
date of this Agreement. If written notice is not so provided, this Agreement shall be
automatically extended for an additional period of 12 months past the expiration date. This
Agreement shall continue to be automatically extended for an additional 12 months at the end of
such 12-month period and each succeeding 12-month period unless notice is given in the manner
described in this Section. No termination of this Agreement shall affect Employee’s rights
hereunder with respect to a Change in Control which has occurred prior to such termination.



 









 





     2. Purpose of Agreement. The purpose of this Agreement is to provide that, in the
event of a “Change in Control,” Employee may become entitled to receive certain additional
benefits, as described herein, in the event of his or her termination.



     3. Change in Control. As used in this Agreement, the phrase “Change in Control”
shall mean the following and shall be deemed to occur if any of the following events occur:




          (a) Any “person,” as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) (a “Person”), is or becomes the
“beneficial owner,” as defined in Rule 13d-3 under the Exchange Act (a “Beneficial Owner”),
directly or indirectly, of securities of the Company representing (i) 20% or more of the
combined voting power of the Company’s then outstanding voting securities, which acquisition
is not approved in advance of the acquisition or within 30 days after the acquisition by a
majority of the Incumbent Board (as hereinafter defined) or (ii) 33% or more of the combined
voting power of the Company’s then outstanding voting securities, without regard to whether
such acquisition is approved by the Incumbent Board;




          (b) Individuals who, as of the date hereof, constitute the Board of Directors of the
Company (the “Incumbent Board”), cease for any reason to constitute at least a majority of
the Board of Directors, provided that any person becoming a director subsequent to the date
hereof whose election, or nomination for election by the Company’s stockholders, is approved
by a vote of at least a majority of the directors then comprising the Incumbent Board (other
than an election or nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to the election of the
directors of the Company, as such terms are used Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act) shall, for the purposes of this Agreement, be considered as though
such person were a member of the Incumbent Board of the Company;




          (c) The consummation of a merger, consolidation or reorganization involving the
Company, other than one which satisfies both of the following conditions:




                    (1) a merger, consolidation or reorganization which would result in the
voting securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of another entity) at least 55% of the combined voting power of the
voting securities of the Company or such other entity resulting from the merger,
consolidation or reorganization (the “Surviving Corporation”) outstanding
immediately after such merger, consolidation or reorganization and being held in
substantially the same proportion as the ownership in the Company’s voting
securities immediately before such merger, consolidation or reorganization, and




                    (2) a merger, consolidation or reorganization in which no Person is or
becomes the Beneficial Owner directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the Company’s then
outstanding voting securities; or



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          (d) The stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or other disposition by the Company of all or
substantially all of the Company’s assets.



                    Notwithstanding the preceding provisions of this Section, a Change in Control shall not be
deemed to have occurred if the Person described in the preceding provisions of this Section is (1)
an underwriter or underwriting syndicate that has acquired the ownership of any of the Company’s
then outstanding voting securities solely in connection with a public offering of the Company’s
securities, (2) the Company or any subsidiary of the Company or (3) an employee stock ownership
plan or other employee benefit plan maintained by the Company (or any of its affiliated companies)
that is qualified under the provisions of the Internal Revenue Code of 1986, as amended. In
addition, notwithstanding the preceding provisions of this Section, a Change in Control shall not
be deemed to have occurred if the Person described in the preceding provisions of this Section
becomes a Beneficial Owner of more than the permitted amount of outstanding securities as a result
of the acquisition of voting securities by the Company which, by reducing the number of voting
securities outstanding, increases the proportional number of shares beneficially owned by such
Person, provided, that if a Change in Control would occur but for the operation of this sentence
and such Person becomes the Beneficial Owner of any additional voting securities (other than
through the exercise of options granted under any stock option plan of the Company or through a
stock dividend or stock split), then a Change in Control shall occur.



     4. Effect of a Change in Control. In the event of a Change in Control, Sections 6
through 10 of this Agreement shall become applicable to Employee. These Sections shall continue to
remain applicable until the second anniversary of the date upon which the Change in Control occurs.
At that point, so long as the employment of Employee has not been terminated on account of a
Qualifying Termination, as defined in Section 5, this Agreement shall terminate and be of no
further force. If Employee’s employment with the Company and its affiliated companies is
terminated on account of a Qualifying Termination on or before such date, this Agreement shall
remain in effect until Employee receives the various benefits to which he or she has become
entitled under the terms of this Agreement.



     5. Qualifying Termination. If, subsequent to a Change in Control Employee’s
employment with the Company and its affiliated companies is terminated, such termination
shall be considered a Qualifying Termination unless:




          (a) Employee voluntarily terminates his or her employment with the Company and its
affiliated companies. Employee, however, shall not be considered to have voluntarily
terminated his or her employment with the Company and its affiliated companies if, following
the Change in Control, Employee’s overall compensation is reduced or adversely modified in
any material respect or Employee’s duties are materially changed, and subsequent to such
reduction, modification or change, Employee elects to terminate his or her employment with
the Company and its affiliated companies. For such purposes, Employee’s duties shall be
considered to have been “materially changed” if, without Employee’s express written consent,
there is any substantial diminution or adverse modification in Employee’s overall position,
responsibilities or reporting relationship, or if, without Employee’s express written
consent, Employee’s job



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location is transferred to a site more than 50 miles away from his or her place of employment
prior to the Change in Control.




          (b) The termination is on account of Employee’s death or Disability. For such
purposes, “Disability” shall mean a physical or mental incapacity as a result of which
Employee becomes unable to continue the performance of his or her responsibilities for the
Company and its affiliated companies and which, at least 26 weeks after its commencement, is
determined to be total and permanent by a physician agreed to by the Company and Employee, or
in the event of Employee’s inability to designate a physician, Employee’s legal
representative. In the absence of agreement between the Company and Employee, each party
shall nominate a qualified physician and the two physicians so nominated shall select a third
physician who shall make the determination as to Disability.




          (c) Employee is involuntarily terminated for “cause.” For this purpose, “cause” shall
be limited to only three types of events:




                    (1) the willful refusal of Employee to comply with a lawful, written
instruction of the Board so long as the instruction is consistent with the scope and
responsibilities of Employee’s position prior to the Change in Control;




                    (2) dishonesty by Employee which results in a material financial loss to the
Company (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




                    (3) Employee’s conviction of any felony involving an act of moral turpitude.



          In addition, notwithstanding anything contained in this Agreement to the contrary, if
Employee’s employment is terminated prior to a Change in Control and it is determined that such
termination (i) was at the request of a third party who has indicated an intention or taken steps
reasonably calculated to effect a Change in Control and who subsequently effectuates a Change in
Control (a “Third Party”) or (ii) otherwise occurred in connection with, or in anticipation of, a
Change in Control which actually occurs, then, for all purposes of this Agreement, the date of a
Change in Control with respect to Employee shall mean the date immediately prior to the date of
such termination of Employee’s employment.



     6. Severance Payment. If Employee’s employment is terminated as a result of a
Qualifying Termination, the Company shall pay Employee within 30 days after the Qualifying
Termination, or such other period as may be required by the applicable tax laws, a cash lump sum
equal to «No» [«Nu»] times Employee’s “Compensation” (the “Severance Payment”).




          (a) For purposes of this Agreement, and subject to Sections 6 (c ), (d) and (e),
below, Employee’s “Compensation” shall equal the sum of (i) Employee’s highest annual salary
rate within the five-year period ending on the date of Employee’s Qualifying Termination plus
(ii) a “Management Bonus Increment.” The Management Bonus Increment shall equal the average
of the two highest of



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the last five bonuses paid to Employee under the Management Bonus Plan or any successor
thereto.




          (b) In lieu of a cash lump sum, Employee may elect to receive the Severance Payment
provided by this Section in equal annual installments over two (2) or three (3) years at
Employee’s election in accordance with the applicable tax laws. Such installments shall be
paid to Employee on each anniversary of the date of Employee’s Qualifying Termination,
beginning with the first such anniversary and continuing on each such anniversary thereafter
until fully paid. Such election to receive the Severance Payment in installments, and the
number of installments to receive, may be made and/or revoked by Employee at any time prior
to the occurrence of a Change in Control by written notice to the Secretary of the Company.
Upon the occurrence of a Change in Control, any such election to receive the Severance
Payment in installments that has been made and not revoked prior to the Change in Control
shall be irrevocable and binding on both the Company and Employee. In the event that at the
time of a Change in Control there is not in effect an election by Employee to receive the
Severance Payment in installments, such Severance Payment shall be paid to Employee in a
single cash lump sum as provided above.




          (c) If Employee has not participated in the Management Bonus Plan (including any
successor thereto) for at least two full plan years, then the missing bonus component(s) will
be computed, for purposes of calculating the Management Bonus Increment under this Agreement,
by reference to the guideline percentage for officers at Employee’s grade level for the most
recently completed bonus period, assuming a 100% target bonus for both corporate and
individual objectives.




          (d) If Employee’s normal severance payment under the Company’s applicable severance
pay policies for a reduction in force would be greater than the Compensation described in
Section 6(a), above, then Employee’s “Compensation” for purposes of Section 6(a) shall be
such greater amount.




          (e) The Severance Payment hereunder is in lieu of any severance payment that Employee
might otherwise be entitled to from the Company under the Company’s applicable severance pay
policies.



     7. Incentive Compensation Grants. Employee may have received stock option grants,
grants of restricted stock or other incentive compensation awards under the Allergan, Inc. 1989
Incentive Compensation Plan or other incentive compensation plans of the Company (collectively the
“Incentive Plans”). In the event of a Qualifying Termination, the Company agrees that any and all
such stock options, restricted stock and other incentive compensation awards that are outstanding
at the time of such termination and that have not previously become exercisable, payable or free
from restrictions, as the case may be, shall immediately become exercisable, payable or free from
restrictions (other than restrictions required by applicable law or any national securities
exchange upon which any securities of the Company are then listed), as the case may be, in their
entirety, and that the exercise period of any stock option or other incentive award granted
pursuant to any of the Incentive Plans shall continue for the length of the exercise period
specified in the grant of the award determined without regard to Employee’s termination of
employment.



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     8. Retirement Plan. In addition to any retirement benefits that might otherwise be
due Employee under the Allergan, Inc. Savings and Investment Plan or any successor qualified
defined contribution plan(s) maintained by the Company (the “SIP”) or under the Allergan, Inc.
Executive Deferred Compensation Plan or any successor supplemental employee retirement plan(s)
maintained by the Company (the “EDCP”), Employee shall receive additional payments from the Company
calculated as set forth in this Section if Employee is terminated on account of a Qualifying
Termination.




          (a) For another «No» [«Nu»] year(s) subsequent to the date of the Qualifying Termination, the
Company shall pay Employee an amount equal to the Employer’s “Retirement Contributions” (not
including matching contributions) to the SIP and the “Retirement Contribution Restoration
Credits” to the EDCP that would have been received if Employee had continued working. For
the purpose of the preceding sentence, Employee shall be deemed to have received
“Compensation” under the SIP and the EDCP for the period subsequent to the Qualifying
Termination at an annual rate equal to his or her Compensation, as calculated under Section
6(a) of this Agreement. The payment(s) shall be paid by the Company at the time that the
retirement contributions would have been credited by the Company under the SIP and the EDCP,
or such other time as may be required by the applicable tax laws.




          (b) If Employee is not a participant in the SIP and/or the EDCP because he or she is an
employee of an affiliate that does not participate in the SIP and/or the EDCP, Employee will
be provided with the benefits contemplated by the provisions of this Section 8 as part of the
retirement plan provided by the affiliate of the Company in which Employee is employed.



     9. Additional Benefits. In the event of a Qualifying Termination, Employee shall be
entitled to continue to participate in all of the employee benefit programs available to Employee
before the Qualifying Termination, including but not limited to, group medical insurance, group
dental insurance, group-term life insurance, disability insurance, flat miscellaneous allowance,
and tax and financial planning. In addition, Employee shall receive Executive Outplacement
benefits of a type and duration generally provided to executives at Employee’s level. These
programs shall be continued at no cost to Employee, except to the extent that tax rules require the
inclusion of the value of such benefits in Employee’s income. The programs shall be continued in
the same way and at the same level as immediately prior to the Qualifying Termination. If Employee
is employed by an affiliate of the Company that does not provide the additional benefits
enumerated, Employee shall be entitled to continue to participate in the employee benefit programs
in which Employee had been participating prior to the Qualifying Termination. The programs shall
continue for «No» [«Nu»] year(s).



     10. Indemnification for Excise Tax. In the event that Employee becomes entitled to
receive a Severance Payment in accordance with the provisions of Section 6 above, and such
Severance Payment or any other benefits or payments (including transfers of Property) that Employee
receives, or is to receive, pursuant to this Agreement or any other agreement, plan or arrangement
with the Company in connection with a Change in Control of the Company (“Other Benefits”) shall be
subject to the tax imposed pursuant to Section 4999 of the Internal Revenue Code of 1986, as
amended (the “Code”) (or any



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successor thereto) or any comparable provision of state law (an “Excise Tax”), the following rules
shall apply:




          (a) The Company shall pay to Employee, within 30 days after Employee’s Qualifying
Termination, or such other period as may be required by the applicable tax laws, an
additional amount (the “Gross-Up Payment”) such that the net amount retained by Employee,
after deduction of any Excise Tax with respect to the Severance Payments 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 Employee if such
Excise Tax were not applicable, as determined by the accounting firm (the “Auditors”) serving
as the Company’s independent registered public accounting firm immediately prior to the
Change in Control. It is intended that Employee shall not suffer any loss or expense
resulting from the assessment of any Excise Tax or the Company’s reimbursement of Employee
for payment of any such Excise Tax.




          (b) For purposes of determining whether any of the Severance Payments 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 Employee in connection with a Change in
Control of the Company or Employee’s termination of employment (whether pursuant to the terms
of this Agreement or any other plan, arrangement or agreement with the Company, any person
whose actions result in a Change in Control or any person affiliated with the Company 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 Employee 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 Severance Payments 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 Severance Payments 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 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, Employee shall be
deemed to pay federal income taxes at the highest marginal rate of federal 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 Employee’s
residence on the date of Employee’s Qualifying Termination, net of the maximum reduction in
federal income taxes which could be obtained from deduction of such state and local taxes.



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          (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 Employee’s Qualifying Termination,
Employee shall repay to the Company, 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), the Company 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.



     11. Rights and Obligations Prior to a Change in Control. Except as otherwise
provided in the last paragraph of Section 5, prior to a Change in Control, the rights and
obligations of Employee with respect to his or her employment by the Company shall be determined in
accordance with the policies and procedures adopted from time to time by the Company and the
provisions of any written employment contract in effect between the Company and Employee from time
to time. Except as otherwise provided in the last paragraph of Section 5, this Agreement deals
only with certain rights and obligations of Employee subsequent to a Change in Control, and the
existence of this Agreement shall not be treated as raising any inference with respect to what
rights and obligations exist prior to a Change in Control. Unless otherwise expressly set forth in
a separate employment agreement between Employee and the Company, the employment of Employee is
at-will, and Employee or the Company may terminate Employee’s employment with the Company at any
time and for any reason, with or without cause, provided that if such termination occurs within two
years after a Change in Control and constitutes a Qualifying Termination (as defined in Section 5
above) the provisions of this Agreement shall govern the payment of the Severance Payment and
certain other benefits as provided herein.



     12. Non-Exclusivity of Rights. Subject to Section 6(d) above, nothing in this
Agreement shall prevent or limit Employee’s continuing or future participation in any benefit,
bonus, incentive or other plan or program provided by the Company or any of its affiliated
companies and for which Employee may qualify, nor shall anything herein limit or otherwise affect
(except as provided in Section 7 above) such rights as Employee may have under any stock option or
other agreements with the Company or any of its affiliated companies. Except as otherwise provided
in Section 6(d) above, amounts which are vested benefits or which Employee is otherwise entitled to
receive under any plan or program of the Company or any of its affiliated companies at or
subsequent to the date of any Qualified Termination shall be payable in accordance with such plan
or program.



     13. Confidentiality Covenant. Employee hereby agrees that Employee 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). Employee agrees that, upon termination of Employee’s employment with the Company, all
Confidential Information in Employee’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



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retained by Employee or furnished to any third party, in any form except as provided herein;
provided, however, that Employee 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 Employee, (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 Employee by a third party. As used in this Agreement, the term
“Confidential Information” means: information disclosed to Employee or known by Employee as a
consequence of or through Employee’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.



     14. Non-Solicitation Covenant. Employee hereby agrees that during Employee’s
employment by the Company and for the period commencing on the date of termination of Employee’s
employment with the Company and ending on the first anniversary thereof, Employee shall not, either
on Employee’s own account or jointly with or as a manager, agent, officer, employee, consultant,
partner, joint venturer, owner or shareholder 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 14.



     15. Full Settlement. The Company’s obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder shall not be affected by any
set-off, counter-claim, recoupment, defense or other claim, right or action which the Company may
have against Employee or others. In no event shall Employee be obligated to seek other employment
or to take any other action by way of mitigation of the amounts payable to Employee under any of
the provisions of this Agreement. The Company agrees to pay, to the full extent permitted by law,
all legal fees and expenses which Employee may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company or others of the validity or enforceability of,
or liability under, any provision of this Agreement or any guarantee of performance thereof
(including as a result of any contest by Employee about the amount of any payment pursuant to
Section 10 of this Agreement), plus in each case interest at the Applicable Rate (as defined in
Section 10 above), unless the referee or the court, as the case may be, determines that the
Employee’s material claims in such contest were frivolous or were asserted in bad faith.



     16. Successors.




          (a) This Agreement is personal to Employee, and without the prior written consent of
the Company shall not be assignable by Employee other than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by Employee’s
legal representatives.



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          (b) The rights and obligations of the Company under this Agreement shall inure to the
benefit of and shall be binding upon the successors and assigns of the Company.



     17. Governing Law. This Agreement is made and entered into in the State of
California, and the laws of California shall govern its validity and interpretation in the
performance by the parties hereto of their respective duties and obligations hereunder.



     18. Entire Agreement. This Agreement constitutes the entire agreement between the
parties respecting the benefits due Employee in the event of a Change in Control followed by a
Qualifying Termination, and there are no representations, warranties or commitments, other than
those set forth herein, which relate to such benefits. This Agreement supercedes any and all prior
agreements between the parties respecting the benefits due Employee in the event of a Change in
Control followed by a Qualifying Termination. This Agreement may be amended or modified only by an
instrument in writing executed by all of the parties hereto.



     19. 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
by either of the parties by written notice served on the other party in the manner prescribed
in Section 20 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



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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 19 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.



     20. 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:
	 	Allergan, Inc.

2525 Dupont Drive

Irvine, California 92612

Attn: General Counsel
	 
	 	 	 	 
	 

	 	(b) If to Employee:
	 	«Home_Address»

«Home_Address»

«City», «State» «Zipcode»






     21. Captions. The captions of this Agreement are inserted for convenience and do not
constitute a part hereof.



     22. 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



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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.



     23. 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 in the same
Agreement.



     IN WITNESS HEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered as of the day and year first written above.



	 	 	 	 	 	 	 
	 

	 	 	 	ALLERGAN, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
 David
E.I. Pyott

Chairman of the Board and

Chief Executive Officer

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 
 
«Employee_Last_Name»

Employee
	 	 






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