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Exhibit 10.12
WAIVER AGREEMENT
This WAIVER
AGREEMENT (this "AGREEMENT") is entered into by and between
Mark A. Prygocki, Sr. ("EXECUTIVE") and
Medicis Pharmaceutical Corporation (the
"COMPANY"), effective as of July 15,
2005.
WHEREAS, the
Company has entered into that certain Agreement and Plan of
Merger, dated as of March 20, 2005 (the
"MERGER AGREEMENT"), by and among
Medicis, Masterpiece Acquisition Corp., a
Delaware corporation and wholly-owned
subsidiary of Medicis, and Inamed
Corporation ("INAMED");
WHEREAS,
pursuant to the terms and subject to the conditions of the
Merger
Agreement, Inamed would be merged with and
into a wholly-owned subsidiary of the
Company (the "MERGER") and the separate
corporate existence of Inamed would
thereafter cease to exist;
WHEREAS,
Executive holds (i) one or more options to purchase shares of
the
Company's common stock, as those options
are more particularly identified on
attached Schedule I (all such identified
options, together with any other of
Executive's currently outstanding options
or rights to purchase the Company's
capital stock, collectively, the "OPTIONS")
and (ii) the number of currently
unvested shares of the Company's common
stock listed on attached Schedule II
(all such listed unvested shares, together
with any other currently outstanding
unvested shares of the Company's capital
stock which have been issued to
Executive, collectively, the "RESTRICTED
STOCk");
WHEREAS, under
the provisions of the applicable documents governing the
Options and the shares of Restricted Stock
between Executive and the Company, as
currently in effect, each of the Options
will vest and become exercisable in
full, and each of the shares of Restricted
Stock will vest in full, on an
accelerated basis upon stockholder approval
of a transaction that would
constitute a "Change of Control" (as such
term is defined in the applicable
governing documents) (the "MERGER
ACCELERATION BENEFITS");
WHEREAS, the
Company desires that Executive agree to waive any and all
rights to receive the Merger Acceleration
Benefits in connection with the
stockholder approval of the proposed
Merger, the consummation of the proposed
Merger, or the consummation of any other
transaction(s) in connection with the
proposed Merger; and
WHEREAS, in
exchange for Executive's agreement to waive his right to
receive the Merger Acceleration Benefits,
the Company agrees that (i) each of
the Options and each of the Restricted
Shares shall vest in full on an
accelerated basis in the event of
Executive's death or Disability (as defined
below) at any time following the
consummation of the proposed Merger or in the
event of Executive's "Involuntary
Termination" (as defined below) during the
24-month period following the consummation
of the proposed Merger (the
"SUBSEQUENT MERGER ACCELERATION BENEFITS")
and (ii) Executive shall be entitled
to receive a lump sum cash payment equal to
$50,000 upon consummation of the
proposed Merger, subject to reduction for
all applicable payroll and withholding
taxes.
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NOW, THEREFORE,
for good and valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, the Company and Executive hereby
agree as follows:
1.
Notwithstanding anything to the contrary contained in any
document
governing the Options, the Restricted
Stock, or the Merger Acceleration
Benefits, Executive hereby waives any and
all of Executive's right or
entitlement to receive the Merger
Acceleration Benefits in connection with the
stockholder approval of the proposed
Merger, the consummation of the proposed
Merger, or the consummation of any other
transaction(s) in connection with the
proposed Merger, but only the proposed
Merger.
2. Executiv
