EXHIBIT 10.23
[OMP Letterhead]
[Date]
Xx. Xxxxx Xxxx
PMB 000
000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000-0000
Dear Xxxxx:
This letter summarizes our mutual agreement with respect to consulting
services to be provided to Obagi Medical Products, Inc. ("OMP" or the
"Company") by you ("Consultant") in connection with OMP's business.
1. SCOPE OF WORK:
Consultant will perform services with respect to OMP's business strategy and
general corporate matters, as may be requested by the CEO or the Board of
Directors of the Company at such times as are mutually agreed upon between
the Company and Consultant, provided, however, Consultant's obligation
hereunder shall not exceed 80 hours per month determined on an average basis.
2. CHARGES:
The Company will pay Consultant $17,500 for each full or partial month for
services rendered to the Company. Any out-of-pocket expenses incurred by
Consultant with the Company's prior approval will be reimbursed as incurred
in addition to the above.
3. INDEPENDENT CONTRACTOR STATUS:
It is understood that Consultant will function as an independent contractor.
No employment relationship is intended or shall be construed to exist between
OMP and Consultant, nor is Consultant entitled to participate in any OMP
pension or employee benefit plans. The Company will comply with all
applicable laws pertaining to the employment, insurance, and taxation of its
employees, if any, who will perform work for you.
4. NONDISCLOSURE OF CONFIDENTIAL INFORMATION:
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Except as required in the conduct of the Company's business or as expressly
authorized in writing on behalf of the Company, Consultant shall not use or
disclose, directly or indirectly, any nonpublic confidential information or
trade secrets during the period of Consultant's engagement with the Company
and for a period of two (2) years thereafter. This prohibition does not apply
to confidential information after it has become generally known to the public
or within the industry in which the Company conducts its business. This
prohibition also does not prohibit Consultant's use of general skills and
know-how acquired during and prior to this engagement by the Company, as long
as such use does not involve the use or disclosure of the Company's
confidential information or trade secrets.
5. INDEMNITY:
OMP agrees to hold Consultant harmless and fully indemnify Consultant with
respect to any loss or liability, including consultants cost of defense
incurred in connection with this engagement, unless such loss or liability
arises out of Consultant's willful misconduct. Consultant shall have no
liability to OMP in connection with this engagement, except for willful
misconduct. It is agreed that in the event of any litigation arising from
this engagement, OMP will hold Consultant harmless with respect to the costs
of such litigation and with respect to any loss or liability incurred in
connection with such litigation except to the extent that such cost, loss or
liability arises out of Consultant's willful misconduct. Provided OMP first
acknowledges in writing to Consultant that it is obligated to indemnify
Consultant, OMP shall have the right to assume legal management and control
over any matter for which indemnity is asserted or claimed, provided that
Consultant may at Consultant's own expense participate in such defense.
6. TERM:
The services contemplated by this agreement will commence upon the Company
completing a public offering of its common stock pursuant to an effective
registration statement under the Securities Act of 1933, and continue for an
initial period of one year, after which the term shall automatically be
renewed for a like term, provided that after the initial term that the
agreement may be terminated by either party upon 60 days' prior notice.
7. GENERAL PROVISIONS:
A. NOTICES. Any and all notices, consents, documents or
communications provided for in this Agreement shall be given in writing and
shall be personally delivered, mailed by registered or certified mail (return
receipt requested) or sent by courier, confirmed by receipt, and addressed as
follows (or to such other address as the addressed party may have substituted
by notice pursuant to this Section 7):
(a) If to the Company:
Obagi Medical Products, Inc.
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000 Xxxxxx Xxxxx, 0xx Xxxxx
Xxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, President
(b) If to Consultant:
At Consultant's home address kept on file at the
Company's office.
Such notice, consent, document or communication shall be deemed given upon
personal delivery or receipt at the address of the party stated above or at
any other address specified by such party to the other party in writing,
except that if delivery is refused or cannot be made for any reason, then
such notice shall be deemed given on the third day after it is sent.
B. ENTIRE AGREEMENT. This Agreement contains the entire
understanding and the full and complete agreement of the parties and
supersedes and replaces any prior understandings and agreements among the
parties, with respect to the subject matter hereof.
C. SEVERABILITY. If any court of competent jurisdiction determines
that any covenant or provision of this Agreement is invalid or unenforceable,
then such invalidity or unenforceability shall have no effect on the other
covenants or provisions hereof, which shall remain valid, binding and
enforceable and in full force and effect, and such invalid or unenforceable
covenant or provision shall be construed in a manner so as to give the
maximum valid and enforceable effect to the intent of the parties expressed
therein.
D. ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement, or the breach hereof, shall be settled by a single
arbitrator in arbitration conducted in Long Beach, California, in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The arbitrator's decision
shall be final and nonappealable. Each party shall be entitled to discovery
exclusively by the following means: (i) request for admission, (ii) request
for production of documents, and (iii) depositions of no more than four
(4) individuals. All discovery shall be completed, and the arbitration
hearing shall commence, within sixty (60) days after the appointment of the
arbitrator. The hearing will be completed and an award will be rendered
within fourteen (14) days of the commencement of the hearing. The arbitrator
shall have the authority to settle such controversy or claim by finding that
a party should be enjoined from certain actions or be compelled to undertake
certain actions, and in such event such court may enter an order enjoining
and/or compelling such actions as found by that arbitrator. The arbitrator
shall make a determination regarding which party's legal position in any such
controversy or claim is the more substantially correct (the "Prevailing
Party") and the arbitrator shall require the other party to pay the legal and
other professional fees and costs incurred by the Prevailing Party in
connection with such arbitration proceeding and any necessary court action.
However, notwithstanding the foregoing, the parties expressly agree that a
court of
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competent jurisdiction may enter a temporary restraining order or an order
enjoining a breach of this Agreement pending a final award or further order
by the arbitrator. Such remedy, however, shall be cumulative and
nonexclusive, and shall be in addition to any other remedy to which the
parties may be entitled.
X. XXXXXX OF BREACH. The waiver by either party of the breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by either party.
F. GOVERNING LAW; CONSTRUCTION. This Agreement shall be governed by
the internal laws of the State of California.
Obagi Medical Products, Inc. Consultant
By:________________________ ________________________
Xxxxxxx X. Xxxx, X.Xx. Xxxxx Xxxx
President & CEO
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