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EXHIBIT 10.1
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
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and legal advisors and other
representatives, and the successors and assigns of
each of 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 bound by their obligations of
confidentiality and other obligations
hereunder for the term o
