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


 


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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 of
the Confidentiality Agreement (or such other term as may be applicable to the
specific obligation).


 


4.             Representations
and Warranties of Parent and Merger Sub. 
Parent and Merger Sub hereby represent to the Company as follows:  Each of Parent and Merger Sub has full
corporate power and authority to execute, deliver and perform this Agreement;
this Agreement has been duly and validly authorized by their respective boards
of directors and executed and delivered by each of them, and constitutes a
valid binding obligation of each of them, enforceable against each of them in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors’ rights
generally and by general equitable principles; and neither Parent nor Merger
Sub have assigned, transferred or conveyed


 


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to any other Person any claim
or any portion thereof or interest therein relating to any of the matters that
are the subject of this Agreement.


 


5.             Representations
and Warranties of the Company.  The
Company hereby represents to Parent as follows: 
The Company has full corporate power and authority to execute, deliver
and perform this Agreement; this Agreement has been duly and validly authorized
by the Company’s board of directors and executed and delivered by the Company,
and constitutes a valid binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors’ rights generally and by general equitable principles; the Company
has available and ready funds sufficient to pay the amounts set forth in Section 1
hereof; and the Company has not assigned,
transferred or conveyed to any other Person any claim or any portion thereof or
interest therein relating to any of the matters that are the subject of this
Agreement.


 


6.             Public
Announcement.  Parent and the Company
acknowledge that each intends to issue a press release promptly after the date
of this Agreement with respect to this Agreement and the termination of the
Merger Agreement.  Each of Parent and the
Company shall use reasonable efforts to consult with the other before issuing
such press release, and in no event may either party issue such press until the
termination of the Merger Agreement has become effective pursuant to Section 1
hereof.


 


7.             Governing
Law; Waiver of Jury Trial.


 


(a)           This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware, without giving effect to the conflict of law provisions
thereof.  This Agreement shall be binding
upon any successor to the Company or Parent or Merger Sub.  In addition, each of the parties hereto (a) irrevocably
and unconditionally consents to submit itself to the jurisdiction of the Court
of Chancery of the State of Delaware in the event any dispute arises out of
this Agreement or the transactions contemplated by this Agreement, (b) agrees
that it will not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court, (c) agrees that it will
not bring any action relating to this Agreement or the transactions
contemplated by this Agreement in any court other than the Court of Chancery of
the State of Delaware, and each of the parties irrevocably waives the right to
trial by jury, (d) waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action on the Court
of Chancery of the State of Delaware, and (e) irrevocably consents to
service of process by first class certified mail, return receipt requested,
postage prepaid, to the address at which such party is to receive notice.


 


(b)           Each
of the parties hereto hereby waives to the fullest extent permitted by
applicable law any right it may have to a trial by jury with respect to any
litigation directly or indirectly arising out of, under or in connection with
this Agreement or the Merger Agreement.


 


8.             Specific
Performance.  The parties hereto
agree that irreparable damage would occur in the event any provision of this
Agreement were not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.  It is accordingly agreed that in any
proceeding


 


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seeking specific performance
each of the parties will waive the defense of adequacy of a remedy at law.


 


9.             Miscellaneous.


 


(a)           The
descriptive headings contained in this Agreement are included for convenience
of reference only and shall not affect in any way the meaning or interpretation
of this Agreement.


 


(b)           Each
party agrees to use reasonable effort to take reasonable actions as any other
party may reasonably request to carry out the intent of this Agreement and to
take any other actions required under applicable Law to carry out and
effectuate the intent of this Agreement.


 


(c)           This
Agreement, the Merger Agreement and the Confidentiality Agreement constitute
the entire agreement among the parties hereto with respect to the subject
matter hereof and supersede all prior agreements, understandings and
negotiations, both written and oral, between the parties with respect to the
subject matter of this Agreement.  No
representation, inducement, promise, understanding, condition or warranty not
set forth herein has been made or relied upon by either party hereto in
connection with this Agreement.


 


(d)           This
Agreement may be modified or amended only by a writing signed by the parties
hereto.  This Agreement may be executed
and delivered (including by facsimile transmission) in one of more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed and delivered shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.


 


(e)           If
any provision of this Agreement is held to be illegal, invalid or unenforceable
under any present or future laws, and if the rights or obligations of any party
hereto under this Agreement will not be materially and adversely affected
thereby, (a) such provision will be fully severable, (b) this
Agreement will be construed and enforced as if such illegal, invalid or unenforceable
provisions had never comprised a part hereof, and (c) the remaining
provisions of this Agreement will remain in full force and effect and will not
be affected by the illegal, invalid or unenforceable provision or by its
severance herefrom.


 


(f)            If
any legal action, including, without limitation, an action for arbitration or
injunctive relief, is brought relating to this Agreement or the Merger
Agreement or the breach or alleged breach hereof or thereof, the prevailing
party in any final judgment or arbitration award, or the non-dismissing party
in the event of a voluntary dismissal by the party instituting the action,
shall be entitled to the full amount of all reasonable legal expenses,
including all court costs, arbitration fees and actual attorneys’ fees paid or
incurred in good faith.


 


(g)           A
party hereto shall be deemed to have “Knowledge” of a particular fact or other
matter, and a particular fact or other matter shall be deemed “known to” a
party hereto if any executive officer of such party (a) is actually aware
of such fact or matter, or (b) would be expected to discover or otherwise
become aware of such fact or other matter after consultation with its outside
legal advisors.


 


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IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.


 


	
   

  	
  MEDICIS PHARMACEUTICAL
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Mark A. Prygocki, Sr.

  
	
   

  	
   

  	
  Name: Mark A. Prygocki, Sr.

  
	
   

  	
   

  	
  Title: Executive Vice
  President, Chief Financial

  Officer, Corporate Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MASTERPIECE
  ACQUISITION CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Mark A. Prygocki, Sr.

  
	
   

  	
   

  	
  Name: Mark A.
  Prygocki, Sr.

  
	
   

  	
   

  	
  Title: Vice President,
  Secretary, Chief Financial

  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INAMED CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Nicholas L. Teti

  
	
   

  	
   

  	
  Name: Nicholas L. Teti

  
	
   

  	
   

  	
  Title: Chairman,
  President and CEO

  



 


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