JOINT VENTURE AGREEMENT
Between
OBAGI MEDICAL PRODUCTS, INC.
and
ROHTO PHARMACEUTICAL CO., LTD.
Dated as of February 4, 2000
JOINT VENTURE AGREEMENT
This JOINT VENTURE AGREEMENT (this "Agreement"), dated as of February 4,
2000, is by and between Obagi Medical Products, Inc., a California
corporation ("OMP") and Rohto Pharmaceutical Co., Ltd., a Japanese
corporation ("Rohto") (collectively, OMP and Rohto are referred to as the
"Partners" and each individually is referenced to as a "Partner").
WHEREAS OMP develops, manufactures, markets, distributes and sells in
the United States and certain other geographic areas certain proprietary skin
care products under a number of different trademarks and product brands; and
WHEREAS Rohto is a leading pharmaceutical company which sells a broad
range of pharmaceutical products in Japan; and
WHEREAS OMP and Rohto wish to form a joint venture company in Japan
called Obagi-Rohto Medical Products KK (the "Company") to market, distribute
and sell in Japan those products set forth on SCHEDULE A and such other
products as may be agreed upon by the Partners (the "Products").
NOW, THEREFORE, for the mutual promises and conditions contained herein,
and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Partners hereby agree as follows:
1. OBJECTIVES OF THE COMPANY
The objectives of the Company shall be to import, market, distribute and
sell the Products in Japan.
2. INCORPORATION; INITIAL CAPITAL CONTRIBUTIONS; OWNERSHIP OF THE
COMPANY
(a) Oh-ebashi Law Office, Umeda Shinmichi Building 8F, Dojima 1-chome,
▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇-▇▇▇▇, ▇▇▇▇▇, shall incorporate the Company as a Kabushiki
Kaisha (joint stock corporation) under the laws of Japan with the Articles of
Incorporation in the form to be agreed between the Partners. The corporate
name of the Company shall be "Obagi-Rohto Medical Products KK." The head
office of the Company will be located at ▇-▇-▇ ▇▇▇▇▇, ▇▇▇▇▇▇-▇▇, ▇▇▇▇▇
▇▇▇-▇▇▇▇, ▇▇▇▇▇.
(b) Each of the Partners shall contribute Yen 20,000,000, within two (2)
business days following the execution and delivery of the agreements listed
in Section 5 hereof, by wire transfer of immediately available funds to The
Bank of Tokyo-Mitsubishi, Ltd. which, in turn, shall transfer such funds to
an account of the Company at such bank to be opened after incorporation of
the Company. In return, the Company shall issue to each of the Partners four
hundred (400) shares of the Company's authorized but unissued and
nonassessable common stock, par value Yen 50,000 per share. The Company shall
have 3,200 shares of authorized common stock, par value Yen 50,000 per share.
(c) OMP and Rohto shall each contribute equal amounts of such additional
paid-in capital as agreed upon by the Partners and as provided for in the
Business Plan approved by the Company's Board of Directors. As used herein,
"Business Plan" shall mean a confidential business plan of the Company from
time to time established by the Company's Board of Directors, which business
plan shall include (i) cosmetic market and consumer market studies, (ii)
product launch strategies, (iii) financial summaries (which shall include
three-year sales forecasts and three-year profit and loss forecasts),
(iv) an overview of the structure and operations of the Company, or such
other contents as may be approved by the Company's Board of Directors. Except
as provided for herein, no Partner shall be required to contribute or to lend
any money or property to the Company, or be subject to assessments for
capital.
3. REPRESENTATIONS AND WARRANTIES OF ROHTO
Rohto hereby represents and warrants to OMP as follows:
(a) Rohto has been duly incorporated, and is a validly existing
corporation under the laws of Japan and has full power and authority to enter
into and perform this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by
Rohto and constitutes a valid and binding agreement of Rohto, enforceable
against Rohto in accordance with its terms.
(c) No consent, approval or authorization of or declaration or filing
with any governmental authority or other person or entity (each is a
"Person") on the part of Rohto is required in connection with the execution
or delivery of this Agreement or the consummation of the transactions
contemplated hereby other than as described in Section 14 hereof.
4. REPRESENTATIONS AND WARRANTIES OF OMP
OMP represents and warrants to Rohto as follows:
(a) OMP has been duly incorporated and is a validly existing corporation
in good standing under the laws of the State of California, and has full
power and authority to enter into and perform this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by
OMP and constitutes a valid and binding agreement of OMP, enforceable against
OMP in accordance with its terms.
(c) No consent, approval or authorization of or declaration or filing
with any Person on the part of OMP is required in connection with the
execution or delivery of this Agreement or the consummation of the
transactions contemplated hereby other than as described in Section 14 hereof.
5. LICENSING, MARKETING, AND DISTRBUTION OF THE PRODUCTS BY THE COMPANY
As soon as possible following the execution of this Agreement but prior
to the funding of the initial capital contributions as provided in Section
2(b) hereof, the Partners shall enter into the following agreements (the
"Ancillary Agreements"):
(a) Distribution Agreement
(b) Sales and Marketing Agreement
(c) Technical and Marketing Assistance Agreement
6. BOARD OF DIRECTORS; STATUTORY AUDITORS
(a) The Board of Directors of the Company shall be responsible for
establishing the overall policy and operating procedure with respect to the
business
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affairs of the Company.
(b) The total number of Directors comprising the Board of Directors
shall be six (6). OMP shall nominate three (3) Directors and Rohto shall
nominate three (3) Directors. A minimum of four (4) Directors shall be
required in order to establish a quorum. Except as otherwise required by
mandatory provisions of law and as otherwise provided herein, resolutions of
the Board of Directors shall be adopted only by the affirmative vote of at
least four (4) Directors present at a meeting duly called at which a quorum
is present. Any Director may attend a Board meeting by telephone conference
or video device (in each case to the extent permitted by applicable law).
Board meetings shall be held in Japan or such other place as the Directors
may designate in accordance with applicable law provided that the Board of
Directors shall meet no less frequently than once in each three calendar
months. Two of the initial Director nominees for OMP shall be ▇▇▇▇▇ ▇. ▇▇▇▇
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇. The initial Director nominees for Rohto shall be ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇.
(c) The number of Statutory Auditors shall be two (2). One Statutory
Auditor will be an individual nominated by OMP and the other will be an
individual nominated by Rohto.
(d) In case of a vacancy in the office of Director or Statutory Auditor,
the vacancy shall be filled by a person nominated by the Partner who
originally nominated the Director or Statutory Auditor who no longer holds
such office.
(e) At any annual or special meeting of shareholders or any meeting of
the Board of Directors called for such purpose, the Partners shall each vote
or cause to be voted all shares owned by it for the election of nominees
designated as Directors or Statutory Auditors in accordance with this Section
6 and otherwise as may be necessary to implement the provisions of this
Agreement.
(f) No change shall be made in the number and/or allocation of Directors
or Statutory Auditors as stated in this Section 6 or in the Articles of
Incorporation of the Company without the prior written consent of both
Partners.
(g) Notwithstanding the general provisions set forth above, in addition to
any special approval requirements under the Articles of Incorporation or under
law, each of the following corporate actions may be taken by the Company only
(x) in the case of actions required by law or the Articles of Incorporation to
be approved by the Company's shareholders, upon authorization by affirmative
vote of both OMP and Rohto as shareholders which actions include, without
limitation, (A) any merger or consolidation, whether or not the Company is the
surviving corporation; any sale, lease, exchange or other disposition of all or
substantially all of the assets of the Company; any acquisition of all or
substantially all of the capital stock or assets of any other entity; or the
liquidation or voluntary dissolution of the Company, (B) any sale, lease,
exchange or other disposition of substantial assets (except in the ordinary
course of business of the Company, (C) any amendment, alteration or repeal of
any provision of the Articles of Incorporation of the Company, and (D)
compensation for all Directors and Statutory Auditors of the Company, and (y)
in the case of any action other than those set forth in clause (x) above, upon
authorization by affirmative vote of at least one OMP Director and at least one
Rohto Director (which actions include, without limitation, (A) any capital
expenditure of Yen 5,000,000 or more; (B) the raising of additional equity
capital or the issuance or sale of any debt or equity securities, including any
shareholder loan or guaranty and the terms thereof, whether or not in
connection with a call for additional capital which is approved by the Board of
Directors as provided for in Section 2 hereof; (C) except as required under
Section 10 hereof, any declaration or payment of any dividend or other
distribution, directly or indirectly, on account of any shares of capital stock
of the Company, or any redemption, retirement,
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purchase or other acquisition, directly or indirectly, by the Company of any
such shares (or of any warrants, rights or options to acquire any such
shares); (D) the incurrence or guarantee (directly or indirectly) by the
Company with respect to any indebtedness for borrowed money in excess of Yen
5,000,000; (E) engagement in any business other than as set forth in Section
1 hereof and activities incidental thereto, either directly or through any
corporation or other entity in which the Company has, directly or indirectly,
an equity interest; (F) approval of the Business Plan (as provided for herein)
and the related operating budget for the Company, and any deviation in any
material respect from the Business Plan or budget as so approved; (G) the
authorization of execution of any contract or agreement (1) having a period
of performance greater than one year, (2) involving aggregate payments or
consideration in excess of Yen 1,000,000, (3) involving any license of
trademarks, patents, copyrights or other intellectual property rights of the
Company, or (4) between the Company and any officer, shareholder (including
any Partner) or Director of the Company (or their respective affiliates), and
any waiver or variance of any contract described in (1)-(4) of this clause
(G); or (H) compensation for all officers. To the extent permitted by
Japanese law, the foregoing approval requirements shall at all times also be
set forth in the Articles of Incorporation of the Company, unless amended as
set forth.
(h) The Company shall have two (2) Representative Directors, each of
whom shall be a Director. Rohto shall nominate one Representative Director,
and OMP shall nominate the other Representative Director. Rohto shall
initially nominate ▇▇▇▇▇ ▇▇▇▇▇▇ to be its Representative Director, and OMP
shall initially nominate ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ to be its Representative Director.
For the avoidance of doubt, each Representative Director will have full power
to represent the Company separately and they shall not be deemed as joint
representative directors.
7. MANAGEMENT OF THE COMPANY
(a) Management Committee
The Management Committee shall be responsible for the day-to-day
operations of the Company, which shall include, but not be limited to,
personnel matters (except such personnel matters as pertain to the President
and Chief Executive Officer ("CEO") and the Chief Financial Officer ("CFO")),
the marketing, selling and pricing of the Products, the development, sale and
distribution of new products and the preparation and submission of the
Business Plan to the Board of Directors. The initial Management Committee
shall consist of the President and CEO, one designee of OMP and one designee
of Rohto. OMP's initial representative on the Management Committee shall be
▇▇▇▇▇▇▇ ▇. ▇▇▇▇. Rohto's initial representative on the Management Committee
shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇.
(b) Officers
(1) The Chairman will be an individual to be nominated by Rohto with
OMP's prior written consent. Rohto shall initially nominate ▇▇▇▇▇ ▇▇▇▇▇▇ to
be Chairman.
(2) The Vice-Chairman will be an individual to be nominated by OMP
with Rohto's prior written consent. OMP shall initially nominate ▇▇▇▇▇▇▇ ▇.
▇▇▇▇ to be Vice Chairman.
(3) The President and CEO and CFO shall be officers selected and
approved by the Board of Directors. The Partners agree to immediately begin
a search for a candidate to serve as the President and CEO who is an
English speaking Japanese resident of Japan and who is experienced in
executive management and the marketing, sale and distribution of products
that are
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marketed and sold in a similar fashion as the Products are to be
marketed and sold. In the interim, the Partners agree to appoint ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ as the "Interim Project Manager" for a term of six months
beginning December 1, 1999, and ending May 31, 2000. The Company shall
pay ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ the amount of Yen 900,000 per month while in office.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have the same responsibility and authority as a
President and CEO until a President and CEO is hired by the Company.
(4) The other officers will be individuals to be nominated by Rohto
with OMP's prior written consent.
8. DISPOSITION OF COMMON STOCK
For a period of five (5) years following the incorporation of the
Company, neither Partner shall directly or indirectly sell, assign, transfer
or otherwise dispose of, or pledge or otherwise encumber, any shares of
common stock of the Company without the prior written consent of the other
Partner. After such five (5) year period, transfer of the Company's shares of
common stock will be subject to the approval of the Company's Board of
Directors and may then be transferred pursuant to the laws of Japan and the
Articles of Incorporation of the Company.
Notwithstanding anything herein contained to the contrary, a Partner may
transfer its shares in the Company and its rights and obligations under this
Agreement as part of a sale of all or substantially all of its assets, a
merger, consolidation or other business combination in the Partner whether or
not the Partner is the surviving entity.
9. ACCOUNTING; ACCESS TO INFORMATION
(a) The fiscal year of the Company shall be from the first day of April
of each year to the 31st day of March of the following year.
(b) The Company shall maintain its accounts and prepare its financial
statements (including, without limitation, a balance sheet, profit and loss
statement and statement of cash flows) in accordance with generally accepted
accounting principles in Japan, and shall cause its annual financial
statements to be audited by an internationally recognized independent
auditing firm approved by the Company's Board of Directors, and such
financial statements and the auditors' opinion to be delivered to each of the
Partners no later than sixty (60) days following the end of each fiscal year.
The Company also shall deliver to each Partner unaudited monthly and
quarterly financial statements within thirty days following the end of each
month or fiscal quarter, as the case may be, certified (in the case of
quarterly financial statements) by the Chief Financial Officer of the
Company. All financial statements shall be accurately and completely
translated into English prior to delivery to OMP, and shall be accompanied by
a reasonably detailed schedule that sets forth the differences between
Japanese generally accepted accounting principles and U.S. generally accepted
accounting principles as applied to such financial statements.
(c) Each of the Partners shall, during all business hours and at all
other times as reasonable, have access to the books and records of the
Company and to the legal, tax and auditing personnel of the Company, internal
and external; provided, however, that the cost and expense necessary for such
inspection shall be borne by the Partner making the inspection.
(d) The Company shall open a bank account with a Japanese bank approved by
the Company's Board of Directors. The authorized signatories for the Company's
5
bank account shall be any two of: (1) the designee of Rohto, (2) the designee
of OMP, and (3) the President and CEO for amounts in excess of Yen 1,000,000.
The President and CEO shall have authority to sign checks in amounts less
than Yen 1,000,000. Until a President and CEO is employed by the Company,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, acting as Interim Project Manager, shall have the same
check writing authority as the President and CEO.
10. DIVIDENDS
To the extent permitted by law, each Partner shall have the right (but
not the obligation) in respect of each of the Company's fiscal years after
the Company has repaid all bank borrowings, to cause the Company to declare
dividends of up to total maximum of seventy percent (70%) of the Company's
net income for each such fiscal year. To the extent such dividends are not so
declared in any such fiscal year, such amount not so declared but up to said
total maximum shall be carried forward for up to three (3) years and be
available for each of the Partner's right to cause the Company to declare
dividends. Each of the Partners agree to authorize and direct their
respective designees to the Board of Directors to take such actions,
including without limitation, to declare, authorize and approve for payment
the dividends required to be paid hereunder.
11. TERM OF THE AGREEMENT
If the term of the Company is terminated pursuant to Section 12, then
the business affairs of the Company shall be wound up and the assets
distributed equally to the Partners after the payment of all expenses and
liabilities, provided that all licenses and registrations for the Products
and all patents, trademarks, licenses and other intellectual property
contributed by or derived from OMP shall be distributed to OMP. Each of the
Partners agrees to authorize and direct their respective designees to the
Board of Directors, and shall each take such action, which shall include
without limitation the voting of their respective shares of the Company's
common stock in the manner required for the efficient and prompt winding up
of the Company's affairs, the distribution of assets and the dissolution of
the Company.
12. TERMINATION OF THE AGREEMENT
Notwithstanding any other provision herein contained to the contrary,
the Company shall, at the option of the non-defaulting Partner following
written notice to the defaulting Partner, terminate its business and dissolve
as provided for in Section 11 upon any of the following:
(a) The breach by one of the Partners of its obligation under this
Agreement if such breach is not cured within thirty (30) days after the
non-breaching Partner gives written notice of the breach to the breaching
Partner.
(b) The Company shall commence a voluntary case concerning itself under
the bankruptcy laws of Japan; an involuntary case is commenced under the
bankruptcy laws of Japan and such case is not dismissed within thirty (30)
days; a custodian, trustee or receiver is appointed or takes charge of all or
substantially all of the property and assets of the Company; the Company is
adjudicated insolvent or bankrupt; the Company makes a general assignment for
the benefit of creditors; the Company shall fail to pay, or shall state it is
unable to pay, or shall be unable to pay, its debts generally as they become
due; or any corporate action is taken by the Company for the purpose of
effecting any of the foregoing.
6
(c) A Partner shall commence a voluntary case concerning itself under
the bankruptcy laws of Japan or the United States; an involuntary case is
commenced under the bankruptcy laws of Japan or the United States and such
case is not dismissed within thirty (30) days; a custodian, trustee or
receiver is appointed or takes charge of all or substantially all of the
property and assets of a Partner; a Partner is adjudicated insolvent or
bankrupt; a Partner makes a general assignment for the benefit of creditors;
a Partner shall fail to pay, or shall state it is unable to pay, or shall be
unable to pay, its debts generally as they become due; or any corporate
action is taken by a Partner for the purpose of effecting any of the
foregoing.
(d) The Partners agree to terminate the business of the Company,
liquidate its assets and/or dissolve the Company.
After the termination of this Agreement, both Partners shall be released from
any obligation except Article 13, provided however, that any liability under
this Agreement that at the time of termination has already accrued to the
other Partner or that thereafter may accrue in respect of any act or omission
prior to such termination shall remain effect and not be released.
13. CONFIDENTIALITY
Each Partner shall hold and shall cause its respective representatives
to hold in confidence all confidential information made available to it or
its representatives by the other Partner, directly or through the Company,
and shall not pass such information on, wholly or partly, to third parties
without the prior written consent of the other Partner, unless such
information (i) becomes generally available to the public other than as a
result of a disclosure by such Partner or its representatives, (ii) becomes
available to such Partner from other sources not known by such Partner to be
bound by a confidentiality obligation, or (iii) is independently acquired by
such Partner as a result of work carried out by any employee or
representative of such Partner to whom no disclosure of such information has
been made.
14. GOVERNMENT FILINGS
(a) If required by applicable law, within fifteen (15) days following
the date of this Agreement, OMP will submit the required notifications under
the Foreign Exchange and Foreign Trade Control Law.
(b) If any Japanese withholding taxes are imposed on dividends payable
to OMP by the Company under Section 10, the Company shall withhold such
amounts, pay the same to the Japanese tax authority, and promptly furnish OMP
with appropriate documentation of the amounts so withheld as soon as
practicable. The Company shall cooperate with OMP to make any necessary
filings to utilize the lowest withholding rate available under any treaty
between Japan and the United States.
15. EXCLUSIVITY, NONCOMPETITION AND FIRST RIGHT OF REFUSAL
The Company shall constitute the sole entity through which the Partners
(and all of their affiliates) will engage in the sale and distribution of the
Products in Japan. Accordingly, during the term of this Agreement, each
Partner (including any of its affiliates) shall neither engage nor knowingly
cause a third party to engage (other than through the Company) in the sale or
distribution of any products in Japan that contain Kinetin, Trichloroacetic
Acid (TCA), Hydroquinone, Retin-A, and/or Phytic Acid (if contained over the
range specified in Japanese Cosmetic Approval Standard) as an ingredient (the
"Competing Products"). If either of the Partners wishes to market, sell or
distribute any products in Japan that are or could be considered a Competing
Product, then such Partner shall first offer the Company the right to market,
sell
7
and/or distribute such products in Japan at the same price and on the same
terms as offered to said Partner by the manufacturer or distributor of such
products. The Partner making the offer of first refusal shall provide samples
of the products; shall provide test, clinical and market data to the extent
available; and shall provide a detailed written summary of the products, the
manufacturer or distributor, and the price and terms offered to such Partner
by the manufacturer or distributor of the products. The Partner not making
such offer to the Company shall have the sole right on behalf of the Company
to accept or reject the offer of first refusal, provided that acceptance must
be in writing and made within sixty (60) days of receipt of the information
required to be furnished in connection with these rights of first refusal. As
used in this Agreement, an "affiliate" of any Person means any other Person
controlled by, controlling, or under common control with such Person. Without
limitation, a Person shall be deemed to control another Person if the
controlling Person owns 50% or more of the outstanding voting securities of
the controlled Person or possesses the power to direct or cause the direction
of the management or policies of the controlled Person, whether by securities
ownership, by contract or otherwise.
16. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of Japan.
17. DISPUTE RESOLUTION
All disputes between the Partners arising directly or indirectly out of
this Agreement (including, without limitation, the inability to establish
minimum annual sales targets from time to time) shall be settled by the
Partners amicably through their good faith discussions. In the event that any
such dispute cannot be resolved thereby, such dispute shall be finally
settled by arbitration in accordance with the rules then in effect of the
Japan Commercial Arbitration Association (Kokusai Shoji Chusai Kyokai) by
three arbitrators appointed in accordance with such rules. Any such
arbitration shall be held in Tokyo, Japan and shall be conducted in Japanese
(with English translation to the extent requested by OMP). The arbitration
award shall be final and binding upon the Partners, and judgment on such
award may be entered in any court having jurisdiction thereof. If any such
dispute is not susceptible of resolution by arbitration, the Partners shall
enter into good faith discussions (including but not limited to, requesting
any independent third party appraisal of the evaluation of the stocks and/or
assets of the Company) regarding either a buy-out of a Partner's stock or a
sale of all or substantially all of the Company's stock or assets. If such
discussions do not reach an agreement within a reasonable period, any Partner
may, upon notice to the other Partner, seek a dissolution of the Company and
ratable distribution of its assets to the Partners.
18. MISCELLANEOUS
(a) This Agreement may be amended only by a written instrument signed by
both Partners.
(b) This Agreement may not be assigned by either of the Partners except
with the prior written consent of the other Partner; provided, however, that
as provided in Section 8 hereof, this Agreement may be assigned to a
corporation or other entity which shall succeed to the business of a Partner
by merger, consolidation, or the transfer of all or substantially all of the
assets of such Partner.
(c) Any and all notices, requests, demands and other communications
8
required, when received, or otherwise contemplated to be made under this
Agreement shall be in writing and in English and shall be deemed to have been
duly given
(1) if delivered personally,
(2) if transmitted by facsimile,
(3) if sent by registered airmail, return receipt
requested, postage prepaid, or
(4) if by international courier service, on the second
business day following the date of deposit with such courier service, or
such earlier delivery date as may be confirmed to the sender by such
courier service.
All such notices, requests, demands and other communications shall be
addressed as follows:
(i) If to Rohto: Rohto Pharmaceutical Co., Ltd.
▇-▇-▇ ▇▇▇▇▇, ▇▇▇▇▇▇-▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
President and Chief Operating Officer
Facsimile: ▇▇-▇-▇▇▇▇-▇▇▇▇
with a copy to: Rohto Pharmaceutical Co., Ltd.
▇-▇-▇, ▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇-▇▇
▇▇▇▇▇, ▇▇▇-▇▇▇▇, ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Ph.D.
Director
Facsimile: ▇▇-▇-▇▇▇▇-▇▇▇▇
(ii) If to OMP: Obagi Medical Products, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President and Chief Executive Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Mandarin Partners, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Executive Vice President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or in each case to such other address or facsimile number as the party may
have furnished to the other party in writing pursuant to this Section
18(c).
(d) In the event of the invalidity of any part or provision of this
Agreement, such invalidity shall not affect the enforceability of any other
part or provision of this Agreement.
(e) No waiver by either of the Partners of any default in the
performance of or compliance with any provision herein shall be deemed to
be a waiver of the
9
performance and compliance as to any other provision, or as to such
provision in the future; nor shall any delay or omission of either of the
Partners to exercise any right hereunder in any manner impair the exercise
of any such right accruing to it thereafter. No remedy expressly granted
herein to either of the Partners shall be deemed to exclude any other
remedy which would otherwise be available.
(f) This Agreement, the Articles of Incorporation and the
transactions and the Ancillary Agreements contemplated hereby constitute
the entire agreement among the Partners with respect to the subject matter
hereof and shall supersede all prior understandings and agreements between
the Partners with respect to such subject matter. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
(g) Nothing herein express or implied, is intended to or shall
be construed to confer upon or give to any person, firm, corporation or
legal entity, other than the Partners hereto and their affiliates, any
interests, rights, remedies or other benefits with respect to or in
connection with any agreement or provision contained herein or
contemplated hereby.
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IN WITNESS WHEREOF, the Partners hereto have duly signed this Agreement as
of the day and year first above written.
OBAGI MEDICAL PRODUCTS, INC. ROHTO PHARMACEUTICAL CO., LTD
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- ----------------------------------
Title: Pres. & CEO Title: President
-------------------------- -------------------------------
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SCHEDULE A
OMP PRODUCTS TO BE SOLD AND DISTRIBUTED BY NEWCO IN JAPAN
A. Obagi/Kinetin Line:
1) Foaming Gel
2) Toner
3) Exfoderm (with phytic acid)
4) Product K (Kinetin with either phytic acid or glycolic acid)
5) Exfoliating Mask
6) Multiple Action (whitening agent with retinyl palmitate)
7) Sunblock (SPF to be determined)
8) Kinetin 0.05% in cream and lotion
9) Kinetin 0.05% with SPF in cream and lotion
B. Blue Peel Line:
1) Blue Peel Base
2) Blue Peel Cleanser
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