AmendmentNo. 2 to Distribution Agreement

 

 

This Amendment No. 2 to Distribution Agreement (the “Amendment”) is entered into as of September 26, 2009 by and between OMP, Inc., a Delaware corporation (“OMP”), and Cellogique Corporation, a California corporation (“Distributor”).  All capitalized terms used but not otherwise defined herein shall have the meanings assigned under the Distribution Agreement between OMP and Distributor dated as of November 10, 2005, as amended October 23, 2006 (the “Original Agreement” and, collectively with, and as further amended by, this Amendment, the “Agreement”).

 

Whereas, Distributor is the authorized distributor of certain OMP products in the Territory (as defined in the Original Agreement); and

 

Whereas, each of OMP and Distributor wish to amend the pricing, payment and certain other terms of the Original Agreement.

 

Now, Therefore, in consideration of the foregoing recitals and the mutual promises hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1. Amendment To Forecast Requirements.  Section 4.5 of the Original Agreement shall be amended to read in full as follows:

 

 

(b) Exhibit B to the Original Agreement shall be amended and replaced in full by Exhibit B to this Amendment.

 

2. Amendment to Distributor Expense Provision.  Section 4.8 of the Original Agreement shall be amended to read in full as follows:

 

“4.8  Distributor Expenses.  Except as otherwise provided in Exhibit A hereto, Distributor assumes full responsibility for all of its own costs and expenses incurred in carrying out its obligations under this Agreement, including but not limited to all rents, salaries, commissions, advertising, translations of documents and materials, demonstrations, travel and accommodations for the employees, agents, representatives or other personnel of Distributor.”

 

3. Amendment To Required Periodic Reviews.

 

(a) Section 4.10 of the Original Agreement shall be amended to read in full as follows:

 

“4.10 Bi-Quarterly Reviews and Reports.  Distributor and OMP shall participate in at least two (2) meetings each calendar quarter to discuss (a): any deviations from the forecasts for that quarter previously provided to OMP pursuant to Section 4.5 of the Agreement of which Distributor has become aware, and (b) plans for any marketing, sales, advertising campaigns, training events or other promotional activities planned for that quarter as well as any future quarters. Such meetings shall occur within the first two weeks of each quarter and in the middle of each quarter, and may be conducted in person or via telephone conference or other communications equipment by means of which all persons participating in the meeting can hear each other. Distributor shall also provide OMP with reports of its activities, competitor activities, other information regarding the Products and the markets for the Products in the Territory, business plans for distribution of the Products, and sales achievements and objectives in such detail and with such frequency as OMP and Distributor shall mutually agree.”

 

(b) Section 5.4 of the Original Agreement shall be amended to read in full as follows:

 

“5.4  Bi-Quarterly Review. OMP agrees to participate with Distributor in the bi-quarterly reviews to be conducted pursuant to Section 4.10 of this Agreement.”

 

4. Amendment to Pricing Terms.

 

(a) Section 6.7 of the Original Agreement shall be amended to read in full as follows:

 

“6.7 Price Changes; Notification.  Prices offered to Distributor shall be as set forth on the amended Exhibit A hereto. For the two year period commencing on the date of the Amendment and ending on the second anniversary of such date (the “Initial Period”), OMP will not increase the Prices set forth on Exhibit A. Thereafter, OMP may decrease the prices in Exhibit A at any time, in its sole discretion. Any increase in Prices occurring after the Initial Period shall be limited to one increase per year of not more than a [###]* percent ([###]*) annual increase over the then prevailing Prices; provided, however, that such limit shall not apply upon mutual agreement of the Parties if a greater increase is required as a result of increases in OMP’s manufacturing costs or changes in market conditions. OMP shall give Distributor written notice of any proposed increase to the Prices at least [###]* in advance of such increase.”

 

(b) The last sentence of Section 7.1 of the Original Agreement shall be amended to read in full as follows:

 

“Subject to the price change limitations contained in Section 6 hereof and any other provisions thereof, OMP may change the Prices in Exhibit A at any time.”

 

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5. Amendment To Payment Terms.   The first sentence of Section 7.2 of the Original Agreement shall be amended to read in full as follows:

 

“7.2 Payment Terms.  OMP shall extend credit, and full payment shall be due [###]* days from the date of the OMP invoice.

 

6. Miscellaneous.  Except as specifically amended by this Amendment, the terms and conditions of the Original Agreement shall remain in full force and effect.  This Amendment may be executed in counterparts, each of which shall be deemed an original document, and all of which, together with this writing, shall be deemed one instrument.

 

 

[SIGNATURES APPEAR FOLLOWING PAGE]

 

 

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In Witness Whereof, the Parties hereto have executed this Amendment in duplicate originals by their duly authorized officers or representatives.

 

OMP, Inc.

Cellogique Corporation

 

 

 

 

 

OMP skin care products subject to this Distribution Agreement include:

 

Blue Peel

CLENZIderm

ELASTIderm

Nu-Derm

Obagi-C Rx

Professional C

Rosaclear

Tretinoin

 

The Territory of Distributor shall be the country(ies) of Syria, Egypt, Lebanon, Jordan, Saudi Arabia, United Arab Emirates, Bahrain, Kuwait, Iraq, Oman, Yemen, Libya, Tunisia, Morocco, Turkey, Cypress, Iran, Sudan, Algeria, Qatar, and Israel, including, without limitation, any territories and possessions of any of the foregoing countries, and any other geographic area designated by OMP and agreed to by Distributor for the exercise of Distributor’s rights and obligations in the Agreement.

 

Obagi Product		Cellogique Pricing
Nu-Derm Products
Gentle Cleanser			[###	]*
Foaming Gel			[###	]*
Toner			[###	]*
Clear			[###	]*
ClearFx			[###	]*
Exfoderm			[###	]*
Exfoderm Forte			[###	]*

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Obagi Product		Cellogique Pricing
Nu-Derm Products (cont.)
Blender			[###	]*
BlendFx			[###	]*
Sunfader			[###	]*
Healthy Skin Protection			[###	]*
Physical UV Block SPF 32			[###	]*
Tolereen			[###	]*
Comfort Gel			[###	]*
Action			[###	]*
Eye Cream			[###	]*
Travel Set (Normal to Oily)			[###	]*
Travel Set (Normal to Dry)			[###	]*
Starter Set (Normal to Oily)			[###	]*
Starter Set (Normal to Dry)			[###	]*
Conditioning Control Kit
C & E Non-Surgical (Travel Size)			[###	]*
C & E Surgical (Travel Size)			[###	]*
C & E Non-Surgical (Full Size)			[###	]*
C & E Surgical (Full Size)			[###	]*
Obagi CRx
Cleansing Gel			[###	]*
Clarifying Serum			[###	]*
Exfoliating Day Lotion			[###	]*
Therapy Night Cream			[###	]*
Sun Guard SPF 30			[###	]*
CRX Starter Set			[###	]*
Professional-C
Professional-C 5%			[###	]*
Professional-C 10%			[###	]*
Professional-C 15%			[###	]*
Professional-C 20%			[###	]*
Elastiderm
Decolletage			[###	]*
Skin Lightening Complex			[###	]*
Wrinkle Reducing Lotion			[###	]*
Elastiderm Cream			[###	]*
Elastiderm Gel			[###	]*
Clenziderm
Starter Set (Normal to Dry)			[###	]*
Cream Cleanser			[###	]*

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Obagi Product		Cellogique Pricing
Clenziderm (cont.)
Therapeutic Lotion			[###	]*
Therapeutic Moisturizer			[###	]*
Starter Set (Normal to Oily)			[###	]*
Daily Care Foaming Cleanser			[###	]*
Pore Therapy			[###	]*
Serum Gel			[###	]*
Blue Peel
Blue Peel Kit,			[###	]*
Cleanser			[###	]*
Rosaclear System
Gentle Cleanser			[###	]*
Hydrating Complexion Corrector			[###	]*
Skin Balancing Sun Protection			[###	]*
Tretinoin
Tretinoin Cream .025% (20 gm)			[###	]*
Tretinoin Cream .05% (20 gm)			[###	]*
Tretinoin Cream .1% (20 gm)			[###	]*
Tretinoin Gel .01 (15 gm)			[###	]*
Tretinoin Gel .025% (15 gm)			[###	]*

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QUARTER 1

QUARTER 2

QUARTER 3

QUARTER 4

Product

M 1

M2

M3

Total

M1

M2

M3

Total

M1

M2

M3

Total

M1

M2

M3

Total

Nu-Derm

Gentle Cleanser

Foaming Gel

Toner

Clear

ClearFx

Exfoderm

Exfoderm Forte

Blender

BlendFx

Sunfader

Healthy Skin Protection

Physical UV Block SPF 32

Tolereen

Comfort Gel

Action

Eye Cream

Travel Set (Normal to Oily)

Travel Set (Normal to Dry)