SHARED APPRECIATION AGREEMENT
This SHARED APPRECIATION AGREEMENT, dated as of March 22,
2000, is entered into between OBAGI MEDICAL PRODUCTS, INC., a California
corporation ("COMPANY"), and IMPERIAL BANK, a California banking corporation
("BANK").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
1.1 DEFINITIONS. For the purposes of this Agreement, the
following terms shall have the respective definitions specified with respect
thereto below:
"ACCELERATION EVENT" means the occurrence of any of the
following events: (i) an IPO, (ii) the liquidation, dissolution or winding up of
Company, (iii) the acquisition of Company or substantially all of its Assets in
one or a series of related transactions, (iv) a merger, sale, acquisition or
other transaction (in one or a series of related transactions) wherein Company's
shareholders immediately prior to the transaction (or series of related
transactions) own less than 50% of Company's voting power following such
transaction (or series of related transactions), (v) the repayment in full, in
cash, of Company's outstanding obligations to Bank and termination of the Credit
Agreement, or other termination or cancellation of the Credit Agreement or (vi)
if Company fails to materially observe or perform any of the covenants and
agreements set forth herein and such failure continues for five days beyond
notification by Bank, or if any representation, warranty, or certification made
by Company in this Agreement proves to have been untrue in any material respect
when made.
"AGREEMENT" means this Shared Appreciation Agreement, as may
be amended or restated from time to time in accordance with its terms.
"APPRECIATION PERIOD" means the period from and including
January 1, 2000 through and including December 31, 2001.
"ASSET" means any interest of a Person in any kind of property
or asset, whether real, personal, or mixed real and personal, and whether
tangible or intangible.
"Bank Expenses" means, without duplication of those expenses
paid pursuant to the Credit Agreement, (i) all expenses of Bank paid or incurred
in connection with Bank's due diligence and investigation of Company, including
appraisal, filing, recording, documentation, publication and search fees and
other such expenses, and all reasonable attorneys' fees and expenses (including
attorneys' fees incurred pursuant to proceedings arising under the Bankruptcy
Code) incurred in connection with the structuring, negotiation, drafting,
preparation, execution and delivery of this Agreement and any and all other
documents, instruments and agreements entered into in connection herewith; (ii)
all expenses of Bank, including reasonable attorneys' fees and expenses
(including attorneys' fees incurred pursuant to proceedings arising
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under the Bankruptcy Code) paid or incurred in connection with the
negotiation, preparation, execution and delivery of any waiver, forbearance,
consent, amendment or addition to this Agreement, or the termination hereof
and thereof; and (iii) if a default occurs hereunder, all reasonable expenses
paid or incurred by Bank, including reasonable attorneys' fees and expenses
(including attorneys' fees incurred pursuant to proceedings arising under the
Bankruptcy Code), costs of collection, suit, arbitration, judicial reference
and other enforcement proceedings, and any other out-of-pocket expenses
incurred in connection therewith or resulting therefrom, whether or not suit
is brought.
"CAPITAL LEASE" means any lease of an Asset by a Person as
lessee which would, in conformity with GAAP, be required to be accounted for as
an Asset and corresponding liability on the balance sheet of that Person.
"CAPITAL LEASE OBLIGATIONS" of a Person means the amount of
the obligations of such Person under all Capital Leases which would be shown as
a liability on a balance sheet of such Person prepared in accordance with GAAP.
"CONSOLIDATED EBITDA" means, with respect to any period, the
sum of (without duplication) (i) Consolidated Net Income for such period, (ii)
Consolidated Interest Expense during such period, (iii) accrued federal and
state income taxes payable by Company and the Subsidiaries during such period
which are included in the determination of Consolidated Net Income, and (iv)
Company's and the Subsidiaries' consolidated depreciation and amortization
expense during such period; calculated in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any
period, the current interest accrued during such period in accordance with GAAP
on the aggregate amount of Company's and the Subsidiaries consolidated Total
Funded Indebtedness.
"CONSOLIDATED NET INCOME" means, with respect to any period,
the consolidated net income of Company and the Subsidiaries reflected on
Company's Financial Statement for such period, calculated in accordance with
GAAP.
"CREDIT AGREEMENT" means that certain Amended and Restated
Credit Agreement, dated as of the date hereof, between Company and Bank, as may
be amended or restated from time to time in accordance with its terms.
"DOLLARS" or "$" means lawful currency of the United States of
America.
"FINANCIAL STATEMENT(S)" means, with respect to any
accounting period of any Person, statements of income and statements of cash
flows of such Person for such period, and balance sheets of such Person as of
the end of such period, all prepared in reasonable detail and in accordance with
GAAP, subject to year-end adjustments in the case of monthly Financial
Statements. Financial Statement(s) shall include the schedules thereto and
annual Financial Statements shall also include the footnotes thereto.
"GAAP" means generally accepted accounting principles in the
United States of America, consistently applied.
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"IPO" means an initial public offering of shares of common
stock of Company.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(i) the business, Assets, condition (financial or otherwise), results of
operations, or prospects of Company or any Subsidiary, (ii) the ability of
Company to perform its obligations under this Agreement, or (iii) the validity
or enforceability of this Agreement or the rights of Bank hereunder.
"PARTICIPANT" has the meaning set forth in Section 6.5(c).
"PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, joint ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts, or
other organizations, irrespective of whether they are legal entities, and
governments and agencies and political subdivisions thereof.
"SHARED APPRECIATION AMOUNT" means:
(i) if an Acceleration Event has not occurred, one quarter of
one percent (0.25%) of the appreciation in Company's equity value during the
Appreciation Period. The appreciation in Company's equity value shall be
calculated as the difference of (x) eight (8) times Consolidated EBITDA for the
12-month period ending at the expiration of the Appreciation Period, less
Company's Total Funded Indebtedness as of such date, MINUS (y) eight (8) times
Consolidated EBITDA for the 12-month period ending on December 31, 1999, less
Company's Total Funded Indebtedness as of such date, each as verified by
Company's independent CPA audits to Bank's reasonable satisfaction for the
applicable periods; PROVIDED HOWEVER, in no event shall the Shared Appreciation
Amount be less than $200,000 or greater than $350,000; and
(ii) if an Acceleration Event has occurred, the amount
indicated in the table below opposite the applicable period in which the
Acceleration Event occurred:
1/1/00 to 9/1/00 to 5/1/01 to
8/31/00 4/30/01 12/31/01
--------- --------- ---------
$200,000 $275,000 $350,000
"SUBSIDIARY" means any corporation, limited liability
company, partnership, trust or other entity (whether now existing or hereafter
organized or acquired) of which Company or one or more Subsidiaries of Company
at the time owns or controls directly or indirectly more than 50% of the shares
of stock or partnership or other ownership interest having general voting power
under ordinary circumstances to elect a majority of the board of directors,
managers or trustees or otherwise exercising control of such corporation,
limited liability company, partnership, trust or other entity (irrespective of
whether at the time stock or any other form of ownership of any other class or
classes shall have or might have voting power by reason of the happening of any
contingency).
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"TOTAL FUNDED INDEBTEDNESS" means, as of the date of
determination, the sum, but without duplication, of any and all of Company's (i)
indebtedness heretofore or hereafter created, issued, incurred or assumed by
Company (directly or indirectly) for or in respect of money borrowed; (ii)
Capital Lease Obligations; (iii) obligations evidenced by bonds, debentures,
notes, or other similar instruments; (iv) obligations for the deferred purchase
price of property or services (excluding trade obligations); (v) obligations
under standby letters of credit; (vi) obligations under acceptance facilities;
(vii) obligations secured by any lien, whether or not such obligations have been
assumed; and (viii) accrued dividends on Company's common or preferred stock
owing to Company's shareholders.
"TRANSFEREE" has the meaning set forth in Section 6.5(d).
1.2 ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP.
1.3 COMPUTATION OF TIME PERIODS. In this Agreement, with
respect to the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each mean "to but excluding." Periods of days referred to in this
Agreement shall be counted in calendar days unless otherwise stated.
1.4 CONSTRUCTION. Unless the context of this Agreement clearly
requires otherwise, references to the plural include the singular and to the
singular include the plural, references to any gender include any other gender,
the part includes the whole, the term "including" is not limiting, and the term
"or" has, except where otherwise indicated, the inclusive meaning represented by
the phrase "and/or." References in this Agreement to "determination" by Bank
include good faith estimates by Bank (in the case of quantitative
determinations), and good faith beliefs by Bank (in the case of qualitative
determinations). The words "hereof," "herein," "hereby," "hereunder," and
similar terms in this Agreement refer to this Agreement as a whole and not to
any particular provision of this Agreement. Article, section, subsection,
clause, exhibit and schedule references are to this Agreement, unless otherwise
specified. All article, section, subsection, clause, exhibit and schedule titles
used in this Agreement appear as a matter of convenience only and shall not
affect the interpretation of this Agreement. Any reference in this Agreement to
this Agreement includes any and all permitted alterations, amendments, changes,
extensions, modifications, renewals, or supplements thereto or thereof, as
applicable.
1.5 NO PRESUMPTION AGAINST ANY PARTY. Neither this Agreement,
any other document, agreement, or instrument entered into in connection
herewith, nor any uncertainty or ambiguity herein or therein shall be construed
or resolved using any presumption against any party hereto, whether under any
rule of construction or otherwise. On the contrary, this Agreement, and the
other documents, instruments, and agreements entered into in connection herewith
have been reviewed by each of the parties and their counsel and shall be
construed and interpreted according to the ordinary meanings of the words used
so as to accomplish fairly the purposes and intentions of all parties hereto.
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1.6 INDEPENDENCE OF PROVISIONS. All agreements and covenants
hereunder, and the other documents, instruments, and agreements entered into in
connection herewith shall be given independent effect such that if a particular
action or condition is prohibited by the terms of any such agreement or
covenant, the fact that such action or condition would be permitted within the
limitations of another agreement or covenant shall not be construed as allowing
such action to be taken or condition to exist.
ARTICLE II
SHARED APPRECIATION RIGHT
2.1 GRANT OF SHARED APPRECIATION RIGHT. In consideration of
Bank entering into the Credit Agreement with Company, Company hereby grants Bank
the right to receive from Company, and Company agrees to pay to Bank, the Shared
Appreciation Amount on the terms and conditions contained in this Agreement.
2.2 PAYMENT OF SHARED APPRECIATION AMOUNT. If an Acceleration
Event has not occurred, upon the expiration of the Appreciation Period Company
shall promptly but in no event later than ninety (90) days thereafter, provide
to Bank a calculation of the Shared Appreciation Amount in such form and detail
as Bank shall reasonably require, and upon Bank's approval thereof, Company
shall promptly but in no event later than three (3) business days thereafter pay
the Shared Appreciation Amount to Bank. If an Acceleration Event has occurred,
concurrent with the occurrence of such Acceleration Event, Company shall pay to
Bank the Shared Appreciation Amount indicated in the table within the definition
of "Shared Appreciation Amount" set forth in Section 1.1 hereof.
2.3 TIME AND PLACE OF PAYMENT.
(a) The Shared Appreciation Amount and all other
amounts due under this Agreement shall be paid to Bank in immediately available
Dollars, not later than 12:00 p.m., Pacific time, on the required date of
payment, to the following address or such other address as Bank may from time to
time specify by notice to Company:
IMPERIAL BANK
000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Commercial Loans
(b) Company hereby authorizes Bank to charge any
account which Company maintains with Bank for the amount of any payment due or
past due hereunder.
2.4 LATE PAYMENT FEE. If any payment due hereunder, whether
for the Shared Appreciation Amount, or otherwise, is not paid in full on or
before the thirtieth (30th) day after the date such payment is due, in addition
to and not in substitution of any of Bank's other rights and remedies with
respect to such nonpayment, Company shall pay to Bank a late payment fee equal
to five percent (5%) of the amount of such overdue payment ("LATE PAYMENT FEE")
PLUS an additional Late Payment Fee at the expiration of each month thereafter
until all amounts due hereunder have been paid in full, in cash.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce Bank to enter into this Agreement, Company
hereby represents and warrants to Bank as follows:
3.1 LEGAL STATUS. Company and each Subsidiary is duly
organized and existing under the laws of its state of formation. Company and
each Subsidiary has the power and authority to own its own Assets and to
transact the business in which it is engaged, and is properly licensed,
qualified to do business and in good standing in every jurisdiction in which it
is doing business where failure to so qualify could have a Material Adverse
Effect.
3.2 NO VIOLATION; COMPLIANCE. The execution, delivery and
performance of this Agreement are within Company's powers, are not in conflict
with the terms of any charter, articles of incorporation, bylaws, or other
organization papers of Company, and do not result in a breach of or constitute a
default under any contract, obligation, indenture or other instrument to which
Company is a party or by which Company is bound or affected. There is no law,
rule or regulation, nor is there any judgment, decree or order of any court or
Governmental authority binding on Company which would be contravened by the
execution, delivery, performance or enforcement of this Agreement.
3.3 AUTHORIZATION; ENFORCEABILITY. Company has taken all
corporate action necessary to authorize the execution and delivery of this
Agreement, and the consummation of the transactions contemplated hereby. This
Agreement constitutes the legal, valid and binding agreement and obligations of
Company enforceable against Company in accordance with its respective terms,
except as enforceability may be limited by bankruptcy, insolvency, and similar
laws and equitable principles affecting the enforcement of creditors' rights
generally.
3.4 APPROVALS; CONSENTS. No approval, consent, exemption or
other action by, or notice to or filing with, any Governmental authority is
necessary in connection with the execution, delivery, performance or enforcement
of this Agreement.
ARTICLE IV
AFFIRMATIVE COVENANTS
Company covenants and agrees that until the indefeasible
payment in full of the Shared Appreciation Amount, Company shall:
4.1 BOOKS AND RECORDS. Maintain, and cause each Subsidiary to
maintain, adequate books and records in accordance with GAAP, and permit any
officer, employee or agent of Bank, at any time and from time to time, to
inspect, audit and examine such books and records, and to make copies of the
same.
4.2 ACCELERATION EVENT. Use its commercially reasonable best
efforts to give Bank written notice of any Acceleration Event at least thirty
(30) days prior to the occurrence thereof.
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4.2 FURTHER ASSURANCES. Execute and deliver, or cause to be
executed and delivered, upon the request of Bank and at Company's expense, such
additional documents, instruments and agreements as Bank may reasonably
determine to be necessary or advisable to carry out the provisions of this
Agreement and the transactions and actions contemplated hereunder.
ARTICLE V
NEGATIVE COVENANTS
Company further covenants and agrees that until the
indefeasible payment in full of the Shared Appreciation Amount, Company shall
not:
5.1 CHARACTER OF BUSINESS. Engage in any business activities
or operations substantially different from or unrelated to its present business
activities and operations, or permit any Subsidiary to do so.
ARTICLE VI
MISCELLANEOUS
6.1 NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission or
similar writing) and shall be given to such party at its address or facsimile
number set forth on the signature pages hereof or such other address or
facsimile number as such party may hereafter specify by notice to the other
party in accordance with this Section 6.1. Each such notice, request or other
communication shall be deemed given on the second business day after mailing;
provided that actual notice, however and from whomever given or received, shall
always be effective on receipt.
6.2 NO WAIVERS. No failure or delay by Bank 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 or further exercise
thereof or the exercise of any other right, power or privilege.
6.3 BANK EXPENSES; DOCUMENTARY TAXES; INDEMNIFICATION.
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(a) Company shall pay all Bank Expenses on demand.
(b) Company shall indemnify Bank against any transfer
taxes, documentary taxes, assessments, or charges made by any governmental
authority of the United States of America, or any political subdivision or
governmental authority thereof or therein, and imposed on Bank by reason of the
execution and delivery of this Agreement, or any other document, instrument or
agreement entered into in connection herewith, excluding any taxes imposed on
Bank under the Internal Revenue Code or similar state and local laws and
determined by Bank's net income or revenue earned.
(c) Company shall and hereby agrees to indemnify,
protect, defend and hold harmless Bank and its directors, officers, agents,
employees and attorneys from and against any and all losses, claims, damages,
liabilities, deficiencies, judgments, costs and expenses (including attorneys'
fees and attorneys' fees incurred pursuant to proceedings arising under the
United States Bankruptcy Code) incurred by any of them (except to the extent
that it is finally judicially determined to have resulted from their own gross
negligence or willful misconduct) arising out of or by reason of any
litigations, investigations, claims or proceedings (whether administrative,
judicial or otherwise), including discovery, whether or not Bank is designated a
party thereto, which arise out of or are in any way related to (i) this
Agreement or the transactions contemplated hereby or thereby, or (ii) Bank's
entering into this Agreement or any other agreements and documents relating
hereto. If and to the extent that the obligations of Company hereunder are
unenforceable for any reason, Company hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations of Bank which
is permissible under applicable law.
(d) Company's obligations under this Section 6.3
shall survive any termination of this Agreement and the payment in full of the
Shared Appreciation Amount, and are in addition to, and not in substitution of,
any other of its obligations set forth in this Agreement.
6.4 AMENDMENTS AND WAIVERS. Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed by the party asserted to be bound thereby, and then
such amendment or waiver shall be effective only in the specific instance and
specific purpose for which given.
6.5 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; DISCLOSURE.
(a) This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
except that Company may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of Bank and any such
prohibited assignment or transfer by Company shall be void.
(b) Bank may, at its own expense, assign to one or
more banks or other financial institutions all or a portion of its rights under
this Agreement.
(c) Bank may at any time sell to one or more banks or
other financial institutions (each a "PARTICIPANT") participating interests in
any interest of Bank hereunder. In the event of any such sale by Bank of a
participating interest to a Participant, Company shall
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continue to deal solely and directly with Bank in connection with Bank's
rights under this Agreement.
(d) Company authorizes Bank to disclose to any
assignee or any Participant (either, a "TRANSFEREE") and any prospective
Transferee any and all financial information in Bank's possession concerning
Company which has been delivered to Bank by Company pursuant to this Agreement
or which has been delivered to Bank by Company in connection with Bank's credit
evaluation prior to entering into this Agreement, subject to the Transferee's
written assumption of the same level of confidentiality as provided by Bank to
Company.
6.6 COUNTERPARTS; INTEGRATION. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement constitutes the entire agreement and understanding among the
parties hereto and supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
6.7 SEVERABILITY. The provisions of this Agreement are
severable. The invalidity, in whole or in part, of any provision of this
Agreement shall not affect the validity or enforceability of any other of its
provisions. If one or more provisions hereof shall be declared invalid or
unenforceable, the remaining provisions shall remain in full force and effect
and shall be construed in the broadest possible manner to effectuate the
purposes hereof.
6.8 GOVERNING LAW. This Agreement shall be deemed to have been
made in the State of California and the validity, construction, interpretation,
and enforcement hereof, and the rights of the parties hereto, shall be
determined under, governed by, and construed in accordance with the internal
laws of the State of California, without regard to principles of conflicts of
law.
6.9 JUDICIAL REFERENCE.
(a) Other than (i) nonjudicial foreclosure and all
matters in connection therewith regarding security interests in real or personal
property; or (ii) the appointment of a receiver, or the exercise of other
provisional remedies (any and all of which may be initiated pursuant to
applicable law), each controversy, dispute or claim between the parties arising
out of or relating to this Agreement, which controversy, dispute or claim is not
settled in writing within thirty (30) days after the "CLAIM DATE" (defined as
the date on which a party subject to this Agreement gives written notice to all
other parties that a controversy, dispute or claim exists), will be settled by a
reference proceeding in California in accordance with the provisions of Section
638 ET SEQ. of the California Code of Civil Procedure, or their successor
section ("CCP"), which shall constitute the exclusive remedy for the settlement
of any controversy, dispute or claim concerning this Agreement, including
whether such controversy, dispute or claim is subject to the reference
proceeding and except as set forth above, the parties waive their rights to
initiate any legal proceedings against each other in any court or jurisdiction
other than the Superior Court in the County where any real property collateral
is located, or Los Angeles County, if none (the "COURT"). The referee shall be a
retired Judge of the Court selected by mutual agreement of the parties, and if
they cannot so agree within forty-five (45) days after the Claim Date, the
referee shall be promptly selected by the Presiding Judge of the Court (or his
or
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her representative). The referee shall be appointed to sit as a temporary
judge, with all of the powers for a temporary judge, as authorized by law,
and upon selection should take and subscribe to the oath of office as
provided for in Rule 244 of the California Rules of Court (or any
subsequently enacted Rule). Each party shall have one peremptory challenge
pursuant to CCP Section 170.6. The referee shall (i) be requested to set the
matter for hearing within sixty (60) days after the Claim Date and (ii) try
any and all issues of law or fact and report a statement of decision upon
them, if possible, within ninety (90) days of the Claim Date. Any decision
rendered by the referee will be final, binding and conclusive and judgment
shall be entered pursuant to CCP Section 644 in any court in the State of
California having jurisdiction. Any party may apply for a reference
proceeding at any time after thirty (30) days following notice to any other
party of the nature of the controversy, dispute or claim, by filing a
petition for a hearing and/or trial. All discovery permitted by this
Agreement shall be completed no later than fifteen (15) days before the first
hearing date established by the referee. The referee may extend such period
in the event of a party's refusal to provide requested discovery for any
reason whatsoever, including, without limitation, legal objections raised to
such discovery or unavailability of a witness due to absence or illness. No
party shall be entitled to "priority" in conducting discovery. Depositions
may be taken by either party upon seven (7) days written notice, and request
for production or inspection of documents shall be responded to within ten
(10) days after service. All disputes relating to discovery which cannot be
resolved by the parties shall be submitted to the referee whose decision
shall be final and binding upon the parties. Pending appointment of the
referee as provided herein, the Superior Court is empowered to issue
temporary and/or provisional remedies, as appropriate.
(b) Except as expressly set forth in this Agreement,
the referee shall determine the manner in which the reference proceeding is
conducted including the time and place of all hearings, the order of
presentation of evidence, and all other questions that arise with respect to the
course of the reference proceeding. All proceedings and hearings conducted
before the referee, except for trial, shall be conducted without a court
reporter except that when any party so requests, a court reporter will be used
at any hearing conducted before the referee. The party making such a request
shall have the obligation to arrange for and pay for the court reporter. The
costs of the court reporter at the trial shall be borne equally by the parties.
(c) The referee shall be required to determine all
issues in accordance with existing case law and the statutory laws of the State
of California. The rules of evidence applicable to proceedings at law in the
State of California will be applicable to the reference proceeding. The referee
shall be empowered to enter equitable as well as legal relief, to provide all
temporary and/or provisional remedies and to enter equitable orders that will be
binding upon the parties. The referee shall issue a single judgment at the close
of the reference proceeding which shall dispose of all of the claims of the
parties that are the subject of the reference. The parties hereto expressly
reserve the right to contest or appeal from the final judgment or any appealable
order or appealable judgment entered by the referee. The parties hereto
expressly reserve the right to findings of fact, conclusions of laws, a written
statement of decision, and the right to move for a new trial or a different
judgment, which new trial, if granted, is also to be a reference proceeding
under this provision.
(d) In the event that the enabling legislation which
provides for appointment of a referee is repealed (and no successor statute is
enacted), any dispute between
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the parties that would otherwise be determined by the reference procedure
herein described will be resolved and determined by arbitration. The
arbitration will be conducted by a retired judge of the Court, in accordance
with the California Arbitration Act, `1280 through `1294.2 of the CCP as
amended from time to time. The limitations with respect to discovery as set
forth hereinabove shall apply to any such arbitration proceeding.
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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.
Company: OBAGI MEDICAL PRODUCTS, INC.
By: /s/ Xxxxxx Xxxx
---------------------------
Name: XXXXXX XXXX
Title: PRESIDENT
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: XXXXXX X. XXXXXXX
Title: CHIEF FINANCIAL OFFICER
Address for Notices:
000 Xxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Attn: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Bank: IMPERIAL BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx, Vice President
Address for Notices:
Imperial Bank
000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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