STOCKHOLDER SUPPORT AGREEMENT
Exhibit (d)(1)(B)
STOCKHOLDER SUPPORT AGREEMENT, dated as of June 23, 2008 (this “Agreement”), by and among
Xxxxxxx Laboratories, Inc., a Delaware corporation (“Parent”) and Geert Cauwenbergh, Ph.D. (the
“Stockholder”). Capitalized terms used but not defined herein shall have the meanings given to such
terms in the Merger Agreement.
W I T N E S S E T H:
WHEREAS, Parent, Bengal Acquisition Inc., a Delaware corporation and a wholly-owned Subsidiary
of Parent (“Purchaser”), and Barrier Therapeutics, Inc., a Delaware corporation (the “Company”),
are, concurrently with the execution and delivery of this Agreement, entering into an Agreement and
Plan of Merger, dated as of the date hereof (the “Merger Agreement”); and
WHEREAS, as of the date hereof, each Stockholder is the beneficial owner (as defined under
Rule 13d-3 of the Exchange Act) of the shares of Common Stock set forth under such Stockholder’s
name on the signature page to this Agreement (the “Existing Shares” and, together with any other
shares of Common Stock, or other capital stock of the Company acquired by the Stockholder after the
date hereof, collectively, the “Shares”); and
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has
requested that the Stockholder enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties,
covenants and agreements contained herein, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I
AGREEMENTS
1.1. Agreement to Tender. Unless this Agreement shall have previously been terminated in
accordance with its terms, each Stockholder agrees to accept the Offer with respect to all the
Shares (excluding for purposes of this Section 1.1 Shares that are subject to unexercised Stock
Options until such time as such Stock Options are exercised) and to tender all the Shares pursuant
to the Offer. Such tender shall be made within ten Business Days of the commencement of the Offer,
and with respect to any Shares obtained after such date, (by way of exercise of Stock Options or
otherwise, promptly after such Shares are obtained). The Stockholder shall not withdraw any Shares
tendered pursuant to the Offer unless either (i) this Agreement terminates pursuant to Section 4.1
or (ii) the Offer shall have been terminated pursuant to the terms of the Merger Agreement. Parent
or Purchaser shall pay ehe Stockholder for any Shares tendered in accordance with the Merger
Agreement and not withdrawn on the date of acceptance of shares for payment pursuant to the Offer.
If the Offer is terminated by Parent or Purchaser, or this Agreement is terminated in accordance
with its terms, Parent and Purchaser shall cause the depository acting on behalf of Parent and
Purchaser to return all tendered Shares to the Stockholder promptly. The Stockholder agrees to
permit Parent and Purchaser to publish and disclose in the Offer Documents and, if approval of the
Company’s
stockholders is required under the Delaware General Corporate Law (“DGCL”), any proxy
statement (including all related documents and schedules filed with the SEC), his or its identity
and ownership of Shares, the nature of his or its commitments, arrangements and understandings
under this Agreement and any other information required by applicable Law.
1.2. Agreement to Vote. From and after the date hereof and until this Agreement terminates
pursuant to Section 4.1, at every meeting of the stockholders of the Company, however called, and
at every adjournment or postponement thereof, or in connection with any written consent of the
stockholders of the Company, relating to any proposed action by the stockholders of the Company
with respect to the matters set forth in Section 1.2(b) below, the Stockholder irrevocably agrees
to, with respect to any Shares not purchased in the Offer:
(a) appear at each such meeting or otherwise cause the Shares owned beneficially or of record
by the Stockholders to be counted as present thereat for purposes of calculating a quorum; and
(b) unless Parent votes the Shares directly pursuant to the proxy granted by Section 1.3
below, vote (or cause to be voted), in person or by proxy, all the Shares owned beneficially or of
record by the Stockholder, and any other voting securities of the Company (whenever acquired), that
are owned beneficially or of record by the Stockholder or as to which he has, directly or
indirectly, the right to vote or direct the voting, (i) in favor of approval of the Merger
Agreement and each of the other transactions contemplated thereby, (ii) against any action or
agreement submitted for approval of the stockholders of the Company that Parent has provided the
Stockholder with advance notice is or would reasonably be expected to result in any of the
conditions to the Company’s obligations under the Merger Agreement not being fulfilled or would
result in a breach of any covenant, representation or warranty or any other obligation or agreement
of the Company contained in the Merger Agreement or of the Stockholder contained in this Agreement,
(iii) against any action, agreement or transaction submitted for approval to the stockholders of
the Company that would reasonably be expected to materially impede, interfere or be inconsistent
with, delay, postpone, discourage or materially and adversely affect the timely consummation of the
Offer or the Merger; and (iv) against any other action, agreement or transaction submitted for
approval to the stockholders of the Company that would constitute a Takeover Proposal.
1.3. Proxy. (a) The Stockholder by this Agreement does hereby constitute and appoint Parent,
or any nominee of Parent, with full power of substitution, during and for the Proxy Term (as
hereinafter defined), as such Stockholder’s true and lawful attorney and irrevocable proxy, for and
in such Stockholder’s name, place and stead, to vote the Shares as such Stockholder’s proxy, at
every meeting of the stockholders of the Company, however called, and at every adjournment or
postponement thereof, or in connection with any written consent of the stockholders of the Company,
relating to any proposed action by the Stockholders of the Company with respect to the foregoing
matters: (i) in favor of approval of the Merger Agreement and each of the other transactions
contemplated thereby, (ii) against any action or agreement submitted for approval of the
stockholders of the Company that Parent has provided the Stockholder with advance notice is or
would reasonably be expected to result in any of the conditions to the Company’s obligations under
the Merger Agreement not being fulfilled or would result in a breach of any covenant,
representation or warranty or any other obligation or
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agreement of the Company contained in the Merger Agreement or of the Stockholder contained in
this Agreement, (iii) against any action, agreement or transaction submitted for approval to the
stockholders of the Company that would reasonably be expected to materially impede, interfere or be
inconsistent with, delay, postpone, discourage or materially and adversely affect the timely
consummation of the Offer or the Merger; and (iv) against any other action, agreement or
transaction submitted for approval to the stockholders of the Company that would constitute a
Takeover Proposal. The Stockholder intends this proxy to be irrevocable and coupled with an
interest during the Proxy Term and hereby revokes any proxy previously granted by such Stockholder
with respect to the Shares. The Stockholder acknowledges that, pursuant to the authority hereby
granted under the irrevocable proxy, Parent may vote, in accordance with the terms of this
Agreement, the Shares in furtherance of its own interests, and Parent is not acting as a fiduciary
for any Stockholder.
(b) For purposes of this Agreement, “Proxy Term” means the period from the execution of this
Agreement until the termination of this Agreement in accordance with the terms of Section 4.1
hereof.
(c) The Stockholder agrees that the irrevocable proxy set forth in this Section 1.3 shall not
be terminated by any act of the Stockholder or by operation of law, whether by the death or
incapacity of the Stockholder or by the occurrence of any other event or events, other than by
termination of this Agreement in accordance with the terms of Section 4.1 hereof. If prior to the
termination of this Agreement, any Stockholder should die or become incapacitated, certificates
representing the Shares shall be delivered by or on behalf of such Stockholder in accordance with
the terms and conditions of the Merger Agreement and this Agreement, and actions taken by Parent
hereunder shall be as valid as if such death or incapacity had not occurred, regardless of whether
or not Parent has received notice of such death or incapacity.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1. Representations and Warranties of the Stockholders. The Stockholder hereby represents
and warrants to Parent as follows:
(a) Authorization; Validity of Agreement; Necessary Action. Such Stockholder has all
requisite power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. To the extent applicable, the execution and delivery of this
Agreement and the consummation by the Stockholder of the transactions contemplated hereby have been
duly authorized by all necessary action (corporate or otherwise) on the part of such Stockholder.
This Agreement has been duly executed and delivered by such Stockholder and constitutes a valid and
binding obligation of such Stockholder, enforceable in accordance with its terms (except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors’ rights generally and to general equity principles). If such
Stockholder is married and the Shares set forth on the signature page hereto constitute community
property under applicable laws, this Agreement has been duly authorized, executed and delivered by,
and constitutes the valid and binding agreement of, such Stockholder’s spouse.
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(b) Ownership. As of the date hereof, the number of shares of Common Stock
beneficially owned (as defined under Rule 13d-3 of the Exchange Act) by such Stockholder is set
forth under such Stockholder’s name on the signature page to this Agreement. The Existing Shares
are, and (except as otherwise expressly permitted by this Agreement) any additional shares of
Common Stock and any options and warrants to purchase shares of Common Stock, or any other
securities of the Company convertible, exercisable or exchangeable into shares of Common Stock that
are acquired by the Stockholder after the date hereof and prior to the Effective Time will be,
owned beneficially by the Stockholder. As of the date hereof, the Existing Shares constitute all
of the securities of the Company (other than options to purchase shares of Common Stock outstanding
as of the date hereof and set forth under such Stockholder’s name on the signature page to this
Agreement) held of record, beneficially owned by or for which voting power or disposition power is
held or shared by the Stockholder. Such Stockholder has and (except as otherwise expressly
permitted by this Agreement) will have at all times through the Effective Time sole voting power,
sole power of disposition, sole power to issue instructions with respect to the matters set forth
in Article I or Section 3.1 hereof, and sole right, power and authority to agree to all of the
matters set forth in this Agreement, in each case with respect to all of the Existing Shares and
with respect to all of the Shares at all times through the Effective Time, with no limitations,
qualifications or restrictions on such rights, subject to applicable federal securities laws and
the terms of this Agreement. Such Stockholder has good; valid and marketable title to the Existing
Shares, free and clear of any Liens and such Stockholder will have good valid; and marketable title
to all Shares at all times through the Effective Time, free and clear of any Liens. Such
Stockholder further represents that any proxies heretofore given in respect of the Shares owned
beneficially and of record by such Stockholder, if any, are revocable, and hereby revokes such
proxies.
(c) No Violation. The execution and delivery of this Agreement by such Stockholder
does not, and the performance by such Stockholder of its obligations under this Agreement will not,
(i) assuming the filing of such reports as may be required under Sections 13(d) and 16 of the
Exchange Act, which such Stockholder will file, conflict with or violate any Law applicable to such
Stockholder or by which any of his or its assets or properties is bound or (ii) conflict with,
result in any breach of or constitute a default (or an event that with notice or lapse of time or
both would become a default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or require payment under, or result in the creation of any Lien on
the properties or assets of such Stockholder pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or obligation to which
such Stockholder is a party or by which such Stockholder or any of his or its assets or properties
is bound, except for any of the foregoing as could not reasonably be expected, either individually
or in the aggregate, to materially impair the ability of such Stockholder to perform his or its
obligations hereunder or to consummate the transactions contemplated hereby on a timely basis. The
execution and delivery of this Agreement by such Stockholder does not, and the performance of this
Agreement by such Stockholder will not, require any consent, approval, authorization or permit of,
or filing with or notification to any (i) Governmental Entity, except for filings that may be
required under the Exchange Act and the HSR Act or (ii) third party (including with respect to
individuals, any spouse, and with respect to trusts, any co-trustee or beneficiary).
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(d) Information. None of the information relating to such Stockholder provided by or
on behalf of such Stockholder in writing for inclusion in the Offer Documents, the Schedule 14D-9
or any proxy statement will, at the respective times such documents are filed with the SEC or are
first published, sent or given to stockholders of the Company, contain any untrue statement of
material fact or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which they were made, not
misleading.
(e) Reliance. Such Stockholder understands and acknowledges that Parent is entering
into the Merger Agreement in reliance upon such Stockholder’s execution and delivery of this
Agreement.
(f) Absence of Litigation. As of the date hereof, there is no suit, action,
investigation or proceeding pending or, to the knowledge of such Stockholder, threatened against
such Stockholder before or by any Governmental Entity that would impair the ability of such
Stockholder to perform its obligations hereunder or to consummate the transactions contemplated
hereby on a timely basis.
(g) Stockholder has Adequate Information. Such Stockholder is a sophisticated seller
with respect to the Shares and has adequate information concerning the business and financial
condition of the Company to make an informed decision regarding the sale of the Shares and has
independently and without reliance upon either Purchaser or Parent and based on such information as
such Stockholder has deemed appropriate, made its own analysis and decision to enter into this
Agreement. Such Stockholder acknowledges that neither Purchaser nor Parent has made and neither
makes any representation or warranty, whether express or implied, of any kind or character except
as expressly set forth in this Agreement. Each Stockholder acknowledges that the agreements
contained herein with respect to the Shares by such Stockholder is irrevocable.
2.2. Representations and Warranties of Parent and Purchaser. Each of Parent and Purchaser,
jointly and severally, hereby represents and warrants to the Stockholder as follows:
(a) Authorization; Validity of Agreement; Necessary Action. Each of Parent and
Purchaser is a corporation duly organized, validly existing and in good standing under the laws of
the State of Delaware. Each of Parent and Purchaser has all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation by Parent and Purchaser of the
transactions contemplated hereby have been duly authorized by all necessary action on the part of
Parent and Purchaser. This Agreement has been duly executed and delivered by Parent and Purchaser
and constitutes a valid and binding obligation of each of them, enforceable in accordance with its
terms (except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally and to general
equity principles).
(b) No Conflicts. The execution and delivery of this Agreement by Parent and Purchaser
does not, and the performance by each of them of its obligations under this Agreement will not, (i)
conflict with or violate any Law applicable to Parent and Purchaser or by which any
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of their assets or properties is bound or (ii) conflict with, result in any breach of or constitute
a default (or an event that with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or cancellation of, or require
payment under, or result in the creation of any Lien on the properties or assets of Parent or
Purchaser pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which Parent or Purchaser is a party or by
which Parent or Purchaser or any of their respective assets or properties is bound, except for any
of the foregoing in (i) or (ii) above as could not reasonably be expected, either individually or
in the aggregate, to materially impair the ability of Parent and Purchaser to perform their
obligations hereunder or to consummate the transactions contemplated hereby on a timely basis. The
execution and delivery of this Agreement by Parent and Purchaser does not, and the performance of
this Agreement by Parent and Purchaser will not, require any consent, approval, authorization or
permit of, or filing with or notification to any (i) Governmental Entity, except for filings that
may be required under the Exchange Act and the HSR Act or (ii) third party, except in the case of
(i) or (ii) above, as could not reasonably be expected, either individually or in the aggregate, to
materially impair the ability of Parent and Purchaser to perform their obligations hereunder or to
consummate the transactions contemplated hereby on a timely basis.
ARTICLE III
OTHER COVENANTS
3.1. Further Agreements of Stockholder. (a) The Stockholder hereby agrees, while this
Agreement is in effect, and except as expressly contemplated hereby, not to, directly or indirectly
(i) grant any proxies or enter into any voting trust or other agreement or arrangement with respect
to the voting of any Shares or (ii) sell, transfer, pledge, encumber, assign, distribute, gift or
otherwise dispose of (including by operation of law, other than by death of any person)
(collectively, a “Transfer”) or enter into any contract, option or other arrangement or
understanding with respect to any Transfer (whether by actual disposition or effective economic
disposition due to hedging, cash settlement or otherwise) of, any of the Existing Shares other
securities of the Company owned beneficially or of record as of the date hereof, any additional
shares of Common Stock and other securities of the Company acquired beneficially or of record by
the Stockholder after the date hereof, or any interest therein; provided, however, that this
Agreement shall not restrict Transfers to any members of such Stockholder’s immediate family, a
family trust of such Stockholder or a charitable institution, but only if in each case prior to the
effectiveness of the Transfer, the permitted transferee of such Shares agrees in writing to be
bound by the terms hereof (or an agreement that is substantively identical to this Agreement).
Such Stockholder shall not take any of the actions that the Company is prohibited from taking under
Section 6.4 of the Merger Agreement.
(b) In case of a stock dividend or distribution, or any change in Common Stock by reason of
any stock dividend or distribution, split-up, recapitalization, combination, exchange of shares or
the like, the term “Shares” shall be deemed to refer to and include the Shares as well as all such
stock dividends and distributions and any securities into which or for which any or all of the
Shares may be changed or exchanged or which are received in such transaction.
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(c) Such Stockholder agrees, while this Agreement is in effect, to notify Parent promptly in
writing of the number of any additional shares of Common Stock or other securities of the Company
acquired by such Stockholder, if any, after the date hereof.
(d) Such Stockholder agrees, while this Agreement is in effect, (i) not to take, agree or
commit to take any action that would reasonably be expected to make any representation and warranty
of such Stockholder, as applicable, contained in this Agreement inaccurate in any respect as of any
time during the term of this Agreement or (ii) to take all reasonable action necessary to prevent
any such representation or warranty from being inaccurate in any respect at any such time. Such
Stockholder further agrees that it shall use commercially reasonable efforts to cooperate with
Parent, as and to the extent reasonably requested by Parent, to effect the transactions
contemplated hereby including the Offer and the Merger.
(e) Such Stockholder hereby consents to and approves the actions taken by the Company Board in
approving the Merger Agreement, the Offer, the Merger and the other transactions contemplated by
the Merger Agreement. Each Stockholder hereby waives, and agrees not to exercise or assert, if
applicable, any appraisal rights under Section 262 of the DGCL in connection with the Merger and to
take all actions necessary to opt out of any class in any class action with respect to, any claim,
derivative or otherwise, against the Company or any of its subsidiaries (or any of their respective
successors) relating to the negotiation, execution and delivery of this Agreement or the Merger
Agreement or the consummation of the Merger or any of the other transactions contemplated hereby or
thereby.
ARTICLE IV
MISCELLANEOUS
4.1. Termination. This Agreement shall terminate automatically, without any action on the
part of any party hereto, upon the earlier to occur of (a) the Effective Time, (b) the termination
of the Merger Agreement pursuant to its terms and (c) any amendment to the Merger Agreement
executed after the date hereof that is material and adverse to a Stockholder. For purposes of this
Section 4.1, a material and adverse amendment to the Merger Agreement includes, without limitation,
any amendment, modification, change or waiver to the terms of the Merger Agreement that results in
any decrease in the Offer Price or any change in the form of consideration to be used to purchase
Shares. Upon such termination, no party shall have any further obligations or liabilities
hereunder except that (i) the obligations of the Stockholder under this Article IV shall survive
termination and (ii) such termination shall not relieve any party from liability for any breach of
this Agreement prior to such termination.
4.2. Stockholder Capacity. No person executing this Agreement, or any officer, director,
partner, employee, agent or representative of such Person, who is or becomes during the term of
this Agreement a director or officer of the Company shall be deemed to make any agreement or
understanding in this Agreement in such Person’s capacity as a director or officer of the Company.
Each Stockholder is entering into this Agreement solely in his capacity as the record holder or
beneficial owner of, or the trustee of a trust whose beneficiaries are the beneficial owners of,
such Stockholder’s Shares and nothing herein shall limit or affect any actions taken by a
Stockholder in his capacity as a director or officer of the Company.
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4.3. Notices. All notices, requests, claims, demands and other communications hereunder shall
be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by
delivery in person, by facsimile or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
if to Parent or Purchaser to:
Xxxxxxx Laboratories, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
with an additional copies (which shall not constitute notice) to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Xxxxxxx X. Xxxxxxxxx, Esq.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Xxxxxxx X. Xxxxxxxxx, Esq.
if to the Stockholder, at the address set forth under such Stockholder’s name on the
signature page to this Agreement.
4.4. Counterparts. This Agreement may be executed in several counterparts, each of which,
when so executed, shall be deemed to be an original, and such counterparts shall, together,
constitute and be one and the same instrument.
4.5. Entire Agreement. This Agreement (together with the Merger Agreement, to the extent
applicable) constitutes the entire agreement among the parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written and oral, among the
parties or any of them with respect to the subject matter hereof.
4.6. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS RULES OF
THE STATE OF DELAWARE OR ANY OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF
ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS,
FOR ITSELF AND ITS LEGAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, TO THE EXCLUSIVE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, OR IN THE EVENT THAT COURT
LACKS JURISDICTION TO HEAR THE CLAIM, IN NEW YORK STATE SUPREME COURT FOR NEW YORK COUNTY FOR ALL
PURPOSES IN CONNECTION WITH ANY ACTION OR PROCEEDING WHICH ARISES FROM OR RELATES TO THIS
AGREEMENT, AND
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HEREBY WAIVES ANY RIGHTS IT MAY HAVE TO PERSONAL SERVICE OF SUMMONS, COMPLAINT, OR OTHER
PROCESS IN CONNECTION THEREWITH, AND AGREES THAT SERVICE MAY BE MADE ON SUCH PARTY AND SENT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 4.3 HEREOF.
4.7. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY OR DISPUTE
THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS
OF THIS WAIVER, (iii) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS OF THIS SECTION 4.7.
4.8. Amendment. This Agreement may not be amended except by an instrument in writing signed
on behalf of each of the parties hereto.
4.9. Enforcement of the Agreement. The parties hereto agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is accordingly agreed that the parties
and other persons entitled to enforce this Agreement pursuant to this Agreement shall be entitled
to seek an injunction or injunctions to prevent breaches of this Agreement and to seek to enforce
specifically the terms and provisions hereof in any federal or state court located in New York (as
to which the parties hereby irrevocably agree to submit to jurisdiction for the purposes of such
action), this being in addition to any other remedy to which they are entitled at law or in equity.
4.10. Severability. Any term or provision of this Agreement that is determined by a court of
competent jurisdiction to be invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering
invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the
validity or enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction, and if any provision of this Agreement is determined to be so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is enforceable, in all
cases so long as neither the economic nor legal substance of the transactions contemplated hereby
is affected in any manner materially adverse to any party or its stockholders or limited partners.
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4.11. Assignment; Third Party Beneficiaries. Neither this Agreement nor any of the rights,
interests or obligations of any party hereunder shall be assigned by any of the parties hereto
(whether by operation of law or otherwise) without the prior written consent of the other party.
Any purported assignment without such consent shall be void. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and permitted assigns. Each Stockholder agrees that this Agreement and
the obligations hereunder shall attach to such Stockholder’s Shares and shall be binding upon any
Person to whom legal or beneficial ownership of such Shares shall pass, whether by operation of law
or otherwise, including such Stockholder’s heirs, guardians, administrators or successors. This
Agreement is not intended to confer upon any person other than the parties hereto any rights or
remedies hereunder.
4.12. No Waiver. The terms and provisions hereof may not be waived except by an instrument
signed on behalf of the party waiving compliance. The failure of any party to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect of this Agreement
at law or in equity, or to insist upon compliance by any other party with its obligations under
this Agreement, and any custom or practice of the parties at variance with the terms of this
Agreement, shall not constitute a waiver by such party of such party’s right to exercise any such
or other right, power or remedy or demand such compliance.
4.13. Further Assurances. Subject to the terms and conditions of this Agreement, the
Stockholder shall use his reasonable best efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, all things necessary to fulfill such Stockholder’s obligations under
this Agreement.
4.14. Stockholder Obligations Several and Not Joint. The obligations of the Stockholder
hereunder shall be several and not joint and no Stockholder shall be liable for any breach of the
terms of this Agreement by any other Stockholder.
4.15. Stop Transfer Instruction; Legends.
(a) Promptly following the date hereof, the Stockholder shall cause the Company to deliver
written instructions to the Company’s transfer agent stating that the Shares may not be sold,
transferred, pledged, encumbered, assigned, distributed, given as a gift or otherwise disposed of
during the term of this Agreement without the prior written consent of Parent, except as otherwise
provided in Section 1.1.
(b) Promptly following the date hereof, each Stockholder shall cause the Company to instruct
its transfer agent to place a legend on the certificates (to the extent the shares are
certificated) representing the Existing Shares and on any other securities acquired by the
Stockholder after the date hereof as follows: “The Securities represented by this certificate are
subject to restrictions on transfer and may not be sold, transferred, pledged, encumbered,
assigned, distributed, given as a gift or otherwise disposed of except in accordance with and
subject to the terms and conditions of the Stockholder Support Agreement, dated June 23, 2008,
between the registered holder hereof and Xxxxxxx Laboratories, Inc.”
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(c) The parties hereto agree that the legend set forth above shall be removed and the
restrictions set forth in the legend above shall be of no further force and effect, in each case,
upon termination of this Agreement in accordance with Section 4.1 hereof.
[Remainder of Page Left Blank Intentionally]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the
date first written above by their respective officers thereunto duly authorized.
| XXXXXXX LABORATORIES, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Executive Vice President | |||
| GEERT CAUWENBERGH, PH.D |
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| /s/ Geert Cauwenbergh | ||||
| Xx. Xxxxx Xxxxxxxxxxx, Ph.D. | ||||
| Title:
Director and Founder of barrier Therapeutics, Inc. Address: 0 Xxxxxx Xxxxx, Xxxxxxxxxx, XX 00000 Number of shares of Common Stock owned beneficially: 624,613 Options to purchase shares of Common Stock owned beneficially: 485,500 |
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