Contract
Exhibit
10.47
August
26, 2008
Xxxxx
Xxxxxx
[Home
Address]
Dear
Xxxxx:
I
am pleased to offer you the position of Vice President and General Counsel of
Obagi Medical Products, Inc. (the “Company”) effective September 3, 2008 on the
following terms:
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A.
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Duties
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You
will perform the duties customarily associated with this position with respect
to the Company’s operations on a full-time basis, and will report directly to
the Chief Financial Officer/Executive Vice President, Operations and
Administration
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B.
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Compensation
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Salary: Your
salary shall be $260,000 per annum paid in accordance with the Company’s normal
payroll practices, and subject to standard payroll deductions and
withholdings.
Annual
Performance Bonus: You
shall be entitled to an annual performance bonus based on the achievement of
certain benchmarks to be set by the Board of Directors of the Company in
its sole
discretion. You will be eligible for an annual performance
bonus of up to 40% of your base salary beginning in the year 2008 as adjusted
for performance in accordance with the benchmarks to be
established. No bonus is payable unless you are employed by the
Company on the day the Board approves bonuses of the applicable
year. All bonuses are subject to Board approval and will be
paid in accordance with the Company’s normal payroll practices, subject to
standard payroll deductions and withholdings.
Sign On
Bonus
You
will also be eligible to receive a signing bonus of $10,000 to be paid on
12/31/08. Within your first 30 days of employment, you will meet with
your manager to discuss goals to be met
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which
will enable you to receive your bonus. You will have to be employed full time as
of 12/31/08 to receive this bonus.
Stock
Options: You
will be eligible to receive a stock option grant of 40,000 shares, subject to
the stock option plan and Board Approval. The grant of the stock
options will be subject to the other terms and provisions of the Company’s 2008
Stock Option Plan and Stock Option Agreement and its subsequent amendments, and
to the satisfaction of all federal and state securities laws. The
exercise price of such options will be determined at the end of day stock price
on the date of hire.
Benefits: You
will be eligible to enroll in the Company’s group life, medical, dental and
vision plans on September 3, 2008. Additional information regarding
plan options and benefit summaries is enclosed. You will also receive all other
benefits the Company provides to similarly situated employees
(e.g., health and dental insurance coverage).
Annual
Leave:
You will be eligible for the following annual
leave:
3 Weeks Vacation
4 Floating days
6 Days of sick leave
9 Holidays
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C.
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Expenses
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The
Company shall reimburse you for all other reasonable, ordinary and necessary
expenses incurred in the performance of your duties (such reimbursement shall be
conditioned upon the submission of reasonable detailed receipts and/or invoices
substantiating such expenses).
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D.
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Termination
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Either
you or the Company may terminate your employment with or without cause, at any
time, for any reason whatsoever without advance notice. This at-will
employment relationship cannot be changed except by in writing signed by the CEO
of the Company. Your signature below confirms your
understanding that your employment with Obagi is “At-Will” at all
times.
If
the Company terminates your employment for any reason, except for cause, during
the first year of your employment, you will receive as your sole severance, your
base salary for the greater of the remaining term of the initial twelve months
or 6 months, payable semi-monthly, subject to standard payroll deductions and
withholdings. If the Company terminates your employment for any
reason, except for cause, after the first year of your employment, you will
receive as your sole severance, your base salary for six (6) months payable
semi-monthly, subject to standard payroll deductions and
withholdings. If the Company terminates your employment, except for
cause, after the first year of your employment, but due to a change of control
within twelve months of the change of control, you will receive as your sole
severance, your base salary for twelve (12) months payable semi-monthly, subject
to standard payroll
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deductions
and withholdings. These payments shall cease immediately if you
violate any provision of this Agreement, including the
provisions of Section G. If the Company
exercises either of these rights to terminate your employment, you will be paid all earned wages
upon termination, and no further compensation will be owed to you other
than the severance payment referred to herein.
If
you voluntarily terminate your employment within the first year of your
employment, you will be required to reimburse the Company an amount equal to
your reimbursed relocation costs.
If
you voluntarily terminate your employment, if you die or become physically or
mentally disabled (subject to the Company’s requirement to comply with all
applicable laws), or if the Company terminates your employment for cause, you will be paid all earned wages
upon termination, and no further compensation or including severance
benefits, will be owed to
you. For purposes of this Agreement, termination for
cause shall mean material misconduct, including, but not limited to (i)
conviction of any felony or any crime involving moral turpitude or dishonesty or
which is punishable by imprisonment in a state or federal correctional
facility; (ii) participation in a fraud or act of dishonesty against
the Company or any of its customers or suppliers; (iii) willful and material
breach of Company policies or willful violation of reasonable rules,
regulations, orders or directives of the Company’s Board of Directors; (iv)
refusal to perform your duties on a full-time basis; (v) material breach of any
term of this Agreement or any
other written agreement or covenant with the Company; (vi) intentional
damage to Company property;
or (vii) conduct by you which in the good faith and reasonable
determination of the Board of Directors of the Company demonstrates gross
negligence, willful malfeasance or gross unfitness to serve.
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E.
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401K
Benefits
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You
will become eligible
to enroll in the Company’s 401K plan on October 1, 2008. This
includes an employer-matching program, wherein the Company will match 100% of
your contributions up to the first 3% of your annual
salary. Additional information regarding this plan will be sent to
you prior to your
eligibility date.
F. Policies
and Procedures
You
will be expected to abide by all Company policies and
procedures. The
Company may issue policies, rules, regulations, guidelines, procedures,
or other informational material, whether in the form of handbooks, memoranda, or
otherwise, relating to its employees. These materials are general
guidelines for your information and shall not be construed to alter, modify, or
amend this Agreement for any purpose
whatsoever, and this Agreement shall control over
such policies to the extent of any conflict.
G. Confidentiality/Non-Solicitation
At any time following execution of this Agreement, you agree not to
use or disclose, directly or indirectly, for any reason, whatsoever or in any
way any confidential information or trade secrets of the Company, including, but
not limited to, information with respect to the
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Company
as follows: the identity, lists, and/or descriptions of any customers
of the Company;
financial statements, cost reports, and other financial information; product or
service pricing information; contract proposals and bidding information;
processes, policies and procedures developed as part of a confidential business
plan; and management systems and procedures, including manuals and supplements
thereto, other than (i) at the direction of the Company during the
course of your employment (ii) after receipt of the prior written consent of
the Company, (iii) as
required by any court or governmental regulatory agency having competent
jurisdiction over the
Company, or (iv) where
the information has
been made public by the Company.
You
agree that all copyrights, trademarks, tradenames, service marks, inventions,
processes and other intangible or intellectual property rights that may be
invented, conceived, developed or enhanced by you while you are employed by the
Company that relate to
the Company’s business, or that result from any work performed by you for the
Company, shall be the sole property of the Company, and you hereby assign to the
Company any right or interest that you may otherwise have in respect
thereof. Upon the reasonable request of the Company, you shall
execute acknowledge, deliver and file any instrument or document necessary or
appropriate to give effect to this provision and do all other acts and things
necessary to enable the Company to exploit the same or to obtain patents or
similar protection with respect thereto. You agree that the covenants
set forth in this paragraph shall accrue to the benefit of the Company, irrespective of
the reason for termination of the other provisions of this Agreement and the
corresponding employment relationship created hereby.
You agree that while you are
employed by the Company and for a period of three years thereafter you will not,
without the prior written consent of the Company’s Board of
Directors,
induce or attempt to induce any person then, or during the immediately
preceding six (6) month period, engaged or employed (whether part-time or
full-time) by the Company or any Transferee, whether as an officer, employee,
consultant, salesman, adviser or independent contractor to leave the employ of
the Company or such Transferee, as the case may be, or to cease providing the
services to the Company or such Transferee, as the case may be, then provided by
such person, or in any other manner seek to engage or employ any such person
(whether or not for compensation) as an officer, employee, consultant, adviser
or independent contractor such that such person would thereafter be unable to
devote his or her full business time and attention to the business then
conducted by the Company or such Transferee, as the case may
be.
You
hereby specifically acknowledge and agree that the restrictions contained in
the above paragraph
are reasonable and necessary to protect the business and prospective business of
Company, and that the enforcement of the provisions of this paragraph will not
cause an undue hardship on you.
H. Eligibility for
Employment
For purposes of federal immigration
law, you will be required to provide the Company documentary evidence of your
identity and eligibility for employment in the United States. Such
documentation must be provided to us within three business days of hire, or your
employment relationship may be terminated.
I. Miscellaneous
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To
ensure rapid and economical resolution of any disputes which may arise with the
Company, or any of its officers or directors or under this Agreement, you agree that
any and all disputes or controversies, whether of law or fact of any nature
whatsoever (including, but not limited to, all state and federal statutory and
discrimination claims whether for race, sex, sexual orientation, religion,
national origin, age, marital status, or medical condition, handicap or
disability, or otherwise) arising from any such dispute or regarding the
interpretation, performance, enforcement or breach of this Agreement shall be resolved
by final and binding arbitration under the Judicial Arbitration and Mediation
Services Rules of Practice and Procedure.
If
any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws, such provision
shall be fully severable, and this Agreement and each separate
provision hereof shall be construed and enforced as if such illegal invalid, or
unenforceable provision had never comprised a part of this Agreement, and the remaining
provisions of this Agreement, shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement. In
addition, in lieu of such illegal, invalid, or unenforceable provision, there
shall be added automatically as part of this Agreement a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible and be legal, valid and enforceable, if such reformation is allowable
under applicable law.
This
Agreement constitutes
the complete, final and exclusive embodiment of the entire agreement between you
and the Company with respect to the terms and conditions of your employment, and
it supersedes any agreements or promises made to you by anyone, whether oral or
written. You agree that, except as provided herein, no other
representations or promises were made to you regarding your employment with the
Company. This Agreement shall be construed
and interpreted in accordance with the laws of the State of
California.
This
offer is contingent upon successful completion of a standard background
check.
We
look forward to your joining the Company and to a successful and enjoyable
working relationship.
Sincerely,
| Obagi Medical Products, Inc. | ||||
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By:
/s/ XXXXXXX XXXX
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Xxxxxxx
Xxxx, Chief Financial Officer/Executive Vice President, Operations and
Administration
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| Accepted By: | ||||
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/s/
XXXXX XXXXXX
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Date:
September 4, 2008
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