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COLLAGEN AESTHETICS, INC.
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
April 23, 1999
Xx. Xxx Xxxxx
President
INAMED Corporation
0000 Xxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000
CONFIDENTIALITY AGREEMENT
Ladies and Gentlemen:
1. In connection with our mutual consideration of a possible
transaction (the "Transaction") between Collagen Aesthetics, Inc. ("Collagen")
and INAMED Corporation ("Potential Buyer"), Collagen may have delivered or may
deliver to Potential Buyer or its Representatives (as defined below) certain
oral and written Information (as defined below) concerning Collagen and the
Transaction.
2. As used herein, "Information" means (i) all data, reports, analyses,
compilations, studies, interpretations, forecasts, records and other materials
(in whatever form maintained, whether documentary, computer stored or otherwise)
that contain or otherwise reflect information concerning Collagen, any of its
subsidiaries or affiliates or the Transaction, or any portion thereof, that
Collagen (as defined below) or its Representatives may provide to the Potential
Buyer or its Representatives in the course of the evaluation of the Transaction
("Provided Information"), together with all data, reports, analyses,
compilations, studies, interpretations, forecasts, records or other materials
(in whatever form maintained, whether documentary, computer stored or otherwise)
prepared by the Potential Buyer receiving Provided Information or its
Representatives that contain or otherwise reflect or are based upon, in whole or
in part, any Provided Information ("Derived Information"), and (ii) the fact
that discussions or negotiations are taking place between Potential Buyer and
Collagen concerning the Transaction and all information related thereto with
respect to the Transaction, including the status thereof. As used herein,
"Representatives" means, collectively, the controlled affiliates of Potential
Buyer or Collagen, as the case may be, and the respective directors,
shareholders, employees, financial advisors, lenders, accountants, attorneys,
agents, equity investors or controlling persons of Potential Buyer or Collagen,
as the case may be, or their controlled affiliates. As used herein, the term
"person" shall be broadly interpreted to included, without limitation, any
corporation, partnership, trust or individual. Potential Buyer and Collagen are
sometimes referred to herein individually as a "Party" and collectively as the
"Parties."
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3. Potential Buyer agrees that, in consideration of being furnished
with the Information, all information shall be kept confidential and shall not,
without the prior written consent of Collagen, be disclosed by the Potential
Buyer or its Representatives in any manner whatsoever, in whole or in part,
other than to the Potential Buyer's Representatives, and shall not be used,
directly or indirectly, for any purpose other than in connection with evaluating
the Transaction and not in any way inherently detrimental to Collagen. Moreover,
Potential Buyer agrees to reveal Information only to its Representatives if and
to the extent that such Representatives, in the reasonable judgment of the
Potential Buyer, need to know any Information for the purpose of evaluating the
Transaction and are informed of the confidential nature of the Information and
agree to be bound by the terms and conditions of this Agreement. Potential Buyer
shall be responsible for any breach of this Agreement by its Representatives
(including Representatives who, subsequent to the first date of disclosure of
Information hereunder, become former Representatives). Moreover, Potential Buyer
shall take all reasonably necessary measures to restrain their respective
Representatives (or former Representatives) from unauthorized disclosure or use
of the Information.
4. Potential Buyer agrees that from the date hereof up to and including
the date of acceptance by Collagen of any written offer from the Potential Buyer
relating to the Transaction, Potential Buyer and its Representatives shall not,
without Collagen's written consent, identify Collagen by name or by identifiable
description to any other person in connection with the Transaction. The
Potential Buyer shall not take any action, without the written consent of
Collagen, that could be reasonably foreseen to result in a disclosure of any
Information in any filing or other required disclosure.
5. If a Transaction is not consummated or if Collagen so requests, the
Potential Buyer shall promptly return to Collagen all copies of the Information
in its possession and in the possession of its Representatives, and will destroy
all copies of any Derived Information, provided, however, that documents
reflecting the Potential Buyer's final evaluation of the Transaction and the
reasons for its decision not to proceed with such a Transaction will not need to
be returned or destroyed, provided further, however, that this Agreement will
continue to apply to documents reflecting such final evaluation and the
Potential Buyer will continue to be bound by its obligations of confidentiality
and other obligations hereunder.
6. The Potential Buyer shall not initiate or maintain contact (except
for those contacts made in the ordinary course of business) with any officer,
director, shareholder, employee or agent of Collagen or its subsidiaries
regarding its business, operations, prospects or finances, nor shall the
Potential Buyer solicit, encourage or attempt to solicit or encourage any of the
foregoing to cease their relationship with the Company for any reason, except
with the express written permission of Collagen. It is further understood that
all (i) communications regarding a possible Transaction, (ii) requests for
additional Information, (iii) requests for facility tours or management
meetings, and (iv) discussions or questions regarding procedures will be
submitted or directed to the Undersigned or a designee of Collagen specified in
writing by the Undersigned.
7. This Agreement shall not apply to such of the Information as (a) is
or becomes generally available to the public other than as a result of any
disclosure or other action or inaction
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by the Potential Buyer or anyone to whom the Potential Buyer or any of its
Representatives transmit or have transmitted any Information, (b) is or becomes
known or available to the Potential Buyer on a nonconfidential basis from a
source (other than Collagen or any of its subsidiaries or affiliates or any of
their respective Representatives or pursuant hereto) that, to the best of the
Potential Buyer's knowledge, after due inquiry, is not prohibited from
disclosing such Information to the Potential Buyer by a contractual, legal or
fiduciary obligation owed to Collagen or its Representatives, or (c) was
independently developed by the Potential Buyer without reference to the Provided
Information, provided such independent development can reasonably be proven by
the Potential Buyer's written records.
8. Potential Buyer (i) acknowledges that neither Collagen nor any of
its subsidiaries or affiliates or any of its Representatives make any
representation or warranty (express or implied) as to the accuracy or
completeness of any Information, and (ii) agrees to assume full responsibility
for all conclusions Potential Buyer derives from the Information. Potential
Buyer shall be entitled to, and shall, rely solely on representations and
warranties made in any final agreement, if any, relating to the Transaction.
Nothing contained in this Agreement nor the conveying of Information hereunder
shall be construed as granting or conferring any rights by license or otherwise
in any intellectual property.
9. In the event that the Potential Buyer or any person to whom it or
its Representatives transmit or have transmitted Information become legally
compelled (by oral questions, interrogatories, requests for Information or
documents, subpoenas, civil investigative demands or otherwise) to disclose any
such Information, the party under the legal compulsion (the "Compelled Party")
shall provide Collagen with prompt written notice so that Collagen may seek a
protective order or other appropriate remedy, or both, or waive compliance with
the provisions of this Agreement. In the event that Collagen is unable to obtain
a protective order or other appropriate remedy, or if it so directs the
Compelled Party, the Compelled Party shall furnish only that portion of the
Information that the Compelled Party is advised by its counsel is legally
required to be furnished by it and shall exercise its reasonable best efforts to
obtain reliable assurance that confidential treatment shall be accorded such
Information.
10. For a period of eighteen months from the date of this Agreement,
neither the Potential Buyer nor any of its affiliates (as such term is defined
under the Securities Exchange Act of 1934, as amended) or its Representatives
shall without the prior written approval of the Board of Directors of Collagen
(i) in any manner acquire, agree to acquire or make any proposal to acquire,
directly or indirectly, any voting securities or property of Collagen or any of
its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger
or business combination involving Collagen or any of its subsidiaries or to
purchase, directly or indirectly, a material portion of the assets of Collagen
or any of its subsidiaries, (iii) make, or in any way participate, directly or
indirectly, in any "solicitation" of "proxies" (as such terms are used in the
proxy rules of the Securities and Exchange Commission) to vote, or seek to
advise or influence any person with respect to the voting of any voting
securities of Collagen or any of its subsidiaries, (iv) form, join or in any way
participate in a "group" (within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934) or otherwise act, alone or in concert with
others, to seek to control or influence the management, Board of Directors or
policies of Collagen, (v) disclose any intention, plan or arrangement with
respect to any of the foregoing or (vi) advise, assist or
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encourage any other persons in connection with any of the foregoing. The
Potential Buyer also agrees during such period not to (x) request Collagen (or
its directors, shareholders, officers, employees or agents), directly or
indirectly, to amend or waive any provision of this paragraph or (y) take any
action which might require Collagen to make a public announcement regarding the
possibility of a business combination or merger.
11. The Potential Buyer hereby acknowledges that it is aware and that
its Representatives have been advised that the United States securities laws
prohibit any person who has material non-public information about a company from
purchasing or selling securities of such company.
12. The Potential Buyer also understands and agrees that no contract or
agreement providing for a Transaction with Collagen shall be deemed to exist
between the Parties unless and until a definitive Transaction agreement has been
executed and delivered, and the Potential Buyer hereby waives, in advance, any
claims (including, without limitation breach of contract) in connection with a
possible Transaction with Collagen unless and until the Parties shall have
entered into a definitive Transaction agreement. The Prospective Buyer also
agrees that unless and until a Transaction agreement between the Parties has
been executed and delivered, Collagen has no legal obligations of any kind
whatsoever with respect to any such Transaction by virtue of this Agreement or
any other written or oral expression with respect to such Transaction except, in
the case of this Agreement, for the matters specifically agreed to herein. The
Potential Buyer further understands that (i) Collagen shall be free to conduct
the process for a possible Transaction as it in its sole discretion shall
determine (including, without limitation, negotiating with any other prospective
parties and entering into a definitive Transaction agreement with any other
party without prior notice to the Potential Buyer or any other person), (ii) any
procedures relating to such possible Transaction may be changed at any time
without notice to the Potential Buyer or any other Person, (iii) Collagen
reserves the right, in its sole and absolute discretion, to reject any and all
proposals and to terminate discussions and negotiations with the Potential Buyer
at any time, and (iv) the Potential Buyer shall not have any claims whatsoever
against Collagen or any of its directors, officers, shareholders, owners,
affiliates or agents arising out of or relating to a possible Transaction with
the Potential Buyer (other than those as against the parties to a definitive
Transaction Agreement in accordance with the terms thereof).
13. This Agreement shall inure to the benefit of and be binding upon
Potential Buyer and Collagen and their respective successors and permitted
assigns.
14. The Parties agree that Collagen would be irreparably injured by a
breach of this Agreement by the Potential Buyer or its Representatives and that
Collagen shall be entitled to equitable relief, including injunctive relief and
specific performance, in the event of any breach of the provisions of this
Agreement. Such remedies shall not be deemed to be the exclusive remedies for a
breach of this Agreement by the Potential Buyer or its Representatives, but
shall be in addition to all other remedies available at law or in equity.
15. The Parties also hereby irrevocably and unconditionally consent to
submit to the exclusive jurisdiction of the courts of the State of California
for any actions, suits or proceedings arising out of or relating to this
Agreement and the Transactions contemplated hereby (and the
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Parties agree not to commence any action, suit or proceeding relating thereto
except in such courts), and further agree that service of any process, summons,
notice or document by U.S. registered mail to the other Party's address set
forth below shall be effective service of process for any action, suit or
proceeding brought in any such court. The Parties hereby irrevocably and
unconditionally waive any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the Transaction contemplated
hereby, in the courts of the State of California or the United States of America
located in the State of California, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.
16. All notices required to be provided pursuant to this Agreement
shall be addressed and shall be sent either by overnight delivery by a courier
of national reputation (e.g., Federal Express) or by confirmed facsimile with
the original sent either by overnight delivery or by U.S. mail:
in the case of Collagen:
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxxx, CEO
Fax: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxx
Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
in the case of Potential Buyer:
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Attn:
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Fax:
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with a copy to:
Xxxxx Xxxx, XX
Xxxxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
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17. No failure or delay by either Party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise thereof preclude any other further exercise of any right,
power or privilege hereunder.
18. Any assignment of this Agreement by Potential Buyer or Collagen
without the prior written consent of the other Party shall be void.
19. Except as provided for in Section 10 hereof, this Agreement shall
terminate three years from the date hereof. After the termination of Section 10
hereof, the remaining provisions of this Agreement shall not be construed to
prohibit or limit either Party hereto from taking the actions described in
Section 10 hereof.
20. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of California.
21. This Agreement contains the entire agreement between the Parties
concerning the confidentiality of the Information and related matters, and no
modifications of this Agreement or waiver of the terms and conditions hereof
shall be binding upon the Parties, unless approved in writing by each of
Potential Buyer and Collagen.
22. No written consent required by this Agreement shall be unreasonably
withheld.
If the foregoing reflects our agreement, kindly sign and return the
duplicate copy of this letter to us.
Sincerely,
COLLAGEN AESTHETICS, INC.
By:
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Xxxx Xxxxxxxxxxx
Chief Executive Officer
Agreed to as of the date set forth above:
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By:
Name:
Title:
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