EXHIBIT 10.51


 


CHANGE IN CONTROL AGREEMENT


 


This Change In
Control Agreement (the “Agreement”) is made and entered into as of the
10th day of January, 2005, by and between Inamed Corporation, a Delaware
corporation (the “Corporation”), and Patricia
Walker (the “Executive”) (collectively, the “Parties”).  The Parties hereto, intending to be legally
bound, do hereby agree as follow:


 


1.                                       DEFINITIONS.  In addition to certain terms defined
elsewhere in this Agreement, the following terms shall have the following
respective meanings:


 


1.1                                 “Affiliate” shall mean any Person controlling, controlled by
or under common control with, the Corporation.


 


1.2                                 “Base Salary” shall mean the salary paid from time to time in
bi-weekly installments to employees by the corporation.


 


1.3                                 “Board” shall mean the Board of Directors of the Corporation.


 


1.4                                 “Cause” shall mean that the Executive:


 


(a)                                  has
been convicted of any felony or any crime involving fraud, theft, embezzlement,
dishonesty or moral turpitude;


 


(b)                                 has
engaged in conduct which is materially injurious to the Corporation or its
Affiliates, or any of their respective customer or supplier relationships,
financially or otherwise;


 


(c)                                  has
failed to perform his duties as required under Section 2 to the
reasonable satisfaction of the Board after being provided with notice thereof
and thirty (30) days opportunity to remedy such failure; or


 


(d)                                 in
carrying out his duties under this Agreement, has engaged in acts or omissions
constituting gross negligence or willful misconduct resulting, in either case,
in material harm to the Corporation.


 


1.5                                 “Change in Control” shall be deemed to have occurred if:


 


(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”) (other
than the Corporation, any trustee or other fiduciary holding securities under
an employee benefit plan of the Corporation, or any corporation owned, directly
or indirectly, by the stockholders of the Corporation in substantially the same
proportions as their ownership of stock of the Corporation), becomes the “beneficial
owner” (as defined in Rule 13d-3 


 


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under
the Exchange Act), directly or indirectly, of securities of the Corporation
representing fifty-one percent (51%) or more of the combined voting power of
the Corporation’s then outstanding securities; provided, however,
that a change in the proportion of Appaloosa Management, L.P’s ownership of
stock of the Corporation shall not constitute a Change in Control under this Subsection 1.5(a);


 


(b)                                 During
any period of two (2) consecutive years (not including any period prior to
the execution of this Agreement), individuals who at the beginning of such
period constitute the Board, and any new director (other than a director(s)
designated by a person who has entered into an agreement with the Corporation
to effect a transaction described in clause (a), (c) or (d) of this
subsection) whose election by the Board or nomination for election by the
Corporation’s stockholders was approved by a vote of at least two-thirds (2/3)
of the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute at least a majority
thereof;


 


(c)                                  The
stockholders of the Corporation approve a merger or consolidation of the
Corporation with any other corporation, other than (i) a merger or
consolidation which would result in the voting securities of the Corporation
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty (50%) of the combined voting power of the
voting securities of the Corporation or such surviving entity outstanding
immediately after such merger or consolidation or (ii) a merger or
consolidation effected to implement a recapitalization of the Corporation (or
similar transaction) in which no “person” (as defined above) acquires more than
twenty percent (20%) of the combined voting power of the Corporation’s then
outstanding securities; or


 


(d)                                 the
stockholders of the Corporation approve an agreement for the sale or
disposition by the Corporation of all or substantially all of the Corporation’s
assets.


 


1.6                                 “Corporation Property” shall mean all items and materials
provided by the Corporation to the Executive, or to which the Executive has
access, in the course of his employment, including, without limitation, all
files, records, documents, drawings, specifications, memoranda, notes, reports,
manuals, equipment, computer disks, videotapes, drawings, blueprints and other
documents and similar items relating to the Corporation, its Affiliates or
their respective customers, whether prepared by the Executive or others, and
any and all copies, abstracts and summaries thereof.


 


1.7                                 “Competition” shall mean any direct or indirect research on,
or development, production, marketing, leasing or selling of, any product,
process or service which is the same as, 


 


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similar to, or in competition with, any line of
business or research in which the Corporation or any Affiliate is now engaged
or hereinafter engages.


 


1.8                                 “Confidential Information” shall mean all nonpublic and/or
proprietary information and trade secrets respecting the business of the
Corporation or any Affiliate, including, without limitation, its products,
programs, projects, promotions, marketing plans and strategies, business plans
or practices, business operations, employees, research and development,
intellectual property, software, databases, trademarks, pricing information and
accounting and financing data.  Confidential
Information also includes information concerning the Corporation’s or any
Affiliate’s customers or clients, such as their identity, address or any other
information kept by the Corporation or any Affiliate concerning its customers
whether or not such information has been reduced to documentary form.  Confidential Information does not include
information that is, or becomes, available to the public unless such
availability occurs through an unauthorized act on the part of the Executive.  In the course of his employment hereunder,
the Executive shall not be provided with confidential information concerning
Appaloosa Management, L.P., and no such information shall be deemed to be
Confidential Information under this Agreement.


 


1.9                                 “Disability” shall mean a physical or mental incapacity that
prevents the Executive from performing the essential functions of his position
with the Corporation for a period of one hundred eighty (180) days as
determined (a) in accordance with any long-term disability plan provided
by the Corporation of which the Executive is a participant, or (b) by the
following procedure:  The Executive
agrees to submit to medical examinations by a licensed healthcare professional
selected by the Corporation, in its sole discretion, to determine whether a
Disability exists.  In addition, the
Executive may submit to the Corporation documentation of a Disability, or lack
thereof, from a licensed healthcare professional of his choice.  Following a determination of a Disability or
lack of Disability by the Corporation’s or the Executive’s licensed healthcare
professional, the other Party may submit subsequent documentation relating to
the existence of a Disability from a licensed healthcare professional selected
by such other Party.  In the event that
the medical opinions of such licensed healthcare professionals conflict, such
licensed healthcare professionals shall appoint a third licensed healthcare
professional to examine the Executive, and the opinion of such third licensed
healthcare professional shall be dispositive.


 


1.10                           “Person” shall mean any individual, firm, partnership,
association, trust, company, corporation or other entity.


 


2.                                       CHANGE IN CONTROL.


 


2.1                                 Vesting of Stock Options.  In the event of a Change in Control, all
stock options previously granted by the Corporation to the Executive shall
immediately vest.


 


2.2                                 Termination by the Corporation Without Cause.  If within twelve (12) months following a
Change in Control, the Executive’s employment is terminated by the Corporation
without Cause (other than by reason of the Executive’s death or disability),
the Executive shall be entitled, in lieu of any other compensation and benefits
whatsoever, to:


 


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(a)                                  payment
of his base salary at the rate in effect at the time of his termination through
the date of termination of employment;


 


(b)                                 an
amount equal to the greater of (i) one (1) time her annual base
salary at the time of the Change in Control or (ii) one (1) time her
annual base salary at the time of the termination of her employment, which
shall be paid out in equal bi-weekly installments through the Corporation’s
regular payroll practices;


 


(c)                                  any
annual bonus awarded but not yet paid pursuant to the Corporation’s Management
Incentive Plan (MIP) or any other incentive compensation plan;


 


(d)                                 reimbursement
of expenses incurred but not paid prior to such termination of employment; and


 


(e)                                  continuation
of participation in the Corporation’s group medical, dental and life insurance
plans, the premiums for which shall be paid by the Corporation, until the
earlier of twelve (12) months from the date of termination or until the date on
which the Executive first becomes eligible for substantially equivalent
insurance coverage provided by any other entity following termination of
employment by the Corporation.


 


2.3                                 Adjustment to Total Payments.  If any payment or right accruing to the
Executive under this Agreement (without application of this Section 2.4),
either alone or together with other payments or rights accruing to the
Executive from the Corporation (“Total Payments”) would constitute a “parachute
payment,” as defined in Section 2800 of the Code and regulations
thereunder, such payment or right shall be reduced to the largest amount or
greatest right that will result in no portion of the amount payable or right
accruing under this Agreement being subject to an excise tax under Section 4999
of the Code or being disallowed as a deduction under Section 2800 of the
Code.  The Executive shall cooperate in
good faith with the Corporation in providing the necessary information for
making a determination of the applicability of Section 2800.  The foregoing provisions of this Section 2.4
shall apply only if after reduction for any applicable federal excise tax
imposed by Section 4999 of the Code and federal income tax imposed by the
Code, the Total Payments accruing to the Executive would be less than the
amount of the Total Payments as reduced, if applicable, and after reduction for
only federal income taxes.


 


2.4                                 General Release.  No payments or benefits payable to the
Executive upon the termination of his employment pursuant to this Section 2
shall be made to the Executive unless and until he executes a general release
in a form satisfactory to the Corporation and such general release becomes effective
pursuant to its terms.


 


3.                                       DUTY OF LOYALTY.


 


3.1                                 Executive’s Position of Trust.  As a result of the Executive’s employment,
the Executive will have access to Confidential Information.


 


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3.2                                 Obligations During the Term.  The Executive agrees that during the Term of
Employment he shall diligently devote his time and efforts to the duties and
responsibilities assigned to him by the Corporation, and without prior express
written authorization of the Board, the Executive shall not, directly or
indirectly, either alone or in concert with others, engage in any of the
following activities:


 


(a)                                  Perform
or render any services of a business, professional or commercial nature,
relating to services or products competitive with the Corporation, to or for
the benefit of himself or any other person or entity, whether for compensation
or otherwise, except for personal investments and other activities approved by
the Corporation;


 


(b)                                 Engage
in any activity directly or indirectly in competition with or adverse to the
Corporation;


 


(c)                                  Engage
in any activity for purpose of influencing or attempting to influence the
Corporation’s customers, either directly or indirectly, to conduct business
with any business enterprise in competition with the Corporation; or


 


(d)                                 Undertake
or participate in any planning for or organization of any business activity
that is or will be in competition with the Corporation in any field(s) or
area(s) in which the Executive has worked or with which the Executive has come
into contact, or of which the Executive has gained knowledge during the Term of
Employment.


 


3.3                                 Post-Employment Obligations.  The Executive agrees that for a period of
twelve (12) months after termination of his employment, regardless of the
reason, the Executive will not, directly or indirectly, either for himself or
for any other person or entity, whether as an agent, consultant, employee,
officer, director, investor, partner, shareholder, proprietor or in any other
individual or representative capacity (excluding the holding for investment of
less that five percent (5%) of the outstanding securities of any corporation
which are regularly traded on a recognized stock exchange), do any of the
following:


 


(a)                                  the
Executive will not undertake any employment or activity wherein the loyal and
complete fulfillment of the duties of that employment or activity would call
upon the Executive to make judgments on or otherwise to use any Confidential
Information that is covered by this Agreement or the Intellectual Property and
Confidentiality Agreement.


 


(b)                                 Divert
or take away (or attempt to divert or take away), any of the Corporation’s
present, former or prospective customers, including, but not limited to, those
upon whom he called, met with or became acquainted with while engaged as an
employee of the Corporation;


 


(c)                                  Interfere
with the contractual or business relationships of the Corporation;


 


(d)                                 Solicit
or attempt to solicit any employees or clients of the Corporation; or


 


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(e)                                  Slander
or disparage the Corporation, or undertake any activity which adversely
impacts, or is reasonably likely to impact, the goodwill of the Corporation and
its business opportunities.


 


The Parties
agree that Article 5 of Exhibit B hereto (as identified in Section 4
below) shall apply only during the Term of Employment and for a period of
twelve (12) months thereafter.


 


3.4                                 Corporation Property.  The Executive agrees that upon termination of
his employment by the Corporation for any reason, or at such earlier time as
the Corporation may request, the Executive shall forthwith return to the
Corporation all documents and other property in his possession belonging to the
Corporation or any of its Affiliates.


 


3.5                                 Severability.  Each of the covenants of this section shall
be construed as separate covenant covering the subject matter in each of the
separate counties and states in the United States and governmental subdivisions
outside of the United States (collectively, the “Governmental Units”).  To the extent that any covenant is determined
by a court of competent jurisdiction to be unenforceable in any one or more of
said Governmental Units, said covenant shall not be affected with respect to
any other Governmental Unit, each covenant with respect to each Governmental
Unit being construed as severable and independent.


 


4.                                       MISCELLANEOUS.


 


4.1                                 Notices.  Any written notice required or permitted to
be given shall be deemed delivered either when personally delivered or when
mailed, registered or certified, postage prepaid with return receipt requested,
if to the Executive, addressed to the last residence address of the Executive
as shown in the records of the Corporation, and if to the Corporation,
addressed to the Chairman of the Board at its principal office in Santa
Barbara, California.  Mailed notices
shall be deemed received two (2) business days after the date of deposit
in the mail.


 


4.2                                 Partial Invalidity.  If any term or provision of this Agreement or
the application thereof to any person or circumstance shall be held to be
invalid or unenforceable to any extent, the remainder of this Agreement or
application of such term or provision to persons or circumstances other than
those to which it is held invalid or unenforceable shall not be affected
thereby, and each term and provision of the Agreement shall be valid and be
enforced to the fullest extent permitted by law.


 


4.3                                 Waiver.  No waiver of any right hereunder shall be
effective for any purpose unless in writing, signed by the Party hereto
possessing said right, nor shall any waiver be construed to be a waiver of any
subsequent right, term or provision of this Agreement.


 


4.4                                 Assignment; Effect on Agreement.  It is hereby acknowledged and agreed that the
Executive’s rights and obligations under this Agreement are personal in nature
and shall not be assigned or delegated. 
This Agreement shall be binding on and inure to the benefit of the
heirs, personal representatives, successors and assigns of the Parties, subject,
however, to the restrictions on assignment and delegation contained herein.


 


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4.5                                 Disputes Resolution and Arbitration.


 


4.5.1                        Any
dispute arising in connection with the interpretation or enforcement of the
provisions of this Agreement, or its application or validity, will be submitted
to arbitration.  Such arbitration
proceedings shall be instituted in Santa Barbara, California, in accordance
with the rules then existing of the American Arbitration Association.  This agreement to arbitrate is specifically
enforceable.


 


4.5.2                        Any award
rendered in any such arbitration proceeding will be final and binding on each
of the Parties, and judgment may be entered thereon in any court of competent
jurisdiction.  The arbitrator shall have
the authority to compel the Party that does not substantially prevail in such
proceeding to pay the reasonable costs and fees of the prevailing Party
(including reasonable and customary legal fees and expenses) to the extent that
the arbitrator deems appropriate.


 


4.6                                 Governing Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State of California.


 


4.7                                 Entire Agreement.  Unless expressly provided to the contrary
herein, this Agreement contains the entire agreement and understanding between
the Parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral or written. 
No modification or termination shall be valid unless in writing and
signed by both Parties.


 


5.                                       ACKNOWLEDGEMENT.  The Executive represents and acknowledges the
following:


 


(a)                                  he
has carefully read this Agreement in its entirety;


 


(b)                                 he
understands the terms and conditions contained herein;


 


(c)                                  he
has had the opportunity to review this Agreement, at his discretion, with legal
counsel of his own choosing and has not relied on any statement made by the
Corporation or its legal counsel as to the meaning of any term or condition
contained herein or in deciding whether to enter into this Agreement; and


 


(d)                                 he
is entering into this Agreement knowingly and voluntarily.


 


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IN
WITNESS WHEREOF, the Parties hereto have executed this
Agreement as of 10th day of January, 2005.


	
  INAMED
  CORPORATION

  	
  EXECUTIVE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
    /s/
  Nick Teti

  	
   

  	
  /s/
  Patricia Walker

  	
   

  
	
  Nick
  Teti

  	
  Patricia
  Walker

  	
   

  
	
  Title:
  Chairman, CEO and President

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  
							



 


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