Document

CERTAIN IDENTIFIED INFORMATION HAS BEEN OMITTED FROM THIS DOCUMENT BECAUSE IT IS NOT MATERIAL AND (I) WOULD BE COMPETITIVELY HARMFUL TO THE REGISTRANT IF PUBLICLY DISCLOSED OR (II) IS INFORMATION THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL. SUCH INFORMATION HAS BEEN MARKED WITH “[***]” TO INDICATE WHERE OMISSIONS HAVE BEEN MADE.
AMENDMENT TO DISTRIBUTION AGREEMENT
This Amendment (this “Amendment”) to the Existing Agreement (as hereinafter defined), is made by and between ZO Skin Health, Inc., a California corporation, having its principal place of business at 9685 Research Drive, Irvine, CA 92618 (“ZO SKIN HEALTH”), and Cutera, Inc., a Delaware corporation, having its principal place of business at 3240 Bayshore Blvd., Brisbane, CA 94005 (“Distributor,” and together with ZO SKIN HEALTH, the “Parties,” and each, a “Party”), effective as of January 1, 2022 (“Amendment Effective Date”).


WHEREAS, the Parties have entered into a Distribution Agreement, dated August 5, 2013 (the “Agreement”), as amended by an amendment effective August 21, 2013 (the “August 2013 Amendment”), an amendment effective January 25, 2021 (the “January 2021 Amendment”), and an amendment effective June 14, 2021 (the “June 2021 Amendment”).  The Agreement as amended by the August 2013 Amendment, the January 2021 Amendment and the June 2021 Amendment are collectively referred to herein as the “Existing Agreement”.


WHEREAS, the Parties hereto desire to amend the Existing Agreement on the terms and subject to the conditions set forth herein.


NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.Definitions.  Capitalized terms used and not defined in this Amendment have the respective meanings assigned to them in the Existing Agreement.
2.Amendments to the Existing Agreement.  As of the Amendment Effective Date, the Existing Agreement is hereby amended and modified as follows:
(a)Section 4.1. of the Existing Agreement is hereby modified by adding the following as Section 4.4(e):
“(e) 2022 Minimum Sales Requirement. For calendar year 2022, Distributor must achieve in-Territory sales of Products and Related Products of at least XXX% of Distributor’s actual in-Territory sales of Products and Related Products for the 2021 calendar year (the “2022 Minimum Sales Requirement”). Should Distributor fail to achieve the 2022 Minimum Sales Requirement, the Parties shall follow the procedures set forth in Section 4.1(c) of the Existing Agreement as if Distributor failed to achieve a Minimum Purchase Requirement, and the Parties shall have the same rights and obligations as set forth therein in connection with such failure to achieve the 2022 Minimum Sales Requirement.” 
(b)Section 4.4. of the Existing Agreement is hereby deleted in its entirety and replaced with the following: 
“4.4.    Business Plan and Reporting.  








(a)Business Plan. By March 1, 2022, Distributor shall provide to ZO SKIN HEALTH a business plan (“Business Plan”) for the promotion, marketing, distribution and sale of Products and Related Products in the Territory during the calendar year of this Amendment.  A Business Plan for each subsequent year shall be provided to ZO by October 1st of the preceding year. The Business Plan shall include, at a minimum, those items set forth in Exhibit E, which may be modified unilaterally by ZO SKIN HEALTH upon written notice to Distributor.
(b)Reporting. Not later than the tenth business day of each calendar month, Distributor shall provide ZO SKIN HEALTH with updated in-market activity containing sales by account and sales by Product/SKU data for the prior calendar month. Following the end of each calendar year during the term of this Agreement, but no later than February 15th of the following year, Distributor shall send to ZO SKIN HEALTH a report containing sell in and sell through data by country, to be approved by ZO SKIN HEALTH.”
(c)Section 4.8. of the Existing Agreement is hereby deleted in its entirety and replaced with the following: 
“4.8.     Quarterly Notices, Reports and Forecasts.  Distributor shall provide ZO SKIN HEALTH with at least three (3) months’ prior notice of all in-market Product and Related Product campaigns and shall provide ZO SKIN HEALTH with such reports of its other activities, competitor activities, and other information regarding the Products and Related Products and the markets for them in the Territory in such detail and with such frequency as ZO SKIN HEALTH shall reasonably require from time to time. In order to help ZO SKIN HEALTH provide inventory on a timely and consistent basis to Distributor, Distributor agrees to provide to ZO SKIN HEALTH on a quarterly basis, a binding three (3) month rolling forward minimum unit-based shipping forecast, as well as an estimated twelve (12) month rolling forecast of Distributor’s projected purchase orders on the form attached hereto as Exhibit B, which form, including the information to be contained therein, may be amended by ZO from time to time. Distributor’s provision of the above-mentioned estimated forecast shall not be interpreted as a commitment from Distributor to buy any Products or Related Products in excess of Distributor’s Minimum Purchase Requirement, unless otherwise agreed to in writing by the Parties; provided, that, ZO may refuse to ship Products to Distributor, in ZO’s sole discretion, in the event they exceed any forecast in order to ensure availability of Products to other territories, including the United States.” 
(d)Section 4.10. of the Existing Agreement is hereby deleted in its entirety and replaced with the following: 
“4.10.    Free Goods and Discounts.  During the term of this Agreement, ZO SKIN HEALTH will provide to Distributor: (a) XXX% of Net Sales worth as Free Goods and Related Products and collaterals; and (b) a XXX% discount on the Distributor Purchase Prices of Products and Related Products set forth in Exhibit A-1. Free Goods allowances and discounts will be calculated on each order and shall not roll-over from one order to the next, or form one year to the next.
In addition to the foregoing, for calendar year 2022 only, ZO SKIN HEALTH will provide Distributor with a one-time, incremental discount in the aggregate of $XXX, which shall be calculated as an incremental XXX% discount on Distributor’s first $XXX of purchases made in 2022 for ZO SKIN HEALTH Products and Related Products.”
(e)Exhibit A of the Existing Agreement is hereby deleted in its entirety and replaced with Exhibit A as attached hereto.
3.Date of Effectiveness; Limited Effect.  This Amendment will become effective as of the Amendment Effective Date. Except as expressly provided in this Amendment, all of the terms and provisions of the Existing Agreement are and will remain in full force and effect and are hereby ratified and confirmed by the Parties. Without limiting the generality of the foregoing, the amendments contained 








herein will not be construed as an amendment to or waiver of any other provision of the Existing Agreement or as a waiver of or consent to any further or future action on the part of either Party that would require the waiver or consent of the other Party. On and after the Amendment Effective Date, each reference in the Existing Agreement to “this Agreement,” “the Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference to the Existing Agreement in any other agreements, documents, or instruments executed and delivered pursuant to, or in connection with, the Existing Agreement, will mean and be a reference to the Existing Agreement as amended by this Amendment. 
4.Miscellaneous.
(a)This Amendment is governed by and construed in accordance with, the laws of the State of California, without regard to the conflict of laws provisions of such State.
(b)This Amendment shall inure to the benefit of and be binding upon each of the Parties and each of their respective permitted successors and permitted assigns.
(c)The headings in this Amendment are for reference only and do not affect the interpretation of this Amendment.
(d)This Amendment may be executed in counterparts, each of which is deemed an original, but all of which constitute one and the same agreement. Delivery of an executed counterpart of this Amendment electronically or by facsimile shall be effective as delivery of an original executed counterpart of this Amendment.
(e)This Amendment constitutes the sole and entire agreement between the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.


[REMAINDER OF THIS SECTION SHALL REMAIN BLANK]










IN WITNESS WHEREOF, the Parties have executed this Amendment on the date first written above.
						
		



ZO SKIN HEALTH, INC.

		

		



CUTERA, INC.

		















EXHIBIT A


PRODUCTS, TERRITORY, MINIMUMS


A.Products. Attached hereto as Exhibit A-1 shall be a list of the ZO Skin Health products subject to this Distribution Agreement. This product list is non-exhaustive and is subject to modification and change at the sole discretion of ZO at any time pursuant to the terms of this Agreement; further, travel size versions of the foregoing may be available at pricing to be provided by ZO from time to time. Additionally, pricing specified in Exhibit A-1 will be then current pricing at the time the list is provided to Distributor. Pricing is subject to change at ZO’s sole discretion pursuant to the terms of this Agreement. 


B.Territory. The territory shall be Japan and any other territory designated by ZO in writing and agreed to by distributor for the exercise of Distributor’s rights and obligations in the Distributor Agreement.


C.Distributor Minimum Purchase Requirements. Distributor Minimum Purchase Requirements of Products within the Territory shall be:  


						
	Year	Minimum Purchase Requirement
	2021	$XXX

	2022	$XXX

	2023 and beyond	$XXX





ZO’s remedies for Distributor’s failure to meet the Minimum Purchase Requirements of Products and Related Products are set forth in Section 4.1 of this Agreement. The above dollar amounts refer to United States Currency.














EXHIBIT A-1
PRODUCT LIST


																		
	ITEM NO.	PRODUCT DESCRIPTION	SIZE	Suggested Retail Price	Suggested Price to Customers	DISTRIBUTOR PRICE
	GETTING SKIN READY®	 	 	 	 
	962000	Exfoliating Cleanser Normal to Oily
	200 mL / 6.7 Fl. Oz.	$XXX
	$XXX
	$XXX

	965000	Hydrating Cleanser Normal to Dry
	200 mL / 6.7 Fl. Oz.
	$XXX
	$XXX
	$XXX

	900300	Gentle Cleanser All Skin Types 
	200 mL / 6.7 Fl. Oz.	$XXX
	$XXX
	$XXX

	900400	Exfoliating Polish	65 g / 2.3 Oz.	$XXX
	$XXX
	$XXX

	900500	Dual Action Scrub	116 g / 4 Oz	$XXX
	$XXX
	$XXX

	928000	Complexion Renewal Pads	60 Pads	$XXX
	$XXX
	$XXX

	900800	Oil Control Pads	60 Pads	$XXX
	$XXX
	$XXX

	920500	Calming Toner pH Balancer
	180 mL / 6 Fl. Oz.	$XXX
	$XXX
	$XXX

	PREVENT + CORRECT	 			
	905400	Pigment Control Crème (4% HQ)	80 mL / 2.7 Fl. Oz.	$XXX
	$XXX
	$XXX

	906000	Pigment Control + Brightening Crème (4% HQ + 20% Vit C)
	81 mL / 2.8 Fl. Oz.	$XXX
	$XXX
	$XXX

	905700	Pigment Control & Blending Crème (4% HQ)	80 mL / 2.7 Fl. Oz.	$XXX
	$XXX
	$XXX

	904200	Daily Power Defense	50 mL / 1.7 Fl. Oz.	$XXX
	$XXX
	$XXX

	904400	Growth Factor Serum	30 mL / 1 Fl. Oz.	$XXX
	$XXX
	$XXX

	912700	Firming Serum	47 mL / 1.6 Fl. Oz.	$XXX
	$XXX
	$XXX

	918400	Wrinkle + Texture Repair	50 mL / 1.7 FL. Oz	$XXX
	$XXX
	$XXX











																		
	904000	Radical Night Repair	60 mL / 2 Fl. Oz.	$XXX
	$XXX
	$XXX

	904000	10% Vitamin C	50 mL / 1.7 Oz.	$XXX
	$XXX
	$XXX

	905200	Exfoliation Accelerator	50 mL /1.7 FL. Oz	$XXX
	$XXX
	$XXX

	941800	Instant Pore Refiner	 29 g / 1 Oz.
	$XXX
	$XXX
	$XXX

	905100	Enzymatic Peel	50 mL / 1.7 Oz.	$XXX
	$XXX
	$XXX

	940700	Brightalive® 
	50 mL / 1.7 Oz.	$XXX
	$XXX
	$XXX

	950500	Retinol Skin Brightener (1%)	50 mL /1.7 FL. Oz	$XXX
	$XXX
	$XXX

	950300	Retinol Skin Brightener (0.5%)	50 mL /1.7 FL. Oz	$XXX
	$XXX
	$XXX

	950400	Retinol Skin Brightener (0.25%)	50 mL /1.7 FL. Oz	$XXX
	$XXX
	$XXX

	907000	Acne Control	60 mL / 2 Fl. Oz.	$XXX
	$XXX
	$XXX

	930700	Complexion Clearing Masque	85 g / 3 Oz.	$XXX
	$XXX
	$XXX

	907100	Correct & Conceal Acne Treatment - Light	2.3 g / .09 Oz	$XXX
	$XXX
	$XXX

	907200	Correct & Conceal Acne Treatment - Medium	2.3 g / .09 Oz	$XXX
	$XXX
	$XXX

	907400	Rozatrol® 
	50 mL / 1.7 Oz.	$XXX
	$XXX
	$XXX

	PROTECT	 			
	919300	Sunscreen + Primer SPF 30	30 mL / 1 Fl. Oz.	$XXX
	$XXX
	$XXX

	902700	Smart Tone Broad Spectrum SPF 50	45 mL / 1.5 Fl. Oz.	$XXX
	$XXX
	$XXX

	902400	Daily Sheer Broad Spectrum SPF 50	45 mL / 1.5 Fl. Oz.	$XXX
	$XXX
	$XXX

	903400	Broad Spectrum Sunscreen SPF 50	118 g / 4 Fl. Oz.	$XXX
	$XXX
	$XXX

	972400	Sunscreen + Powder SPF 30 - Light	2.7 g / 0.09 Oz.	$XXX
	$XXX
	$XXX

	972500	Sunscreen + Powder SPF 30 - Medium	2.7 g / 0.09 Oz.	$XXX
	$XXX
	$XXX











																		
	972600	Sunscreen + Powder SPF 30 – Deep	2.7 g / 0.09 Oz.	$XXX
	$XXX
	$XXX

	SUPPLEMENTARY	 			
	950200	Renewal Crème	50 mL / 1.7 Fl. Oz.	$XXX
	$XXX
	$XXX

	950100	Recovery Crème	50 mL / 1.7 Fl. Oz.	$XXX
	$XXX
	$XXX

	915300	Hydrating Crème	113 g / 4 Oz.	$XXX
	$XXX
	$XXX

	907700	Cellulite Control	150 g / 5.3 Oz.	$XXX
	$XXX
	$XXX

	907600	Body Emulsion	240 mL / 8 Fl Oz.	$XXX
	$XXX
	$XXX

	907900	Intense Eye Repair	15 mL / 0.5 Fl. Oz.	$XXX
	$XXX
	$XXX

	918300	Eye Brightening Crème	15 g / 0.5 Oz.	$XXX
	$XXX
	$XXX

	940300	Growth Factor Eye Serum	15 mL / 0.5 Fl. Oz.	$XXX
	$XXX
	$XXX

	PROGRAMS + KITS				
	912100	Daily Skincare Program 
	4 Product Regimen	$XXX
	$XXX
	$XXX

	926400	Anti-Aging Program 
	5 Product Regimen	$XXX
	$XXX
	$XXX

	926300	Aggressive Anti-Aging Program 
	6 Product Regimen	$XXX
	$XXX
	$XXX

	909400	Skin Normalizing System
	5 Product Regimen	$XXX
	$XXX
	$XXX

	926500	Complexion Clearing Program
	5 Product Regimen	$XXX
	$XXX
	$XXX

	969000	Skin Brightening Program	5 Product Regimen	$XXX
	$XXX
	$XXX

	973330	Skin Brightening Program + Texture	4 Product Regimen	$XXX
	$XXX
	$XXX

	913100	3 Step Peel	6 peels	$XXX
	$XXX
	$XXX

	910500	ZO® Controlled Depth Peel® Kit
	12 peels	$XXX
	$XXX
	$XXX



* This product list is non-exhaustive and is subject to modification and change at the sole discretion of ZO.








EXHIBIT B


PURCHASE ORDER AND ROLLING FORECAST FORM
[To be provided by ZO SKIN HEALTH from time to time.]




































* Note: Forms are subject to change.










EXHIBIT E
BUSINESS PLAN GUIDELINES
1.Distributor Mission Statement


2.ZO Brand Positioning in the market and in the Distributors product line, including all Distributor product and service offerings, whether by Distributor or its affiliates


3.Currently Targeted Sales Channels – XXX


4.Financial Summary
◦Including without limitation XXX


5.Strategy
◦XXX


6.Market Analysis
◦XXX
◦Current number of XXX
◦Distributor estimation of XXX


7.Business Expansion Strategy
◦XXX


8.Operations
◦Distribution Center and all information pertaining to operations


9.Management Structure


10.Organizational Structure
◦XXX


If the Distributor’s Territory includes more than one country, the above information shall be provided separately for each country.
* ZO may update these Business Plan Guidelines from time to time.










EXHIBIT G
MONTHLY REPORTING GUIDELINES


* This list is non-exhaustive and may be updated by ZO from time to time.