Exhibit 10.48
The
confidential portions of this exhibit have been filed separately
with the Securities and Exchange Commission pursuant to a
confidential treatment request in accordance with Rule 24b-2 of the
Securities and Exchange Act of 1934, as amended. REDACTED
PORTIONS OF THIS EXHIBIT ARE MARKED BY AN [##].
Amendment and Addendum
to
Know-How and Trademark License
Agreement
This Amendment and
Addendum to know-how and trademark license Agreement
(the
“Amendment” ) is entered into as of
December 4, 2008 (the “Amendment
Date” ) by and between, on the one hand,
OMP, Inc. , a
Delaware corporation ( “OMP” ); and, on
the other hand, Rohto
Pharmaceutical Co., LTD., a Japanese company having its
principal place of business at 1-8-1, Tatsumi-nishi, Ikuno-ku,
Osaka 544-8666, Japan (“ Rohto” ). All
capitalized terms used but not otherwise defined herein shall have
the meanings assigned under
the Know-How and Trademark License Agreement between OMP and Rohto
dated as of September 13, 2002 (the “Original
Agreement” and, collectively with, and as amended by,
this Amendment, the “Agreement”
).
Whereas,
pursuant to Section
14.6 of the Original Agreement, OMP and Rohto may amend
or modify the Original Agreement by written instrument executed by
both parties;
Whereas,
OMP and Rohto wish to set forth the
terms and conditions applicable to additional licenses and joint
development projects between the parties; and
Whereas
, OMP and Rohto desire to amend the
Original Agreement in certain other respects as it relates to
ongoing communications, expansion of the Territory, marketing plans
and to extension of the term 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 Defined
Terms.
(a)
“Term” as defined in Section 11.1 shall be
amended to read: “…this Agreement shall continue for a
term of [ 1* ] years from the Amendment Date and end on December 4,
2017.”
(b)
“Territory ” means the country of Japan;
provided, however, that the Territory may be expanded to include
other countries subject to a separate written agreement to be
developed between OMP and Rohto at a future date
.
(c) “
Licensed Products ” shall mean: (a) with respect
to products developed by Rohto prior to the date of this Amendment,
those skin care products listed on Exhibit A-1 that conform to the
Specifications (“ Prior Licensed Rohto Products
”), (b) with respect to products developed by Rohto after the
date of this Amendment, those skin products listed on Exhibit A-2
from time to time that conform to the Specifications to
be developed from time to time (“ Future Rohto Licensed
Products ”), (c) with respect to products developed
by OMP after the date of this Amendment, those skin care products
to be listed on Exhibit A-3 from time to time (excluding Elastin
based products covered by a separate agreement) that conform to the
Specifications to be developed from time to time (“ OMP
Developed Products ”); and (d) with respect to
products jointly developed by the parties from time to time after
the date of this Amendment, those skin
* Subject to confidential
treatment request
care products listed on Exhibit A-4 that conform
to the specifications jointly developed from time to time (“
Jointly Developed Products ”).
(d)
“Specifications” shall be amended to refer to
the specifications for Licensed Products set forth on Exhibits A-1,
A-2, A-3 or A-4, as applicable, and as may be revised and amended
from time to time.
(e) “ Channel ” shall mean
consumer sales and distribution channels in which Rohto is
currently engaged: specifically the Drug Stores and Variety Stores
Channel, including mail-order and internet sales activities that
support such Drug Stores and Variety Stores Channel, as well as the
Department Stores Channel, including mail-order and internet sales
activities that support such Department Stores Channel.
Nothwithstanding the foregoing, extension into the Department Store
Channel (and any other channel) and retention of rights to sell and
distribute into such channels are conditioned up completion of a
joint product/channel development plan and the achievement of the
goals and objectives set forth in such plan as more fully described
in Section 2(e) below. Unless agreed to in writing by
both parties separately, the Channel shall not include physician,
medical spas, aesthetic spas and salon, or such similar outlets
wherein products are sold in combination with or in addition to,
aesthetic procedures or services and/or medical
procedures.
2.
Section
Amendments.
(a)
Section 2.1 - License to
Know-How. The
term Licensed Products in Section 2.1 of the Original Agreement
shall be amended to say “the Prior Licensed Rohto Products,
the Future Rohto Licensed Products and the Jointly Developed
Pr
