EXHIBIT 10.16
EMPLOYMENT AGREEMENT
June 9, 1999
Xxxxx Xxxxx, M.S., R.A.C.
00000 Xxxxxxxx Xxxxx
Xxxxxxx Xxxxxx, XX 00000
Dear Xxxxx:
I am pleased to offer you the position of Vice President of Regulatory
Affairs and Quality Assurance of Obagi Medical Products, Inc. ("OMP" or the
"Company") effective July 1, 1999 on the following terms:
A. DUTIES
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 President and Chief Executive Officer of the Company.
B. COMPENSATION
SALARY: Your salary shall be $145,000 per annum subject to annual cost of
living increases based on the Consumer Price Index for All Items, All Urban
Consumers for the Los Angeles-Anaheim-Riverside, CA area or such greater
increase as may be approved by the Company's Board of Directors in its
discretion. Your salary shall be paid semi-monthly, subject to standard
payroll deductions and withholdings.
STOCK OPTION GRANT: The Company intends to grant you 10,000 stock options to
purchase common stock of the Company under its Stock Option Plan. These
options will have an exercise price of $1.00 per share. All options will be
subject to the requirements of the Company's Stock Option Plan, applicable
rules under the Internal Revenue Code, applicable accounting policies and
securities laws.
BONUS: You shall be entitled to an annual bonus based on the achievement of
certain benchmarks as set forth on Exhibit "A" attached hereto. You will be
eligible to earn a bonus of 25% of base salary, as adjusted for performance
in accordance with the benchmarks set forth in Exhibit "A." No bonus is
payable unless you are employed by the Company on December 31 of the
applicable year. All bonuses will be subject to the legal deductions and
withholdings, etc. as customary.
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BENEFITS: During the first ninety days of your employment, you will are not
eligible for certain benefits, such as vacation, holiday pay, or medical and
dental benefits. Thereafter, you will be eligible for three weeks vacation
annually and sick leave according to standard Company. You will also receive
all other benefits the Company provides to its most senior employees (e.g.,
health and dental insurance coverage). You will be eligible to participate
in the Company's 401k plan after six months.
C. EXPENSES
The Company shall reimburse you for all other reasonable, ordinary and
necessary expenses incurred in the performance of your duties including all
licenses and membership fees to agencies and associations (such reimbursement
shall be conditioned upon the submission of reasonable detailed receipts
and/or invoices substantiating such expenses).
D. TERMINATION
Either you or the Company may terminate your employment with our without
cause, at any time, for any reason whatsoever without advance notice. This
at-will employment relationship cannot be changed except by a writing signed
by the Chairman of the Board of the Company.
If the Company terminates your employment without cause after the first
ninety days but during the first year of your employment, you will receive as
your sole severance, your base salary for three (3) months payable
semi-monthly, subject to standard payroll deductions and withholdings.
These payments shall cease immediately if you violate any provision of this
agreement, including the provisions of Section F. If the Company exercises
this right to terminate your employment without cause, no compensation will be
owed to you other than the severance payment referred to in the previous
sentence.
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, all compensation and benefits shall cease immediately,
and you will receive no severance benefits. 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; (vi) intentional damage to
Company property; (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. In the case of
sections iii, iv, and v, Company must provide Employee with written notice of
their intent to terminate and Employee shall be given 30 days to correct the
"cause" in order to avoid termination. The
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determination as to the adequacy of such "corrective" action on the part of
the employee shall be subject to the good faith and reasonable determination
of the Board of Directors of the Company.
E. POLICIES AND PROCEDURES
You will be expected to abide by all Company policies and procedures.
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.
F. CONFIDENTIALITY/NON-COMPETITION
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 Company, including, but not
limited to, information with respect to Company as follows: the identity,
lists, and/or descriptions of any customers of 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 Company during the course of your
employment (ii) after receipt of the prior written consent of Company, (iii)
as required by any court or governmental regulatory agency having competent
jurisdiction over Company, or (iv) information made public by 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
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:
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a. Whether for compensation or otherwise, directly or indirectly
engage in the Company's business, or any part thereof, or assist any other
person in such person's conduct of the Company's business, or any part
thereof, whether as a director, officer, employee, consultant, adviser,
independent contractor or otherwise;
b. Hold a legal or beneficial interest in any person which is
engaged in the Company's business or any part thereof, whether such interest
is as an owner, investor, partner, creditor (other than as a trade creditor
in the ordinary course of business), joint venture or otherwise;
c. Solicit, divert or attempt to divert from the Company or any
person deriving title to the goodwill of the Company (a "Transferee") any
business constituting, or any customer of, any part of the Company's
business then conducted by the Company or such Transferee; or
d. 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 this 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 work an undue hardship on you.
However, in the event your employment is terminated by the Company
without cause, you shall be permitted to do the following as of the first
anniversary of the date of such termination:
a. Whether for compensation or otherwise, directly or indirectly
engage in the Company's business, or any part thereof, or assist any other
person in such person's conduct of the Company's business, or any part
thereof, whether as a director, officer, employee consultant, adviser,
independent contractor or otherwise; or
b. Hold a legal or beneficial interest in any person which is
engaged in the Company's business or any part thereof, whether such interest
is as an owner, investor, partner, creditor (other than as a trade creditor
in the ordinary course of business), joint venture or otherwise; or
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G. MISCELLANEOUS
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 a 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.
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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 other 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.
We look forward to your joining the Company and to a successful and
enjoyable working relationship.
Sincerely,
Obagi Medical Products, Inc.
By /s/ Xxxxxxx X. Xxxx
-----------------------
Xxxxxxx X. Xxxx, Chief Executive Officer 6/16/99
Accepted By:
/s/ Xxxxx Xxxxx
-------------------------
Xxxxx Xxxxx, M.S., R.A.C.
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Xxxxx Xxxxx, M.S., R.A.C.
00000 Xxxxxxxx Xxxxx
Xxxxxxx Xxxxxx, XX 00000
Dear Xxxxx:
Please accept this letter as an addendum to the Employment Agreement letter
dated June 9, 1999 that you have from Obagi Medical Products, Inc.
In addition to the contents of the 6/9/99 letter, I am submitting the
following to you for your consideration:
A. Your start date of employ for Obagi Medical Products will be July 19,
1999. There is the possibility that I would ask you to review and comment
on particular documents and issues prior to this date, but only after
you have agreed to the employment document.
B. Your health benefit would be available to you on August 1, 1999.
C. You will be a full time employee of Obagi Medical Products and will only
be allowed certain consulting assigments with your former employer on
a short term basis (no longer than 6 months). These assigments can only be
in regard to projects completely unrelated to Obagi Medical Products
businesses, including all of dermatology.
D. It will be neccessary that you be in our Long Beach Headquarters office
or our disbursement center in the Southern California area (currently in
Glendora, but will be moving) no less than three full working days per
week. As the business dictates, I will reserve the right to ask you to be
on site as much as is necessary, up to the full five working days per week.
If your responsibilities for a next working day would allow you to
handle the tasks from your office at home, I will approve the maximum of
2 days a week (not to be consecutive) out of the office and pay expenses
for phone and dial-up networking which would be made available to you
through Obagi Medical Products, Inc.
Xxxxx, as I have discussed with you, the V.P. Regulatory Affairs position at
Obagi Medical Products, Inc. is critical to our short and long term success.
There is much work to be done in completing and documenting SOP's, maintaining
federal and states registration, being a critical part of the product
development team, and helping us transition in to prescription and other
medical products. I look forward to working directly with you on these any many
other responsibilities.
Please initial this letter and return to me along with a signed copy of the
6/9/99 Employment Agreement.
Sincere regards,
/s/ Xxxxxxx X. Xxxx
-----------------------
Xxxxxxx X. Xxxx, X.Xx.
President and CEO
Obagi Medical Products, Inc.
