EXHIBIT
10.1


CONFIDENTIAL
SETTLEMENT AGREEMENT


This Settlement Agreement (“Agreement”) is entered
into between Advanced Medical Optics, Inc., and all of its Affiliates and
successors-in-interest, on the one hand (“AMO”) and Alcon, Inc., Alcon
Laboratories, Inc., Alcon Manufacturing, Ltd., and all of their Affiliates and
successors in-interest, on the other hand (“Alcon”) (collectively with AMO, “the
Parties”) as of June 30, 2006 (“Effective Date”).


WHEREAS, certain of the Parties are presently engaged in litigation
involving patent infringement and other claims in Advanced Medical Optics, Inc. v. Alcon Laboratories, Inc., et al.,
No. 03-1095-KAJ (D. Del.), on appeal as Advanced
Medical Optics, Inc. v. Alcon Laboratories, Inc., et al., Nos. 06-1212
and 06-1248 (Fed. Cir.) (“the Delaware Litigation”); Alcon Laboratories, Inc. v. Advanced Medical Optics, Inc.,
No. 4-04-CV-080Y (D.C. Tex.) (“the Ft. Worth I Litigation”); Alcon Laboratories, Inc. v. Advanced Medical Optics,
Inc., No. 4-05CV-496-A (N.D. Tex.) (“the Ft. Worth II Litigation”);
and Alcon Laboratories, Inc. v. Advanced
Medical Optics, Inc., No. 3-05-CV-1823-L (N.D. Tex.) (“the Dallas
Litigation”) (collectively “the Litigation”); and


WHEREAS, a non-final judgment in favor of AMO was entered in the Delaware
Litigation, but a motion for new trial remains pending and the appeals from
said judgment are presently deactivated; and


WHEREAS, the other Litigation actions are still involved in pre-trial
proceedings; and


CONFIDENTIAL SETTLEMENT AGREEMENT


ALCON MFG. LTD. /ALCON LAB., INC. & ADVANCED
MEDICAL OPTICS, INC.



 1
 






 



WHEREAS, recognizing the expense, time, and risk associated with
continued litigation, the Parties have agreed to settle the Litigation, without
any party admitting liability to any other party, on the terms and conditions
set forth in this Agreement; and


WHEREAS, the Parties intend to resolve all patent infringement or other
lawsuits between them that have been or could have been brought, based upon
their phacoemulsification products as made, used and sold on or before the
Effective Date of this Agreement;


NOW, THEREFORE, in consideration of the recitals stated above, and the agreements
and promises set forth below and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:


I.              Definitions


1.0.         The
following capitalized terms used in this Agreement shall have the meanings set
forth below:


1.1.         “Alcon
Products” shall mean any phacoemulsification surgical
equipment as made, used, sold, offered for sale, leased, licensed, imported, or
otherwise disposed of by or on behalf of Alcon or any of its predecessors in
interest, and commercially available to end users on or before the Effective
Date (including units of such equipment actually made, used, sold, offered for
sale, leased, licensed, imported or otherwise disposed of after the Effective
Date), whether under a trademark or service mark owned or licensed by Alcon or
otherwise, including without limitation: phacoemulsification or multifunctional
consoles and carts; IV poles, pole extenders and hangers; hand pieces;
accessories and consumables (including without limitation cassettes, tubing
sets, hand piece tips, and infusion sleeves, but not including intraocular
lenses,



 2
 






 



irrigation fluids or viscoelastic materials).  Alcon Products specifically include the Universal,
Universal II, Series 10,000, Legacy, Legacy Advantec, Legacy Everest, and
Infiniti phacoemulsification systems as commercially available to end users on
or before the Effective Date.


1.2.         “AMO Products” shall
mean any phacoemulsification surgical equipment as made, used, sold, offered
for sale, leased, licensed, imported, or otherwise disposed of by or on behalf of
AMO or any of its predecessors in interest, and commercially available to end
users on or before the Effective Date (including units of such equipment
actually made, used, sold, offered for sale, leased, licensed, imported, or
otherwise disposed of after the Effective Date), whether under a trademark or
service mark owned or licensed by AMO or otherwise, including without
limitation: phacoemulsification or multifunctional consoles and carts; IV
poles, pole extenders and hangers; hand pieces; accessories and consumables
(including without limitation cassettes, tubing sets, hand piece tips, and
infusion sleeves, but not including intraocular lenses, irrigation fluids or
viscoelastic materials).  AMO Products
specifically include the Prestige, Sovereign, Sovereign Compact, Diplomate,
Diplomax, and Diplomax II phacoemulsification systems as commercially available
to end users on or before the Effective Date.


1.3.         “Alcon
Patents” shall mean (i) all issued United States patents owned
by Alcon as of the Effective Date or for which Alcon has the right, without the
consent of third parties, to grant sublicenses as of the Effective Date, (ii)
all United States patent applications owned by Alcon as of the Effective Date
or for which Alcon has the right, without the consent of third parties, to
grant sublicenses as of the Effective Date, and all United States patents that
may issue therefrom after the Effective Date, (iii) all divisionals,
continuations, continuations-in-part,



 3
 






 



reissues or reexaminations of any of the foregoing
United States patents or United States patent applications, even if filed,
requested and/or issued after the Effective Date, and (iv) any foreign
counterpart of any of the foregoing United States patents or United States
patent applications, including divisionals, continuations,
continuations-in-part, reissues or reexaminations thereof.


1.4.         “AMO
Patents” shall mean (i) all issued United States patents
owned by AMO as of the Effective Date or for which AMO has the right, without
the consent of third parties, to grant sublicenses as of the Effective Date, (ii)
all United States patent applications owned by AMO as of the Effective Date or
for which AMO has the right, without the consent of third parties, to grant
sublicenses as of the Effective Date, and all United States patents that may
issue therefrom after the Effective Date, (iii) all divisionals, continuations,
continuations-in-part, reissues or reexaminations of any of the foregoing
United States patents or United States patent applications, even if filed,
requested and/or issued after the Effective Date, and (iv) any foreign
counterpart of any of the foregoing United States patents or United States
patent applications, including divisionals, continuations,
continuations-in-part, reissues or reexaminations thereof.


1.5          “Affiliate”
shall mean, when used in conjunction with the name of a party to this
Agreement, all entities, now or hereafter, controlling, controlled by, or under
common control with, the party and for these purposes, “control” (and its
correlative meaning, “controlling,” “controlled by,” and “under common control
with”) means possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of the entity in question
(whether through majority ownership of voting securities or other ownership
interests or by agreement, including without limitation partnership or
management agreements).



 4
 






 



1.6          “Commercially
available to end users”, even though not capitalized, shall
mean that a consumer of phacoemulsification surgical equipment could have ordered and
obtained delivery of a product and/or the Feature in question, subject
only to normal inventory and installation limitations.  Products
and/or Features that are only available to end
users in proto-types, for clinical testing or evaluation, or for
product development purposes and products and/or Features that are available
only under confidentiality agreements or pursuant to a consulting relationship
between the consumer and the supplier are not “commercially available
to end users.”


II.            Release and Dismissal of the Litigation


2.1.         Dismissal.
 Within five (5) business days of the execution
of this Agreement by all Parties, the Parties shall file, in the respective
district courts in each of the Ft. Worth I Litigation, the Ft. Worth II
Litigation, and the Dallas Litigation, a mutually agreed upon stipulation of
dismissal of all of Alcon’s claims and all of AMO’s counterclaims, with
prejudice and without costs.  Within ten
(10) days of the entry of an order granting the motion to vacate described in
paragraph 2.2 below, the Parties shall file a mutually agreed upon stipulation
of dismissal with prejudice and without costs in the district court in the
Delaware Litigation and in Appeal Nos. 06-1212 and 06-1248 in the U.S. Court of
Appeals for the Federal Circuit.


2.2.         Vacating
Delaware Judgment.  Within
five (5) business days of AMO’s receipt of the payment specified in paragraph
4.1 below, AMO shall file a mutually agreed upon motion to vacate and declare
moot the judgment and injunction in the Delaware Litigation.  AMO agrees that it shall not thereafter seek
to collect from Alcon at any time any amounts due AMO as a



 5
 






 



result of the judgment entered in the Delaware
Litigation, whether damages, interest, enhanced damages, costs, attorney’s
fees, or otherwise, and shall not seek any further temporary or permanent
injunctive relief as a result of the Delaware Litigation.  In the event that the court in the Delaware
Litigation denies the motion to vacate or, within thirty (30) days of filing
the court fails to decide said motion, the Parties shall file a mutually agreed
upon stipulation of dismissal with prejudice and without costs and a
satisfaction of judgment in the district court in the Delaware Litigation, and
a stipulation of dismissal with prejudice and without costs in Appeal Nos.
06-1212 and 06-1248 in the U.S. Court of Appeals for the Federal Circuit.  AMO further agrees that any claims against
Alcon based on the judgment entered in the Delaware Litigation are forever
released and waived.


2.3.         Release
by Alcon.  In
consideration of the value provided by AMO hereunder, Alcon, on behalf of
itself, its shareholders, officers, directors, employees, predecessors,
successors, and assigns, hereby irrevocably releases AMO and its shareholders,
officers, directors, employees, customers, licensees, distributors, third party
manufacturers and the end users of any AMO Products, from any and all claims,
counterclaims, actions, causes of action (derivative or direct), known or
unknown, accrued or unaccrued, suspected or unsuspected, whether at law, in
equity, or both, and whether for infringement of a patent identified in
paragraph 1.3, above, or otherwise, which have been, could have been, or could
in the future be asserted with respect to any AMO Products made, sold, on sale,
offered for sale, leased, or otherwise distributed or offered for distribution from
the beginning of time up to and including the Effective Date, and from any
claims or rights to compensation, damages, costs, expenses or fees (including
attorneys’ fees) of any kind or description relating thereto, except as specifically



 6
 






 



set forth in this Agreement.  The releases of this paragraph 2.3 also apply
to Allergan, Inc. but only to the extent a claim or cause of action would be
released under this paragraph 2.3 if made against AMO, and such claim or cause
of action arises from the Phacoemulsification Equipment (as defined in
paragraph 3.5.6 below) business of Allergan, Inc. prior to the spin-off of AMO
from Allergan, Inc.


2.4.         Release
by AMO.  Upon receipt
of the payment by Alcon provided herein, and in consideration of this and the
other value provided by Alcon hereunder, AMO, on behalf of itself, its
shareholders, officers, directors, employees, predecessors, successors, and
assigns, hereby irrevocably releases Alcon, its predecessors, and their shareholders,
officers, directors, employees, customers, licensees, distributors, third party
manufacturers and the end users of any Alcon Products, from any and all claims,
counterclaims, actions, causes of action (derivative or direct), known or
unknown, accrued or unaccrued, suspected or unsuspected, whether at law, in
equity, or both, and whether for infringement of a patent identified in
paragraph 1.4, above, or otherwise, which have been, could have been, or could
in the future be asserted with respect to any Alcon Products made, sold, on
sale, offered for sale, leased, or otherwise distributed or offered for
distribution from the beginning of time up to and including the Effective Date,
and from any claims or rights to compensation, damages, costs, expenses or fees
(including attorneys’ fees) of any kind or description relating thereto, except
as specifically set forth in this Agreement.


2.5.         Global
Scope.  The releases
set forth in paragraphs 2.3 and 2.4, above, are global in scope and shall be
applied and enforced beyond the territorial boundaries of the United States to
the Parties’ activities anywhere in the world.



 7
 






 



2.6          Express
Reservation of Rights. 
Notwithstanding any of the other provisions of this Agreement, including
the releases set forth in paragraphs 2.3 and 2.4 above, each party expressly
reserves the right, in the event that such party is accused of patent
infringement in any future litigation, to challenge, on any basis, the
validity, enforceability or claimed infringement of the patent or patents asserted
against such party, including without limitation the Alcon Patents, the AMO
Patents, and any patents the Parties may own in the future.


2.7          Express
Waiver of Laws Limiting General Releases.  The Parties understand the significance of
and, as further consideration for this Agreement, expressly waive any right or
benefit that may be available under Section 1542 of the California Civil Code
or any similar laws.  Section 1542 of the California Civil Code provides:


“A general release does not extend to claims which
the creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially affected his
settlement with the debtor.”


III.           Covenants Not to Sue, Cross-Licenses,
Enforcement and Additional Licenses


3.1.         Alcon’s
Covenants Not to Sue.  Alcon
hereby covenants not to sue AMO under any of the patents asserted by Alcon in
the Ft. Worth I Litigation, the Ft. Worth II Litigation and the Dallas
Litigation at any time after the Effective Date.  Alcon further covenants not to sue AMO’s
customers, licensees, distributors, resellers, or the end users of any AMO
Products under any of the patents asserted by Alcon in the Ft. Worth I
Litigation, the Ft. Worth II Litigation and the Dallas Litigation at any time
after the Effective Date.  Alcon further
covenants not to sue AMO on any claim of patent infringement, breach or
misappropriation of any trade secret, or any



 8
 






 



other intellectual property rights (excluding
copyright and trademark) based upon the manufacture, use, sale, offer for sale,
lease, license, importation, or other disposal of the AMO Products, whether the
intellectual property rights to support such a claim are now owned or hereafter
acquired by Alcon.


3.2.         AMO’s
Covenants Not to Sue.  AMO
hereby covenants not to sue Alcon under any of the patents asserted by AMO in
the Delaware Litigation at any time after the Effective Date.  AMO further covenants not to sue Alcon’s
customers, licensees, distributors, resellers, or the end users of any Alcon
Products under any of the patents asserted by AMO in the Delaware Litigation at
any time after the Effective Date.  AMO
further covenants not to sue Alcon on any claim of patent infringement, breach
or misappropriation of any trade secret, or any other intellectual property
rights (excluding copyright and trademark) based upon the manufacture, use,
sale, offer for sale, lease, license, importation, or other disposal of the
Alcon Products, whether the intellectual property rights to support such a
claim are now owned or hereafter acquired by AMO.


3.3          License
to AMO.  Alcon hereby
grants to AMO a nonexclusive, fully paid up, global license, with no right to
sublicense, under all Alcon Patents, to make, have made, use, sell, offer for
sale and import: 1) any AMO Product, and 2) any Phacoemulsification Equipment
sold by or on behalf of AMO after the Effective Date to the extent that such
equipment includes one or more Existing Features of AMO Products and/or one or more
Additional Features other than Non-Licensed Additional AMO Features.


3.4          License
to Alcon.  AMO grants
to Alcon a nonexclusive, fully paid up, global license, with no right to
sublicense, under all AMO Patents, to make, have made, use, sell, offer



 9
 






 



for sale and import: 1) any Alcon Product, and 2) any
Phacoemulsification Equipment sold by or on behalf of Alcon after the Effective
Date to the extent that such equipment includes one or more Existing Features of
Alcon Products and/or one or more Additional Features other than Non-Licensed
Additional Alcon Features.


3.5          Definitions
Specific to Licensing Provisions.  As used in this Agreement,
the following capitalized terms shall have the meanings set forth below:


3.5.1                   “Feature” means
any function or structural design/configuration; any mechanism; any
informational, operational or performance capability; and/or any software or
firmware.


3.5.2                   “Existing
Feature” means any Feature that is or was commercially available to end
users on or before the Effective Date.


3.5.3                   “Additional
Feature” means any Feature, including a modified Existing Feature, that is
not an Existing Feature.


3.5.4                   “Non-Licensed
Additional AMO Feature” means an Additional Feature on AMO Phacoemulsification
Equipment that can in good faith be asserted to infringe a claim of an issued Alcon
Patent or a claim of any other issued patent owned or exclusively licensed by
Alcon, where such patent claim cannot reasonably be or could not reasonably
have been asserted against any of the Existing Features or any combination of
the Existing Features of the AMO Products.


3.5.5                   “Non-Licensed
Additional Alcon Feature” means an Additional Feature on Alcon Phacoemulsification
Equipment that can in good faith be 



 10
 






 



asserted to infringe a claim of an issued AMO Patent
or a claim of any other issued patent owned or exclusively licensed by AMO,
where such patent claim cannot reasonably be or could not reasonably have been
asserted against any of the Existing Features or any combination of the Existing
Features of the Alcon Products.


3.5.6                   “Phacoemulsification
Equipment” means surgical equipment for use in performing
phacoemulsification surgery including without limitation: phacoemulsification or
multifunctional consoles and carts, IV poles and pole extenders, handpieces,
accessories and consumables including without limitation cassettes, tubing
sets, tips, and sleeves; but not including intraocular lenses, irrigation
fluids or viscoelastic materials.


3.6          Burden of Proof.  In any dispute between the Parties, the party
asserting that its product had an Existing Feature as
defined in paragraph 3.5.2 above shall bear the burden of proving by a
preponderance of the evidence that the Feature qualifies as an Existing
Feature, and the party asserting infringement shall have the burden of proving
by a preponderance of the evidence that a Feature qualifies as a Non-Licensed
Additional Feature as defined in paragraph 3.5.4 or 3.5.5 above.


3.7          No
Patent Assignment.  Nothing
in this Agreement is intended to nor shall it constitute an assignment of any
ownership rights in the Alcon Patents to AMO, or assignment of any ownership
rights in the AMO Patents to Alcon.  Alcon
shall not have any right to sue third parties for infringement of the AMO
Patents, nor shall AMO have any right to sue third parties for infringement of
the Alcon Patents.  The Parties
understand and agree that they are not



 11
 






 



required to record the licenses granted under paragraphs
3.3 or 3.4 in any public or governmental register in the United States or any
foreign country, and shall not do so.


3.8          Enforcement.
 Each party shall make its own
independent judgment whether or not to enforce against any third party any of
its patents licensed under this Agreement in court, by license, or otherwise,
and no party has any obligation to the other party to cooperate in such effort
of another party.  Any request for such
cooperation shall be made to the General Counsel (or other in-house attorney
designated to receive notices under this Agreement) of the party to whom the
request is made.


3.9          Additional
Licenses.  Each party
retains full discretion to grant additional licenses under its own patents to
third parties without consultation with the other party.  Nothing in this Agreement shall preclude a
party from granting such licenses under its own patents.


IV.           Payment


4.1.         Alcon’s
Payment.  Alcon shall
pay AMO one hundred and twenty-one million dollars ($121,000,000.00) in United
States currency within ten (10) business days of the execution of this
Agreement by all Parties.  Payment shall
be made by wire transfer to the following account and in accordance with the
following instructions:


Bank Name:


ABA:


SWIFT:


Account Name:


Acct. No.:


The payment specified in
this paragraph 4.1 shall be in full satisfaction of the rights surrendered by
AMO in vacating the judgment and in junction entered in the Delaware Litigation
and in



 12














 


consideration of the dismissals of the claims and
counterclaims set forth in paragraphs 2.1 and 2.2 above.  No other payment will be made by either party
to the other party at any time hereafter in connection with the Litigation.


4.2          Other Consideration.  Alcon shall grant AMO the rights and
covenants conveyed in this Agreement in consideration for those rights and
covenants AMO conveys to Alcon in this Agreement.  The Parties acknowledge the sufficiency of
the consideration exchanged under this Agreement.


V.            Representations
and Warranties


5.1.         AMO
Representations and Warranties.  AMO represents and warrants to Alcon that (a)
it has all requisite legal right, power and authority to execute, deliver and
perform this Agreement; (b) it owns, or owns the exclusive right to assert, the
AMO Patents applicable to Alcon Products, and that no other party owns any
right to recover for infringement of the AMO Patents applicable to Alcon
Products; (c) all named inventors of any of the AMO Patents applicable to Alcon
Products have retained no rights (including without limitation rights to sue
and rights of reversion) in such patents that would permit them to make a claim
against Alcon; (d) it has not granted and will not grant any licenses or other
rights, under the AMO Patents or otherwise, that would conflict with the
licenses and rights granted to Alcon hereunder or prevent Alcon’s exercise of
these licenses and rights; and (e) from March 21, 2006 to the date of execution
of this Agreement by all Parties, AMO has not added to or modified the AMO
Products to make new functions or performance capabilities commercially
available to end users.  AMO represents
and warrants that there are no liens, conveyances, mortgages, assignments,



 13
 






 



encumbrances, or other agreements that would prevent
or impair the full and complete exercise of the terms of this Agreement.


5.2.         Alcon
Representations and Warranties.  Alcon represents and warrants to AMO that (a)
it has all requisite legal right, power and authority to execute, deliver and perform
this Agreement; (b) it owns, or owns the exclusive right to assert, the Alcon
Patents applicable to AMO Products, and that no other party owns any right to
recover for infringement of the Alcon Patents applicable to AMO Products; (c)
all named inventors of any of the Alcon Patents applicable to AMO Products have
retained no rights (including without limitation rights to sue and rights of
reversion) in such patents that would permit them to make a claim against AMO;
(d) it has not granted and will not grant any licenses or other rights, under
the Alcon Patents or otherwise, that would conflict with the licenses and
rights granted to AMO hereunder or prevent AMO’s exercise of these licenses and
rights; and (e) from March 21, 2006 to the date of execution of this Agreement
by all Parties, Alcon has not added to or modified the Alcon Products to make
new functions or performance capabilities commercially available to end users.  Alcon represents and warrants that there are
no liens, conveyances, mortgages, assignments, encumbrances, or other
agreements that would prevent or impair the full and complete exercise of the
terms of this Agreement.


5.3          Indemnification
for Breach of Representations and Warranties.  In the event of a material breach of any of
the representations and warranties under this Section V, the party harmed by
such breach shall be indemnified and held harmless by the party giving the
representations or warranties from and against all claims, costs, attorneys’
fees and other expenses brought against or incurred by said harmed party as a
consequence of such breach.  If



 14
 






 



any party becomes aware that it is in breach of
paragraph 5.1 (b) or (c) or 5.2 (b) or (c) that is not material to the licenses
and other rights granted under this Agreement (e.g. failure to perfect title in
or an assignment of a patent that is not relevant to any Existing Feature of
the products of the licensed party), the party making the representation or
warranty causing said technical breach shall promptly cure said breach.  A party that becomes aware of such a
non-material breach by the other shall give notice in accordance with paragraph
8.2 and a reasonable opportunity to cure before initiating dispute resolution
under Section VII of this Agreement.  Any
demand for indemnification under this paragraph 5.3 shall be subject to the
provisions of Section VII (Future Dispute Resolution) of this Agreement.


5.4          Assurance
of Cooperation to Implement Agreement.  AMO and Alcon each agree to promptly execute
and deliver at no additional cost to the other such additional releases, agreements,
instruments or other documents as may be required to ensure that neither party
has any past, current or future liability satisfied or released by this
Agreement and as otherwise reasonably necessary to give effect to this
Agreement.


VI.           Term
and Termination


6.1.         Effective
Date.  This Agreement
shall remain in effect until the expiration of the last of the AMO Patents and
Alcon Patents or the expiration of any claims within the scope of paragraphs
3.3 and 3.4, above, whichever is later, unless earlier terminated pursuant to
paragraph 6.2 below.


6.2.         Termination.
 This Agreement may only be terminated
upon the mutual written agreement of the Parties.



 15
 






 



6.3.         Survival.
 The provisions of paragraphs 2.3, 2.4,
2.5, 2.6 and 2.7 of Section II, paragraphs 3.1, 3.2, 3.6, 3.7, 3.8 and 3.9 of
Section III, Section V, paragraph 6.3 of Section VI, and Section VIII shall
survive any termination of this Agreement.


VII.         Future
Dispute Resolution


7.1.         CEO
Discussions.  Before initiating
any litigation, the Parties shall endeavor to amicably resolve any dispute arising
out of this Agreement or any other dispute pertaining to the respective
businesses of the Parties.  Before
initiating any litigation arising out of or related in any way to this
Agreement, to the AMO Patents or the Alcon Patents, to the AMO Products or the
Alcon Products, or otherwise arising out of the business activities of the
Parties, the Parties agree that the Chief Executive Officer of the party that
proposes to initiate litigation (the “Initiating Party”) shall contact the
Chief Executive Officer of the other party to attempt to resolve any dispute
informally without resort to litigation, contemporaneously with or before
giving any written notice of the existence of a dispute.  The Chief Executive Officers may resolve the
dispute themselves, or may designate other representatives to discuss and
attempt in good faith to resolve the dispute.  Each party shall work diligently to address
the concerns raised by the other, and in any event shall attempt to resolve the
dispute within twenty-one (21) days of being notified in writing of the
existence of a dispute, or such other length of time as the Parties may both
agree upon in writing.


7.2.         Mediation.
 In the event that the Parties are not
able to resolve their dispute pursuant to and within the time provided by
paragraph 7.1 above, the Parties agree that before initiating any litigation
against each other, the Parties shall submit any disputes to non-binding 



 16
 






 



mediation in Chicago, Illinois with a mutually
acceptable mediator; provided, however, that the Parties’ obligations to
mediate shall not prejudice any party’s right to seek injunctive relief from an
appropriate court following the mediation.  After the expiration of the time period provided
in paragraph 7.1 above, the Parties shall have ten (10) business days to pick a
mediator to hear the dispute.  If the
Parties are unable within ten (10) business days to agree upon a mediator, the
Parties shall utilize a mediator selected by JAMS from among its panel of
former jurists.  The Parties agree not to
initiate any action before any court with respect to such dispute until the
earlier of the completion of the mediation or ninety (90) days after the Initiating
Party has given written notice of the dispute to the other party.  In the event that mediation is unsuccessful, until
the end of a period of sixty (60) days following completion of the mediation or
one hundred fifty (150) days following written notice of the dispute, whichever
is earlier, no party other than the Initiating Party may bring litigation to
resolve the dispute.  The Initiating
Party’s choice of forum for such litigation shall be subject to the rights of
the other party to challenge the forum for any reason contemplated by the
applicable procedural rules and case law.


7.3.         Injunctive
Relief.  The Parties agree that nothing in this
Agreement shall be construed as precluding injunctive relief following the
mediation or otherwise altering the legal standard for the imposition of such
relief under the appropriate legal standards. 
The Parties further agree that a Party’s participation in, or delays
resulting from, the dispute resolution procedures described herein shall not be
used either in support of or in opposition to any claim or defense, whether
equitable or at law, in any subsequent litigation.


7.4.         Response to Regulatory
Agencies.  Nothing in this
Section VII precludes any party from complying with any regulatory or legal
reporting requirement or otherwise complying 



 17
 






 



with requests of regulatory or administrative agencies
that might affect the other party, or objecting to regulatory or administrative
agency decisions (e.g. patent opposition proceedings) that might involve any
other party.


VIII.        Miscellaneous Provisions


8.1.         Entire
Agreement, Modification, Waiver.  This agreement constitutes and contains the
entire agreement between the Parties regarding the Litigation and any future
disputes subject to provisions of Section VII above, and supersedes any and all
prior agreements, representations, negotiations, conversations, correspondence,
understanding, and letters, whether oral or written, of any kind or nature,
respecting the subject matter hereof.  This
Agreement may be amended or modified or one or more provisions hereof waived,
only by a written instrument signed by the Parties.  No failure or delay of either party to require
performance by the other party of any provision of this Agreement shall in any
way adversely affect such party’s right to require full performance of the same
or different provisions of this Agreement.  No waiver by one party of a breach of any
provision of this Agreement shall constitute a waiver of such party of any
succeeding breach of the same or different provisions.


8.2.         Notices.
 All notices required or permitted to be
given hereunder shall be in writing and shall be deemed delivered (i) upon
receipt if delivered by hand, (ii) the next business day after being sent by
prepaid, nationally-recognized, overnight air courier, (iii) five (5) business
days after being sent by registered or certified airmail, return receipt
required, postage prepaid, and (iv) upon transmittal when transmitted by
confirmed telecopy (provided that such



 18
 






 



notice is followed by notice pursuant to any of (i) -
(iii) above).  All notices shall be
addressed as follows:


If to AMO:


James V. Mazzo


Chairman, President &
CEO


Advanced Medical Optics,
Inc.


1700 E. St. Andrew Place


Santa Ana, California
92705


Phone:


Facsimile:


with a copy to:


Aimee Weisner


Corporate Vice President, General Counsel and
Secretary


Advanced Medical Optics, Inc.


1700 E. St. Andrew Place


Santa Ana, California 92705


Phone:


Facsimile:


If to Alcon:


Cary Rayment


Chairman, CEO & President


Alcon Laboratories, Inc.


6201 South Freeway


Forth Worth, Texas 76134-2099


Phone:


Facsimile:


with a copy to:


Elaine Whitbeck


Senior Vice President
& General Counsel


Alcon Laboratories, Inc.


6201 South Freeway


Forth Worth, Texas
76134-2099


Phone:


Facsimile:



 19
 






 



8.3.         Confidentiality.  Neither this Agreement, nor any of its terms,
shall be disclosed to any person or entity without the prior written consent of
all Parties, except that this Agreement and its terms may be disclosed (i) to
any insurer, reinsurer, attorney or auditor of the Parties after such person or
entity is first advised that the disclosure is subject to the confidentiality
provisions of this Agreement; (ii) to any of the Parties’ attorneys,
accountants or tax preparers after such person is first advised that the
disclosure is subject to the confidentiality provisions of this Agreement; and
(iii) to any other person or entity if and to the extent required by any law,
court order, rule, regulation, or other public disclosure requirement
(including exchange requirements or the NASD’s requirements, as applicable), in
the opinion of counsel for the disclosing party.  Any party that makes a disclosure of
information about this Agreement under subparagraph (iii) above shall take
reasonable measures to maintain the confidentiality of such information.  This Agreement and its terms may also be
disclosed by either party in any action or proceeding to enforce the terms of
this Agreement or in any other legal action or proceeding in which the terms of
this Agreement are relevant, provided that a protective order is sought in
advance to prevent any further dissemination and disclosure of this Agreement
and its terms.  Notwithstanding the
above, the Parties shall formulate mutually acceptable press releases regarding
their settlement herein, which the Parties shall be entitled to use freely
thereafter.


 


8.4.         No
Admissions By The Parties.


a.             This
Agreement is the result of a compromised settlement of disputed claims between
the Parties. The Parties agree that this Agreement shall not be construed as an



 20
 






 



admission or concession of liability, non-liability,
responsibility or wrongdoing by any party to this Agreement.


b.             The
Parties further agree that this Agreement is not, and shall not be construed as,
reflective or adoptive of any particular position, analysis or interpretation
as to the facts or nature of any claim.


c.             All
actions taken and statements made, whether orally or in writing, by the Parties,
or by their respective representatives, relating to this Agreement or participation
in this Agreement, including its development and implementation, shall not be
not used as evidence for any purpose in any other disputed matter.


8.5.         No
Construction Against Any Party.  The wording of this Agreement was reviewed and
accepted by legal counsel for each Party before being signed by them, and no party
shall be entitled to have any wording of this Agreement construed against any
other party in the event of any dispute arising between them in connection with
it, whether based on the identity of the drafter or on any other basis.


8.6.         No
Assignment of Agreement.  No Party hereto shall assign this Agreement without
first obtaining the written consent of the other Parties hereto; provided,
however, that consent shall not be required for any assignment of this Agreement
by the Parties to an Affiliate, nor shall consent be required for assignment by
a Party hereto by merger, sale or transfer of all or substantially all of the
assets of its phacoemulsification business, consolidation, or operation of law.
 Notwithstanding the foregoing, the
provisions of this Agreement that are not yet fully performed at the time of
the assignment shall extend to and be binding upon the Parties hereto and their
successors and assigns; provided however, that after any assignment under this



 21
 






 



paragraph 8.6, the obligation to engage in dispute
resolution in accordance with Section VII shall only apply between any combination
of original Parties and any Affiliates of the Parties with continuing
obligations under the Agreement.


8.7.         No
General Indemnification.  Except as specifically set forth in paragraph
5.3, the Parties shall not indemnify one another against any acts, deeds,
omissions, claims, causes of action or disputes that may arise from this
Agreement or from the relationship of the Parties.  Without limiting the foregoing in any manner,
neither party warrants any designs, products or methods disclosed by or claimed
in their patents licensed to the other party under this Agreement.  In the event that a party patent holder is
joined in any action or claim for any physical or economic injury to a third
party as a result of a particular licensed patent or design employed by the
other party (including without limitation claims alleging a design defect,
manufacturing defect, infringement, act of negligence, violation of law, or
other wrong), then that party patent holder shall defend itself and pay its own
costs, attorneys fees and other expense incurred or brought against the party
patent holder.  Nothing in this Agreement
shall prevent the party patent holder from seeking a voluntary agreement for indemnity
from the licensed party on such terms and conditions as the Parties may
mutually agree, however the licensed party is not obligated to undertake any
such indemnification.


8.8.         Applicable
Law. This Agreement shall be governed by and construed in accordance
with the federal laws of the United States and the laws of the State of Delaware
without regard to principles of conflicts of law.  This provision is a choice of law provision
only and not a choice of forum provision.  The Parties shall not
assert in any future litigation that their choice of law makes any forum more
or less appropriate than any other forum.



 22
 






 



8.9.         Counterparts.  This Agreement may be signed in counterparts,
each of which shall be deemed an original, and a copy or facsimile of the
fully-executed Agreement shall be as valid as the original.  This Agreement shall be amended only in
writing by duly authorized officers of the Parties, which amendment may also be
signed in counterparts.  No amendment is required
to give notice of a change of address, contact information, or other
modifications to the notification provisions of paragraph 8.2; however, any
such notice shall be given in accordance with the provisions of paragraph 8.2.


 


8.10.       No
Third-Party Beneficiaries.  Nothing in this Agreement shall confer any rights
upon any person or entity not a party to this Agreement.  Nevertheless, this Agreement is binding upon
the Parties.


8.11.       Headings.
 The headings and captions are inserted
for convenience of reference only and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement.


8.12.       Non-Agency.
 Nothing in this Agreement is intended or
shall be deemed to constitute a partnership, agency, employer-employee, or
joint venture relationship between the Parties.  No party shall incur any debts or make any
commitments for the other.  There is no fiduciary
duty or special relationship of any kind between the Parties to this Agreement.
 Each party expressly disclaims any
reliance on any act, word, or deed of any other party in entering into this
Agreement.


8.13.       Severability.
 If any provision or portion of a
provision of this Agreement is held by a court of competent jurisdiction to be
invalid under any applicable statute or rule of law, such court is authorized
to modify such provision to the minimum extent necessary to make it valid,



 23
 






 



and the remaining provisions or portions of provisions
of this Agreement shall in no way be affected or impaired thereby.


8.14.       Costs.
 Except as specifically ordered (and
already paid) in the Delaware Litigation relating to marking, each party shall
bear its own costs and expenses in connection with the Litigation, the
preparation of this Agreement, and performance hereunder.  However, in the event of litigation between
the Parties concerning i) the scope, enforcement or breach of this agreement;
or ii) intellectual property litigation concerning any Phacoemulsification
Equipment that either party can in good faith assert is covered by the licenses
or covenants of this Agreement, if one party prevails in such litigation by
obtaining a Rule 12(b)(6) dismissal, summary judgment, or judgment as a matter
of law of all or substantially all claims pleaded, then the prevailing party
shall be entitled to recover, and the other party shall pay, all costs and
expenses (including without limitation reasonable attorneys’ fees) incurred by
the prevailing party in such litigation.


******************************************************************



 24
 






 



IN
WITNESS WHEREOF, the Parties have caused their duly
authorized officers to execute this Agreement as of the dates below.


 


	
  ADVANCED MEDICAL OPTICS, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ JAMES V. MAZZO

  	
   

  	
   

  	
   

  
	
  Name:

  	
  James V. Mazzo

  	
   

  	
   

  
	
  Title:

  	
  Chairman, President and Chief Executive Officer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated this 6 day of July, 2006.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ALCON, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ JOANNE BECK

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Joanne Beck

  	
   

  	
   

  
	
  Title:

  	
  General Manager

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated this 7 day of July, 2006,

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  And

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ STEFAN BASLER

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Stefan Basler

  	
   

  	
   

  
	
  Title:

  	
  Finance Manager

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated this 7 day of July, 2006.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ALCON LABORATORIES, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ CARY RAYMENT

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Cary Rayment

  	
   

  	
   

  
	
  Title:

  	
  Chairman of the Board, Chief Executive Officer, and
  President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated this 7th day of July, 2006.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ALCON MANUFACTURING, LTD.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ CARY RAYMENT

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Cary Rayment

  	
   

  	
   

  
	
  Title:

  	
  Chairman and Chief Executive Officer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated this 7th day of July, 2006.

  	
   

  	
   

  



 



 25