**Exhibit10.61**

 

**CHANGE IN CONTROL AGREEMENT**

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This Change In ControlAgreement (the “Agreement”) is made and entered into as of the 18`h day ofApril, 2002, by and between Inamed Corporation, a Delaware corporation (the “Corporation”),and Hani Zeini (the “Executive”) (collectively; the “Parties”).  The Parties hereto, intending to be legallybound, do hereby agree as follow:

1.                                       **DEFINITIONS**. For purposes of this Agreement the following terms shall have thefollowing respective meanings:

1.1                                 “**Board**” shallmean the Board of Directors of the Corporation.

1.2                                 “**Cause**” shallmean that the Executive:

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

(b)                                 has engaged in conduct which ismaterially injurious to the business or the reputation of the Corporation orits affiliates, or any of their respective customer or supplier relationships;

(c)                                  in carrying out his duties under thisAgreement, has engaged in acts or omissions constituting gross negligence orwillful misconduct resulting, in either case, in material harm to theCorporation.

1.3                                 “**Change in Control**”shall be deemed to have occurred if.

(a)                                  Any “person”, as such term is used inSections 13(d) and 14(d) of the Securities Exchange Act of 1934, asamended (the “Exchange Act”) (other than the Corporation, any trustee or otherfiduciary holding securities under an employee benefit plan of the Corporation,or any corporation owned, directly or indirectly, by the stockholders of theCorporation in substantially the same proportions as their ownership of stockof the Corporation), becomes the “beneficial owner” (as defined inRule 13d-3 under the Exchange Act), directly or indirectly, of securitiesof the Corporation representing fifty-one percent (51%) or more of the combinedvoting power of the Corporation’s then outstanding securities; provided,however, that a change in the proportion of Appaloosa Management, L.P.’sownership of stock of the Corporation shall not constitute a Change in Controlunder this Subsection 1.3(a);

(b)                                 During any period of two (2) consecutiveyears (not including any period prior to the execution of this Agreement),individuals who at the beginning 

 

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                                                of such period constitute the Board, andany new director (other than a director(s) designated by a person who hasentered into an agreement with the Corporation to effect a transactiondescribed in clause (a), (c) or (d) of this subsection) whose election by theBoard or nomination for election by the Corporation’s stockholders was approvedby a vote of at least two-thirds (2/3) of the directors then still in officewho either were directors at the beginning of the period or whose election ornomination for election was previously so approved, cease for any reason toconstitute .  at least a majoritythereof;

(c)                                  The stockholders of the Corporationapprove a merger or consolidation of the Corporation with any othercorporation, other than (i) a merger or consolidation which would resultin the voting securities of the Corporation outstanding immediately priorthereto continuing to represent (either by remaining outstanding or by beingconverted into voting securities of the surviving entity) more than fifty (50%)of the combined voting power of the voting securities of the Corporation orsuch surviving entity outstanding immediately after such merger orconsolidation or (ii) a merger or consolidation effected to implement arecapitalization of the Corporation (or similar transaction) in which no “person”(as defined above) acquires more than twenty percent (20%) of the combinedvoting power of the Corporation’s then outstanding securities; or

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

1.4                                 “**Good Reason**”shall mean and exist if, without the Executive’s prior written consent, one ormore of the following events occurs:

(a)                                  the Executive is assigned duties orresponsibilities that are materially different from the duties andresponsibilities that that were assigned to him immediately prior to the Changein Control;

(b)                                 the Executive’s base salary is decreasedby the Corporation;

(c)                                  the Executive is excluded from participationin any employee benefit plan or program offered to other similarly executivesof the Corporation or his benefits under such plans or programs are materiallyreduced; or

(d)                                 the Executive is asked to relocateoutside of Santa Barbara County; or

(e)                                  the Corporation fails to reimburse theExecutive for business expenses in accordance with the Corporation’s policies,procedures or practices;

provided, however,that none.  of the foregoing shall constituteGood Reason if: (i) the Executive gives the Corporation timely notice ofhis intent to terminate for Good Reason and the Corporation cures or remediesthe reasons cited by the Executive in said notice within thirty (30) 

 

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days of receipt of saidnotice, or (ii) sixty (60) days or more have passed between the event(s)constituting Good Reason and the Executive’s giving notice that he isterminating his employment for Good Reason.

1.5                                 “**Person**” shallmean 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 previouslygranted by the Corporation to the Executive shall immediately vest.

2.2                                 **Termination by the CorporationWithout Cause or by the Executive for Good Reason After a Change in Control**. If within twelve (12) months following a Change in Control, theExecutive’s employment is terminated by the Corporation without Cause (otherthan by reason of the Executive’s death or disability) or by the Executive forGood Reason, the Executive shall be entitled, in lieu of any other compensationand benefits whatsoever, to:

(a)                                  payment of his base salary at the rate ineffect at the time of his termination through the date of termination ofemployment;

 

 

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(b)                                 an amount equal to the greater of (i) two(2) times his annual base salary at the time of the Change in Control or (ii)two (2) times his annual base salary at the time of the termination of hisemployment, which shall be paid out in equal bi-weekly installments through theCorporation’s regular payroll practices;

(c)                                  any annual bonus awarded but not yet paidpursuant to the Corporation’s Management Incentive Plan (MIP) or any otherincentive compensation plan;

(d)                                 reimbursement of expenses incurred butnot paid prior to such termination of employment; and

(e)                                  continuation of participation in theCorporation’s group medical, dental and life insurance plans, the premiums forwhich shall be paid by the Corporation, until the earlier of eighteen (18)months from the date of termination or until the date on which the Executivefirst becomes eligible for substantially equivalent insurance coverage providedby any other entity following termination of employment by the Corporation.

2.3                                 **Termination by Executivewithout Good Reason After a Change in Control**. If the Executive terminates his employment without Good Reason after thefirst (1st) anniversary of a Change in Control but within ninety (90) daysfollowing such anniversary, the Executive shall be entitled, in lieu of anyother compensation and benefits, to:

(a)                                  payment of his base salary at the rate ineffect at the time of his termination through the date of termination ofemployment;

 

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(b)                                 an amount equal to the greater of (i) oneand one-half (1/2) times his annual base salary at the time of the Change inControl or (ii) one and one-half (1/2) times his annual base salary at the timeof the termination of his employment, which shall be paid out in equalbi-weekly installments through the Corporation’s regular payroll practices;

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

(d)                                 reimbursement of expenses incurred butnot paid prior to such termination of employment; and

(e)                                  continuation of participation in theCorporation’s group medical, dental and life insurance plans, the premiums forwhich shall be paid by the Corporation, until the earlier of eighteen (18)months from the date of termination or until the date on which the Executivefirst becomes eligible for substantially equivalent insurance coverage providedby any other entity following termination of employment by the Corporation.

2.4                                 **Adjustment to TotalPayments**.  If any payment or right accruing to theExecutive under this Agreement (without application of this Section 2.4),either alone or together with other payments or rights accruing to theExecutive from the Corporation (“Total Payments”) would constitute a “parachutepayment;” as defined in Section 280G of the Code and regulationsthereunder, such payment or right shall be reduced to the largest amount orgreatest right that will result in no portion of the amount payable or rightaccruing under this Agreement being subject to an excise tax under Section 4999of the Code or being disallowed as a deduction under Section 280G of theCode.  The Executive- shall cooperate ingood faith with the Corporation in providing the necessary information formaking a determination of the applicability of Section 280G.  The foregoing provisions of this Section 2.4shall apply only if after reduction for any applicable federal excise taximposed by Section 4999 of the Code and federal income tax imposed by theCode, the Total Payments accruing to the Executive would be less than theamount of the Total Payments as reduced, if applicable, and after reduction foronly federal income taxes.

2.5                                 **General Release**. No payments or benefits payable to the Executive upon the termination ofhis employment pursuant to this Section 2 shall be made to theExecutive unless and until he executes a general release in a form satisfactoryto the Corporation and such general release becomes effective pursuant to itsterms.

3.                                       **MISCELLANEOUS**.

3.1                                 **Notices**. Any written notice required or permitted to be given shall be deemeddelivered either when personally delivered or when mailed, registered orcertified, postage prepaid with return receipt requested, if to the Executive,addressed to the last residence address of the Executive as shown in therecords of the Corporation, and if to the Corporation, addressed 

 

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tothe Chairman of the Board at its principal office in Santa Barbara,California.  Mailed notices shall bedeemed received two (2) business days after the date of deposit in the mail.

3.2                                 **Partial Invalidity**. If any term or provision of this Agreement or the application thereof toany person or circumstance shall be held to be invalid or unenforceable to anyextent, the remainder of this Agreement or application of such term orprovision to persons or circumstances other than those to which it is heldinvalid or unenforceable shall not be affected thereby, and each term andprovision of the Agreement shall be valid and be enforced to the fullest extentpermitted by law.

3.3                                 **Waiver**. No waiver of any right hereunder shall be effective for any purposeunless in writing, signed by the Party hereto possessing said right, nor shallany waiver be construed to be a waiver of any subsequent right, term orprovision of this Agreement.

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

3.5                                 **Disputes Resolution andArbitration**.

3.5.1                        Any dispute arising in connection withthe interpretation or enforcement of the provisions of this Agreement, or itsapplication or validity, will be submitted to arbitration.  Such arbitration proceedings shall beinstituted in Santa Barbara, California, in accordance with the rules thenexisting of the American Arbitration Association.  This agreement to arbitrate is specificallyenforceable.

3.5.2                        Any award rendered in any sucharbitration proceeding will be final and binding on each of the Parties, andjudgment may be entered thereon in any court of competent jurisdiction.  The arbitrator shall have the authority to compelthe Party that does not substantially prevail in such proceeding to pay thereasonable costs and fees of the prevailing Party (including reasonable andcustomary legal fees and expenses) to the extent that the arbitrator deemsappropriate.

3.6                                 **Governing Law**. This Agreement shall be governed by and construed in accordance with thelaws of the State of California.

3.7                                 **Entire Agreement**. Unless expressly provided to the contrary herein, this Agreementcontains the entire agreement and understanding between the Parties withrespect to the subject matter hereof and supersedes all prior agreements andunderstandings, oral or written.  Nomodification or termination shall be valid unless in writing and signed by bothParties.

4.                                       **ACKNOWLEDGEMENT**.  TheExecutive represents and acknowledges the following:

(a)                                  he has carefully read this Agreement inits entirety;

(b)                                 he understands the terms and conditionscontained herein;

 

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(c)                                  he has had the opportunity to review thisAgreement, at his discretion, with legal counsel of his own choosing and hasnot relied on any statement made by the Corporation or its legal counsel as tothe meaning of any term or condition contained herein or in deciding whether toenter into this Agreement; and

(d)                                 he is entering into this Agreementknowingly and voluntarily.

**IN WITNESS WHEREOF**, the Parties hereto have executed thisAgreement as of the 18th day of April, 2002.
| INAMED CORPORATION |                    | EXECUTIVE |
|--------------------|-------------------------|-----------|
|               |                    |      |
|               |                    |      |
| By:                | /s/ Nick Teti           |      | By: | /s/ Hani Zeini |
|               |   Nick Teti   |      |   |   Hani Zeini |
| Title:             | Chief Executive Officer |      |   |
|               |                    | Address:  | 1109 Camino del Rio |
|               |                    |      | Santa Barbara, CA 93110 |
|               |                    |      |   |
| Date:              | May 6, 2002             |      | Date: | June 10, 2002 |
|                    |                         |           |  |  |  |  |  |

 

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