EXHIBIT 10.8
AMENDMENT NO. 1
TO THE
RESTRICTED STOCK PURCHASE AGREEMENT
This Amendment No. 1 (this "Amendment") to the Restricted Stock
Purchase Agreement, dated as of October 31, 2001 (the "Restricted Stock Purchase
Agreement"), is entered into effective as of May 7, 2002, by and between Barrier
Therapeutics, Inc. (formerly known as Barrier Health Technologies, Inc.), a
Delaware corporation (the "Company"), and Xx. Xxxxx Xxxxxxxxxxx (the
"Purchaser"). Capitalized terms used herein and not otherwise defined shall have
the meanings given to them in the Restricted Stock Purchase Agreement.
RECITALS:
WHEREAS, the Company agreed to sell and the Purchaser agreed to
purchase shares of the Company's common stock, par value of $.0001 per share
(the "Common Stock"), pursuant to that certain Restricted Stock Purchase
Agreement; and
WHEREAS, the Company is currently negotiating the sale of its Series B
Convertible Preferred Stock (the "Series B Shares") to certain investors (the
"Series B Financing"); and
WHEREAS, in connection with the Series B Financing, the Company has
proposed to issue and sell up to 16,000,000 shares of its Series B Shares to
those certain investors (the "Series B Investors"), at a purchase price of $3.00
per share, pursuant to a certain Series B Convertible Purchase Agreement (the
"Purchase Agreement"); and
WHEREAS, in connection with the Series B Financing, the Series B
Investors are requesting and the Company and the Purchaser have agreed to make
certain amendments to the Restricted Stock Purchase Agreement and the Common
Stock issued thereunder (the "Shares"); and
WHEREAS, this Amendment shall be effective upon execution by the
Company and the Purchaser.
NOW THEREFORE, in consideration of the mutual covenants herein, and
intending to be legally bound hereby, the parties agree as follows:
1. Section 3 of the Restricted Stock Purchase Agreement is hereby amended
to include paragraph (c) as follows:
"(c) Notwithstanding paragraph (a) above, if the Purchaser
shall not have commenced his employment with the Company within sixty (60) days
after the date of this Amendment, then the Company shall have the right to
repurchase all of the Shares pursuant to the terms set forth in paragraph (a)
above."
2. Section 4 of the Restricted Stock Purchase Agreement is hereby amended
in its entirety to read as follows:
"4. Release of Shares From Repurchase Option. The Shares shall be released
from the Repurchase Option as follows:
PERCENTAGE OF SHARES FOR WHICH THE SHARES
DATE ARE RELEASED FROM THE REPURCHASE OPTION
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Upon the date the Purchaser commences employment with the Company 25%
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Upon the one year anniversary of the date the Purchaser commences 18.75%
employment with the Company
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Monthly for three (3) years beginning after the one year anniversary of 1.5625%
the date the Purchaser commences employment with the Company
Notwithstanding anything to the contrary, in the event that Purchaser
is terminated without Cause (as defined in Purchaser's employment agreement or
in the Company's 2002 Equity Compensation Plan) or due to death or disability,
the Repurchase Option shall be for only fifty percent (50%) of the unreleased
Shares.
The release of shares from the Repurchase Option is cumulative, but
shall not exceed 100%. If the foregoing schedule would produce fractional
Shares, the number of Shares for which the Repurchase Option is released shall
be rounded down to the nearest whole Share."
3. Except as specifically amended herein, all terms and conditions
contained in the Restricted Stock Purchase Agreement shall remain in full force
and effect. To the extent there is any conflict between the Restricted Stock
Purchase Agreement and this Amendment, the terms of this Amendment shall
prevail.
4. This Amendment shall be governed by and construed under the laws of the
State of New Jersey as applied to agreements among New Jersey residents entered
into and to be performed entirely within New Jersey.
5. This Amendment may be executed in any number of counterparts, each of
which shall be an original, but both of which together shall constitute one
instrument.
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IN WITNESS WHEREOF, the undersigned parties have executed this
Amendment No. 1 to the Restricted Stock Purchase Agreement as of the date set
forth in the first paragraph hereof.
BARRIER THERAPEUTICS, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President and Secretary
PURCHASER:
/s/ Geert Cauwenbergh
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Xx. Xxxxx Xxxxxxxxxxx
SIGNATURE PAGE TO AMENDMENT NO. 1
TO THE RESTRICTED STOCK PURCHASE AGREEMENT
