ex1054.htm


    
      Exhibit 10.54


      Amended and Restated
Executive Employment Agreement

       

       

      


       

       

      This
Amended and Restated Employment Agreement (this "Agreement"), is
executed and delivered effective as of June 15, 2009 (the "Effective Date"), by
and between Obagi Medical Products, Inc., a Delaware corporation (the "Company"), and
Preston S. Romm, an individual resident of the State of California ("Executive").

       

       

      1.    
Position
And Responsibilities

       

       

             
 (a)  Position.  Executive
is employed by the Company to render services to the Company in the position
of­­­­­­­­­­­­­­­­­­­­
­­­Chief Financial Officer and Executive Vice President, Finance,
Operations and Administration. Executive shall report directly to the Chief
Executive Officer.  Executive shall perform such duties and
responsibilities as are normally related to such position, in accordance with
industry standards, and any additional duties now or hereafter assigned to
Executive by the Board of Directors of the Company.  Executive shall
abide by the Company's rules, regulations and practices, as adopted or modified
from time to time in the Company's sole discretion.  Without limiting the
generality of the foregoing, for so long as Executive holds the position of
Chief Financial Officer, at the Company's request Executive shall execute all
certifications required to be executed by the Company's principal accounting
officer (or person performing similar functions) pursuant to the regulations
adopted by the Securities and Exchange Commission under Section 302 of the
Sarbanes-Oxley Act of 2002 ("SOX") all
certifications or similar items required to be executed by the Company's
principal accounting officer (or equivalent thereof) pursuant to
Section 404 of the SOX or the Company's independent auditors, and all
certifications required to be executed by the Company's principal accounting
officer (or equivalent thereof) pursuant to Section 906 of SOX.

       

       

      (b)  Other Activities.
Except with the prior written consent of the Company, Executive shall not,
during the term of this Agreement, (i) accept any other employment, or (ii)
engage, directly or indirectly, in any other business activity (whether or not
pursued for pecuniary gain) that might interfere with Executive's duties and
responsibilities hereunder or create a conflict of interest with the
Company.  Executive may serve as a member of the board of directors of
any Company that does not compete directly with the
Company.  Notwithstanding the foregoing, Executive may also devote
reasonable time and attention to civic, charitable or social organizations so
long as such activities do not interfere with the performance of his duties to
the Company.

       

       

             
 (c)  No
Conflict. Executive represents and warrants that Executive's execution of
this Agreement, Executive's employment with the Company and the performance of
Executive's proposed duties under this Agreement shall not violate any
obligations Executive may have to any prior employer, or any other person or
entity, including, without limitation, any obligations with respect to
proprietary or confidential information of any prior employer, or any other
person or entity.

       

      2.      Compensation
And Benefits

       

             
(a)  Base
Salary. In consideration of the services to be rendered under this
Agreement, the Company shall pay to Executive a salary at the current rate of
Three Hundred and Twenty Thousand Dollars ($320,000.00) per year, as adjusted
from time to time as described below (the "Base Salary"). The
Base Salary shall be paid in accordance with the Company's standard bi-weekly
payroll practices. The Base Salary will be reviewed and adjusted from time to
time in accordance with the Company's procedures for adjusting salaries for
senior executives and as approved by the Compensation Committee of the Board of
Directors.

       

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

       

             
(b)  Bonus. Executive
shall be eligible to receive an annual bonus based on a percentage of
Executive’s Base Salary (currently 60%), or other increased percentage as may be
determined by the Company’s Board of Director’s from time to time (the “Bonus”).  Any
such Bonus shall be subject to Executive's achievement of corporate financial
metrics or other goals and objectives to be established from time to time by the
Company's Board of Directors (or a committee thereof).

       

       

             
(c)  Stock
Option/Restricted Stock Awards.  The Company has previously
granted to Executive non-qualified stock options under the Company’s 2005 Stock
Incentive Plan (the “Plan”) to purchase
one hundred fifty thousand (150,000) shares and fifty thousand (50,000) shares
of the Company's Common Stock, $0.001 par value per share (the "Common Stock"), at an
exercise price of $10.00 and $5.86 per share, respectively pursuant to the form
of stock option agreement adopted for use under the Plan (the “Options”).  Other
than as set forth in Section 3(c), 3(d) or 3(e) below, the Options vest in three
equal annual installments from the date of grant.  The Options shall
expire on the tenth (10th) anniversary of the date of grant. Unless otherwise
agreed to by the Compensation Committee of the Board of Directors, future option
grants shall be subject to these same general terms and conditions ("Subsequent
Options").  Other than as set forth in this Agreement, all
options granted to Executive, including the Options, shall be subject to the
terms and conditions of the respective stock option agreement and related plan
documents, and any additional terms approved by the Compensation Committee of
the Board of Directors at the time of grant.

       

       

      From time to time, the Compensation
Committee of the Board of Directors may also grant restricted stock units to you
pursuant to the Plan (“Subsequent RSUs”).
Any such future Subsequent RSUs will be subject to vesting terms to be approved
at that time.

       

       

             
(d)  Benefits.  Executive
shall continue to be eligible to participate in any and all medical, dental,
vision, retirement, life insurance, AD&D and other benefits (the “Benefits”)
established by the Company that are made generally available by the Company to
executive officers of the Company, as such plans may be amended from time to
time in the Company's sole discretion. Without limiting the generality of the
foregoing, Executive, and to the extent applicable, Executive's covered
dependants, shall be eligible to participate in the Company's 401(k) program and
shall receive immediate enrollment for health benefits to the maximum extent
possible under the Company's benefit plans.

       

       

             (e)
 Vacation.
Executive shall receive three (3) weeks of paid vacation time per calendar year,
which amount shall increase in accordance with the Company's vacation policy for
employees of the Company generally. Executive may take such accrued vacation at
such times as are mutually convenient to Executive and the Company. In addition,
Executive shall be entitled to all holidays provided under the Company's regular
holiday schedule.

       

       

              (f)
 Business
Expenses. The Company will reimburse Executive for reasonable and
necessary expenses appropriately incurred by Executive in performing his duties
and obligations to the Company in accordance with, and subject to, such policies
and procedures regarding executive officer expenses generally as the Company may
from time to time have in effect.

       


      
        
           


        

        
          2

          
            

          

        

        
           


        

      


      3.    
At-Will
Employment

       

       

             
(a)  At-Will
Termination by Company. The employment of Executive shall be "at-will" at
all times. The Company may terminate Executive's employment with the Company at
any time, without any advance notice, for any reason or no reason at all,
notwithstanding anything to the contrary contained in or arising from any
statements, policies or practices of the Company relating to the employment,
discipline or termination of its employees. Upon and after the date of such
termination, all obligations of the Company shall cease, except as set forth
below in Section 3(b), 3(c), 3(d) or 3(e).

       

       

               (b)  At-Will Termination by
Executive. Executive may terminate employment with the Company at any
time for any reason or no reason at all, upon two weeks' advance written
notice.  During such notice period Executive shall continue to
diligently perform all of Executive's duties hereunder. The Company shall have
the option, in its sole discretion, to make Executive's termination effective at
any time prior to the end of such notice period as long as the Company pays
Executive all compensation (including all accrued Base Salary (at the annual
rate then in effect), vacation and any other amounts owed to Executive at the
time of termination) accrued to which Executive is entitled up through the last
day of the two-week notice period. Any such amounts shall be paid on the
effective date of termination. All reimbursable expenses incurred up to and
including the date of termination shall be submitted for payment within thirty
(30) days of termination and contain all documentation required pursuant to
Company policy.  Any and all options to acquire shares of Common Stock
that have vested under the Options, or any Subsequent Options or Subsequent RSUs
shall continue to belong to Executive.  Executive shall have ninety
(90) days in which to exercise any vested portion of any Options and Subsequent
Options.  All shares that remain unvested under such Options, and any
Subsequent Options or Subsequent RSUs shall cease to vest on the date of
termination.  Thereafter all obligations of the Company shall
cease.

       

       

             
(c)  Involuntary
Termination by Company without Cause Other Than for Good
Reason.

       

       

                     
 (i)  If the Company terminates Executive's employment for reasons
other than for Cause (as defined below) or death or disability (which is
governed by subparagraph (e) below), which will be dealt with on a case-by-case
basis at the time such event occurs, then, during the Severance Period (as
defined below), the Company shall (A) pay to Executive a sum equal to
twelve  (12) months of Base Salary (as then in effect) and (B)
continue to make available to Executive, at the Company’s expense, the Benefits
(including the full premium for COBRA continuation coverage if applicable for
Executive and his eligible dependents) made generally available by the Company
to its Executives for the Severance Period, to the extent permitted under
applicable law and the terms of such benefit plans. The cash consideration
payable pursuant to subsection (A) above shall be paid in equal monthly
installments as salary continuation pay, subject to deduction of ordinary
payroll taxes, commencing on the date that is no later than the earlier of
thirty (30) days following termination or the execution of the General Release
(as defined below).    In addition, if the Company
terminates Executive's employment for reasons other than for Cause, or death or
disability (as provided in subparagraph (e) below)(which will be dealt with on a
case-by-case basis at the time either such event occurs)then,
Options,  and any Subsequent Options or Subsequent RSUs automatically
shall cease to vest pursuant to the terms of the applicable stock option
agreements and restricted stock unit agreements, and in the case of Options or
Subsequent Options, Executive (or his estate, in the event of death) shall have
one (1) year in which to exercise any vested portion of such Options and any
Subsequent Options in accordance with the relevant plan
documents.  Executive will own any vested Subsequent

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

       

      RSUs
without any further action on Executive’s part. For purposes of this Agreement,
the term "Severance
Period" shall mean the twelve (12)-month period immediately following the
date of Executive's termination.  Any accrued vacation pay and any
other amounts owed to Executive at the time of termination shall be paid on the
effective date of Executive’s termination.  All reimbursable expenses
incurred up to and including the date of termination shall be submitted for
payment within thirty (30) days of termination and contain all documentation
required pursuant to Company policy.

       

       

                      
(ii)  The Company's termination of Executive's employment shall be for
"Cause" if
Executive: (A) exhibits willful misconduct or dishonesty which materially and
adversely effects the business reputation of Executive or the Company; (B) is
convicted of a felony; (C) acts (or fails to act) in the performance of his
duties to the Company in bad (good) faith and to the Company's detriment; (D)
materially breaches this Agreement or any other agreement with the Company,
which if curable, is not cured to the Company's reasonable satisfaction within
thirty (30) days of written notice thereof; or (E) engages in misconduct that is
demonstrably and materially injurious to the Company, including, without
limitation, willful and material failure to perform his duties as an officer or
Executive of the Company or excessive absenteeism unrelated to illness or
vacation.

       

       

             
(d)  Termination
by Executive for Good Reason.

       

       

      
        	
                (i)  

              	
                If
      Executive terminates his employment for Good Reason (as defined below)
      then, during the Severance Period, the Company shall (A) pay to Executive
      a sum equal to twelve (12) months of the Base Salary (as then in effect)
      and (B) continue to make available to, and pay on Executive’s behalf, the
      Benefits (including the full premium for COBRA continuation coverage if
      applicable for Executive and his eligible dependents) made generally
      available by the Company to its Executives for that twelve (12)-month
      period, to the extent permitted under applicable law and the terms of the
      benefit plans. The cash consideration payable pursuant to
      subsection (A) above shall be paid as salary continuation pay in
      equal monthly installments, subject to normal payroll deductions,
      commencing on the date that is no later than the earlier of thirty (30))
      days following termination or the execution of the General
      Release.  Any Benefits shall also be paid in equal monthly
      installments during the Severance Period.  All reimbursable
      expenses incurred up to and including the date of termination shall be
      submitted for payment within thirty (30) days of termination and contain
      all documentation required pursuant to Company policy.  All
      accrued vacation and any other amounts owed to Executive as of the
      termination date shall be paid on the effective date of
      termination.

              


      

       

       

      
        	
                (ii)  

              	
                In
      addition, notwithstanding anything to the contrary contained in the stock
      option agreements evidencing such Options, Subsequent Options or the Plan
      or in any restricted stock unit agreement evidencing any such Subsequent
      RSUs, in the case of a Change of Control where the consideration being
      paid is solely in cash, all Options, and Subsequent Options and Subsequent
      RSUs shall fully vest and, in the case of Options and Subsequent Options,
      shall be exercisable immediately prior to such Change of Control
      regardless of Executive’s continued employment status. In the case of any
      Change of Control where the consideration is stock or a combination of
      stock and cash, the vesting, acceleration and exercisability provisions of
      the existing

              


      

       


      
        
           


        

        
          4

          
            

          

        

        
           


        

      

       

      
        	
                (iii)  

              	
                agreements
      evidencing and Options, Subsequent Options or Subsequent RSUs shall
      continue to govern.

              


      

       

       

      
        	
                (iv)  

              	
                Executive's
      termination of his employment shall be for "Good Reason" if
      following a Change of Control the Employer (including any successor in
      interest) (A) terminates Executive’s employment at any time within the one
      year anniversary of such Change of Control (as defined below), or reasons
      other than for Cause,  or death or disability (which will be
      dealt with on a case-by-case basis at the time either such event occurs);
      (B) Executive voluntarily terminates his employment within six (6)
      months of the Company's (or any successor in interest)  material
      reduction of Executive's level of responsibility; or (C) Executive
      terminates his employment within six (6) months of the Company's (or any
      successor in interest) material reduction of the Base Salary, except for
      any salary reduction that is generally applicable to the Company's
      executives; provided that in the case of (B) and (C) above, “Good Reason”
      shall only be found to exist if prior to Executive’s resignation for Good
      Reason, the Executive has provided thirty (30) days written notice to the
      Company within ninety (90) days following the existence of such Good
      Reason event indicating and describing the event resulting in such Good
      Reason, and the Company does not cure such event within ninety (90) days
      following the receipt of such notice from Executive.  In the
      event the Company fails to timely cure, Executive may resign upon
      expiration of the cure period.

              


      

       

       

      
        	
                (v)  

              	
                For
      purposes of this Agreement, the term "Change of Control" shall mean any of
      the following transactions:

              


      

       

       

                                     
(A)  a merger or consolidation in which the Company is not the surviving
entity, except for a transaction the principal purpose of which is to change the
state in which the Company is incorporated;

       

       

                                     
(B)  the sale, transfer or other disposition of all or substantially all of
the assets of the Company (including the capital stock of the Company's
subsidiary corporations);

       

       

                                     
(C)  the complete liquidation or dissolution of the Company;

       

       

                                     
(D)  any reverse merger or series of related transactions culminating in a
reverse merger (including, but not limited to, a tender offer followed by a
reverse merger) in which the Company is the surviving entity but in which
securities possessing more than fifty percent (50%) of the total combined
voting power of the Company's outstanding securities are transferred to a person
or persons different from those who held such securities immediately prior to
such merger or the initial transaction culminating in such merger but excluding
any such transaction or series of related transactions that the Board of
Directors determines shall not be a Change of Control; or

       

       

                                     
 (E)  acquisition in a single or series of related transactions by any
person or related group of persons (other than the Company or by a
Company-sponsored employee benefit plan) of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities Exchange Act of 1934) of securities
possessing more than fifty percent (50%) of the total combined voting power
of the Company's outstanding securities but excluding any such transaction or
series of related transactions that the Board of Directors determines shall not
be a Change of Control.  

       


      
        
           


        

        
          5

          
            

          

        

        
           


        

      

       

      Death/Disability.  Upon
termination for death or as a result of permanent disability (as defined in the
2005 Plan), the Company shall pay Executive all compensation (including all
accrued Base Salary (as then in effect), or vacation, any other amounts owed to
Executive upon such event, and subject to payment of all reimbursable expenses)
accrued to which Executive is entitled up through the date of
death.  Any and all options to acquire shares of Common Stock that
have vested under the Options, Subsequent Options,  or Subsequent RSUs
hereunder shall cease to vest but, in the case of any Options or any Subsequent
Options, the period to exercise such options shall be extended for a period of
one (1) year following death or permanent disability.

       

       

      (f)  Release.  Executive's
right to receive any payments or other benefits under this Section 3 (other
than if termination is due to death, disability or voluntary resignation or for
cause, in each case assuming no severance payment is made, and in which case no
release would be required) is expressly conditioned upon: (A) Executive's
execution of a general release of all claims as of the date of Executive's
termination, in substantially the form then in existence for executive employees
generally (the "General Release");
and (B) Executive's compliance with his obligations under this Agreement,
and all other agreements between Executive and the Company.  With
respect to the General Release, Executive or Executive’s legal representative
must, within twenty-one (21) days after presentation of such General Release,
execute such release on behalf of Executive and Executive’s estate, heirs and
representatives.

       

       

      4.    
Termination
Obligations

       

       

             
 (a)                       Return of
Property.  Executive agrees that all property (including,
without limitation, all equipment, tangible proprietary information, documents,
records, notes, contracts and computer-generated materials) furnished to or
created or prepared by Executive incident to Executive's employment belongs to
the Company and shall be promptly returned to the Company upon termination of
Executive's employment.

       

       

      (b) Cooperation.
Following any termination of his employment, Executive shall perform any and all
acts requested by the Company to ensure the orderly and efficient transition of
Executive's duties. Such acts may include, but are not limited to:
(i) participating in meetings or telephone conferences;
(ii) reviewing, preparing or executing documents; and (iii) providing
assistance in connection with any litigation, investigation or audit involving
the Company, or any of its affiliates, directors, officers, employees, agents,
attorneys, representatives, stockholders, insurers, divisions, successors and/or
assigns and any related holding, parent or subsidiary corporations.     

       

       

      5.      Non-Disclosure
Of Third-Party Information

       

       

      Executive
represents and warrants and covenants that Executive shall not disclose to the
Company, or use, or induce the Company to use, any proprietary information or
trade secrets of others at any time, including but not limited to, any
proprietary information or trade secrets of any former employer, if any; and
Executive acknowledges and agrees that any violation of this provision shall be
grounds for Executive's immediate termination and could subject Executive to
substantial civil liabilities and criminal penalties.  Executive
further specifically and expressly acknowledges that no officer or other
employee or representative of the Company has requested or instructed Executive
to disclose or use any such third-party proprietary information or trade
secrets.

       


      
        
           


        

        
          6

          
            

          

        

        
           


        

      

       

      6.      Nonsolicitation;
Non-Interference

       

       

      Executive
acknowledges and agrees that the Company's relationships with its employees,
consultants, and service providers are valuable business
assets.  Accordingly, Executive agrees that, during his employment
with the Company and during the Severance Period following the date of any
termination of such employment, he will not (for himself or for any third party)
divert or attempt to divert from the Company any employee, consultant, or
service provider, through solicitation or otherwise, or otherwise interfere with
the Company's business or the Company's relationships with its employees,
consultants, and service providers.

       

       

      7.      Amendments;
Waivers; Remedies

       

       

      This
Agreement may not be amended or waived except by a writing signed by Executive
and by a duly authorized officer of the Company.  Failure to exercise
any right under this Agreement shall not constitute a waiver of such
right.  Any waiver of any breach of this Agreement shall not operate
as a waiver of any subsequent breaches.  All rights or remedies
specified for a party herein shall be cumulative and in addition to all other
rights and remedies of the party hereunder or under applicable law.

       

       

      8.    
Assignment;
Binding Effect

       

       

             
(a) Assignment.
The performance of Executive is personal hereunder, and Executive agrees that
Executive shall have no right to assign and shall not assign or purport to
assign any rights or obligations under this Agreement. This Agreement may be
assigned or transferred by the Company and nothing in this Agreement shall
prevent the consolidation, merger or sale of the Company or a sale of any or all
or substantially all of its assets.

       

       

             
(b)  Binding
Effect.  Subject to the foregoing restriction on assignment by
Executive, this Agreement shall inure to the benefit of and be binding upon each
of the parties; the affiliates, officers, directors, agents, legal
representatives, successors and assigns of the Company; and the heirs, devisees,
spouses, legal representatives and successors of Executive.

       

       

      9.      Notices

       

       

      All
notices or other communications required or permitted hereunder shall be made in
writing and shall be deemed to have been duly given if delivered: (a) by hand;
(b) by a nationally recognized overnight courier service; or (c) by United
States first class registered or certified mail, return receipt requested, to
the principal address of the other party, as set forth below on the signature
page of this Agreement. The date of notice shall be deemed to be the earlier of
(i) actual receipt of notice by any permitted means, or (ii) five (5) business
days following dispatch by overnight delivery service or the United States mail.
Executive shall be obligated to notify the Company in writing of any change in
Executive's address. Notice of change of address shall be effective only when
provided in accordance with this Section 9.

       

       

      10.    
Severability

       

       

      If any
provision of this Agreement shall be held by a court of competent jurisdiction
to be invalid, unenforceable or void, such provision shall be enforced to the
fullest extent permitted by law, and the remainder of this Agreement shall
remain in full force and effect. In the event that the time period or scope of
any provision is declared by a court or arbitrator of competent

       

      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

      

       

      jurisdiction
to exceed the maximum time period or scope that such court or arbitrator deems
enforceable, then such court or arbitrator shall reduce the time period or scope
to the maximum time period or scope permitted by law.

       

       

      11.      Taxes

       

       

      (a)  Withholding.  All
amounts paid under this Agreement (including, without limitation, the Base
Salary) shall be paid less all applicable state and federal tax withholdings and
any other withholdings required by any applicable jurisdiction.

       

       

      (b)   Section 409A
Compliance.  To the extent the salary continuation pay paid
pursuant to Section 3(c) or (d) are paid from the date of Executive’s
termination of employment through March 15 of the calendar year following such
termination, such severance benefits are intended to constitute separate
payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations and
thus payable pursuant to the “short-term deferral” rule set forth in Section
1.409A-1(b)(4) of the Treasury Regulations; (b) are paid following said March
15, such severance benefits are intended to constitute separate payments for
purposes of Section 1.409A-2(b)(2) of the Treasury Regulations made upon an
involuntary separation from service and payable pursuant to Section
1.409A-1(b)(9)(iii) of the Treasury Regulations, to the maximum extent permitted
by said provision, and (c) are in excess of the amounts specified in clauses (a)
and (b) of this paragraph, shall (unless otherwise exempt under Treasury
Regulations) be considered separate payments subject to the distribution
requirements of Section 409A(a)(2)(A) of the Internal Revenue Code of 1986, as
amended (the “Code”), including,
without limitation, the requirement of Section 409A(a)(2)(B)(i) of the Code that
payments or benefits be delayed until six (6) months after Executive’s
separation from service (or death, if earlier) if Executive is a “specified
employee” within the meaning of the aforesaid section of the Code at the time of
such separation from service.  In the event that a six (6) month delay of
any such separation payments or benefits is required, on the first regularly
scheduled pay date following the conclusion of the delay period, Executive shall
receive a lump sum payment or benefit in an amount equal to the separation
payments and benefits that were so delayed, and any remaining separation
payments or benefits shall be paid on the same basis and at the same time as
otherwise specified pursuant to this Agreement (subject to applicable tax
withholdings and deductions).  If the continued benefits under Section 3(c)
or (d) (or reimbursements for the cost of such benefits, as applicable) are
taxable to Executive or otherwise result in income imputed to Executive, then if
Executive is a “specified employee”, to the extent necessary to avoid a
violation of Section 409A of the Code, Executive shall pay for such benefits for
the first six months following Executive’s separation from service and shall be
reimbursed for such payments on the first day of the seventh month following
such separation from service (or death, if earlier).

       

       

      The term
"termination of employment” as it appears in Section 3 shall be interpreted
consistent with the term "separation from service" within the meaning of section
Treasury Regulation §1.409A-1(h) to the extent strictly necessary to either
qualify the arrangement as an involuntary separation arrangement that is exempt
from section 409A of the Code, or establish a time of payment that complies with
section 409A of the Code.

       

       

      (b)  Section 280G.
Notwithstanding anything herein to the contrary, to the extent that the
severance benefits to be paid to Executive hereunder exceed an amount equal to
2.99 times the Executive’s “base amount” as determined pursuant to
Section 280G of the Code, the amount of the severance benefits shall be
reduced to the minimum extent necessary to ensure that the severance benefits do
not exceed the amount determined pursuant to Section 280G of the
Code.  Any such reductions shall be made first from compensation which
is not deferred compensation subject to regulation under Section 409A of
the Code; thereafter the Board of Directors (or Compensation Committee thereof)
may determine the order of compensation to be paid out. This Section 11(b) shall
apply only with respect to a severance benefit which is a “parachute payment”
within the meaning of Section 280G of the Code.

       

      
        
          
          

        

        
          8

          
            

          

        

        
          
          

        

      

       

      12.    
Governing
Law

       

       

      This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of California, without regard to conflicts of law
principles.

       

       

      13.     Equitable
Relief

       

       Executive
agrees that any breach of Section 5 or 6 of this Agreement would cause
substantial and irreparable harm to the Company for which money damages would be
an inadequate remedy.  Accordingly, the Company shall in any such
event be entitled to obtain injunctive and other forms of equitable relief to
prevent such breach and to recover from Executive the Company’s costs (including
without limitation reasonable attorneys’ fees) incurred in connection with
enforcing the relevant provisions referenced above of this Agreement, in
addition to any other rights or remedies available at law, in equity or by
statute.

       

      14.    
Interpretation

       

       

      This
Agreement shall be construed as a whole, according to its fair meaning, and not
in favor of or against any party.  Sections and section headings
contained in this Agreement are for reference purposes only, and shall not
affect in any manner the meaning or interpretation of this
Agreement.  Whenever the context requires, references to the singular
shall include the plural and the plural the singular.

       

       

      15.    
Attorney's Fees

       

       

      If any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorneys'
fees, costs and necessary disbursements, in addition to any other relief to
which the party may be entitled.

       

       

      16.    
Obligations
Survive Termination Of Employment

       

       

      The
parties agree that any and all of the Company's or Executive's obligations under
this Agreement shall survive the termination of this Agreement.

       

       

      17.    Counterparts

       

       

      This
Agreement may be executed in counterparts, each of which shall be deemed an
original of this Agreement, but all of which together shall constitute one and
the same instrument.

       

       

      18.    
Authority

       

       

      Each
party represents and warrants that such party has the right, power and authority
to enter into and execute this Agreement and to perform and discharge all of the
obligations hereunder; and that this Agreement constitutes the valid and legally
binding agreement and obligation of such party and is enforceable in accordance
with its terms.

       

      
        
          
          

        

        
          9

          
            

          

        

        
          
          

        

      

       

      19.    
Entire
Agreement

       

       

      This
Agreement is intended to be the final, complete and exclusive statement of the
terms of Executive's employment by the Company supersedes and may not be
contradicted by evidence of any prior or contemporaneous statements or
agreements, including the Employment Agreement dated June 18, 2008 between
Executive and the Company. Notwithstanding the foregoing, this Agreement shall
not supersede or otherwise affect any agreements previously executed by
Executive relating to the Company's proprietary information or intellectual
property rights.  To the extent that the plans, practices, policies or
procedures of the Company, now or in the future, apply to Executive and are
inconsistent with the terms of this Agreement, the provisions of this Agreement
shall control.  Any subsequent change in Executive's duties, position
or compensation shall not affect the validity or scope of this Agreement other
than as set forth in Section 3(d)(iii) above.

       

       

      20.      Indemnification

       

       

      The
Company shall indemnify Executive to the fullest extent permitted by applicable
law and the Company’s Bylaws with respect to Executive’s service to the Company
and Executive shall at all times be covered under a director’s and officer’s
liability policy(ies) paid for by the Company. If not yet executed, Executive
shall become party to the form of Indemnification Agreement currently in
existence with the Company.

       

       

      


       

       

      [Signature
page appears on page 11]

       

      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

      

       

      21.    
Executive Acknowledgement

       

       

      Executive
acknowledges that Executive has had the opportunity to consult legal counsel
concerning this Agreement, that Executive has read and understands this
Agreement, that Executive is fully aware of its legal effect and that Executive
has entered into this Agreement freely based on Executive's own judgment and not
on any representations or promises other than those contained in this
Agreement.

       

       

      In
Witness Whereof, the parties hereby execute this Employment Agreement as
of the Effective Date.

       

      
        
          
            	
                    Obagi
      Medical Products, Inc.

                  	 
      	
                    Executive:

                  
	 
      	 
      
	 
      	 
      
	 
      	 
      
	
                    By:

                  	
                    /s/
      STEVEN R. CARLSON

                  	 
      	
                    /s/
      PRESTON S. ROMM

                  
	 
      	
                    Steven
      R. Carlson

                    Chief
      Executive Officer

                  	 
      	
                    Preston
      S. Romm.

                    Chief
      Financial Officer and Executive Vice President, Finance, Operations and
      Administration

                  
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      
	
                    Address
      for notices:

                  	 
      	
                    Address
      for notices:

                  
	 
      	 
      	 
      
	
                    3760
      Kilroy Airport Way, Suite 500

                    Long
      Beach, CA  90806

                  	 
      	
                     

                  
	 
      	 
      	 
      


          

        

      

      


      
        	
                Attention:
      Chairman, Compensation Committee

              	 
      	 
      


      

       

      


      11