Exhibit 10.63
MERGER TERMINATION
AGREEMENT
This Merger Termination Agreement
(this “ Agreement ”) is entered into as of
December 13, 2005 by and among Medicis Pharmaceutical
Corporation, a Delaware corporation (“ Parent
”), Masterpiece Acquisition Corp., a Delaware corporation and
a wholly owned subsidiary of Parent (“ Merger Sub
”), and Inamed Corporation, a Delaware corporation (the
“ Company ”).
RECITALS
WHEREAS, Parent, Merger Sub and the
Company have entered into an Agreement and Plan of Merger dated as
of March 20, 2005 (the “ Merger Agreement
”) (capitalized terms used but not otherwise defined herein
shall have the respective meanings provided for such terms in the
Merger Agreement); and
WHEREAS, Parent, Merger Sub and the
Company desire to terminate the Merger Agreement as provided herein
effective immediately upon execution of this Agreement and
Medicis’ receipt of the Company Termination Fee and
Reimbursement Fees pursuant to
Section 1(b) hereof.
AGREEMENT
NOW, THEREFORE, in consideration of
the premises and the agreements set forth herein, and intending to
be legally bound hereby, the parties agree as follows:
1.
Termination of Merger
Agreement .
(a)
Parent, Merger Sub and the Company
hereby terminate the Merger Agreement pursuant to Section 7.01
of the Merger Agreement, effective immediately upon the execution
of this Agreement and Medicis’ receipt of the Company
Termination Fee and Reimbursement Fees pursuant to
Section 1(b) hereof.
(b)
The Company shall pay to Parent
(i) the Company Termination Fee of $90,000,000 and
(ii) $481,985 pursuant to Section 5.10(a) of the
Merger Agreement (the “Reimbursement Fees”),
concurrently with the execution of this Agreement. Payment of
the Company Termination Fee and the Reimbursement Fees by the
Company shall be made by wire transfer of immediately available
funds to the account designated on Schedule 1 hereto.
Parent and Merger Sub agree and acknowledge that payment of the
Termination Fee and the Reimbursement Fees shall constitute full
and final satisfaction of any and all obligations of the Company
under Section 5.10 of the Merger Agreement.
2.
Effect of Termination; Mutual
Discharge and Release .
Each party hereto, on behalf of
itself and, to the extent permitted by law, its affiliates,
subsidiaries, directors, officers, stockholders, employees, agents,
financial and legal advisors and other Representatives, and the
successors and assigns of each of them (each, a “
Releasing Party ”), hereby fully, finally and forever
releases each other party hereto and each of their respective
affiliates, subsidiaries, directors, officers, stockholders,
employees, agents, financial and legal advisors and other
representatives, and the successors and assigns of each
of
1
them, from any and all liabilities and
obligations, claims, causes of action and suits, at law or in
equity, whether now known or unknown, based on or arising out of
facts of which such party has Knowledge (as defined below) on or
prior to the date hereof, whether arising under any United States
federal, state or local or any foreign law or otherwise, that any
Releasing Party has or has had arising out of, relating to, or in
connection with the Merger Agreement and the transactions
contemplated thereby, including, without limitation, any liability
or obligation arising out of any breach based on facts of which
such party has Knowledge on or before the date hereof of any
representation, warranty, covenant or agreement contained in the
Merger Agreement, provided that nothing in this
Section 2 shall impair the survival and full force of the
terms of the Confidentiality Agreement or Parent’s right to
receive immediate payment of the Company Termination Fee and the
Reimbursement Fees pursuant to Section 1 hereof and
Section 5.10 of the Merger Agreement.
3.
Survival of Confidentiality
Agreement .
(a)
Notwithstanding anything contained
in this Agreement to the contrary, the provisions of the
Confidentiality Agreement dated as of November 17, 2004
between Parent and the Company (the “Confidentiality
Agreement”) shall survive and remain in full force and effect
in accordance with their terms.
(b)
Each of Parent and Merger Sub, on
the one hand, and the Company, on the other hand, shall promptly
deliver to the other all Proprietary Information of the other
party, and, at the other party’s sole election, return or
destroy (provided that any such destruction shall be certified by a
duly authorized Representative of the party) all copies,
reproductions, summaries, analyses or extracts thereof or based
thereon (whether in hard-copy form or on intangible media, such as
electronic mail or computer files) in the party’s possession
or in the possession of any of its Representatives; provided
, that if a legal proceeding has been instituted to seek disclosure
of the Proprietary Information, such material shall not be
destroyed until the proceeding is settled or a final judgment with
respect thereto has been rendered; and provided ,
further , that all documents reflecting the party’s
final evaluation of the Merger Agreement and the reasons for its
decision to proceed or not to proceed with the transactions
contemplated thereby will not be required to be returned or
destroyed, however, the Confidentiality Agreement will continue to
apply to any such information on the terms set forth herein.
Notwithstanding the return or destruction of any Proprietary
Information, or documents or material containing or reflecting any
Proprietary Information, the parties will continue to be
