SC 13D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HUFKj9jVx78hlZ4KBmXmk3q6/oJ73peCVVd/qPgmzQRTP334HkpzIiPLAN/Wb1Gh mIcstrLb+/FdPwr8fgJPNw== 0000950123-08-007588.txt : 20080703 0000950123-08-007588.hdr.sgml : 20080703 20080703162438 ACCESSION NUMBER: 0000950123-08-007588 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 10 FILED AS OF DATE: 20080703 DATE AS OF CHANGE: 20080703 GROUP MEMBERS: CHARLES W. STIEFEL SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BARRIER THERAPEUTICS INC CENTRAL INDEX KEY: 0001173657 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 223828030 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-79875 FILM NUMBER: 08939014 BUSINESS ADDRESS: STREET 1: 600 COLLEGE ROAD EAST STREET 2: SUITE 3200 CITY: PRINCETON STATE: NJ ZIP: 08540 BUSINESS PHONE: 6099451200 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Stiefel Laboratories, Inc. CENTRAL INDEX KEY: 0001378981 IRS NUMBER: 141255448 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 255 ALHAMBRA CIRCLE STREET 2: SUITE 1000 CITY: CORAL GABLES STATE: FL ZIP: 33134 BUSINESS PHONE: (305) 443-3800 MAIL ADDRESS: STREET 1: 255 ALHAMBRA CIRCLE STREET 2: SUITE 1000 CITY: CORAL GABLES STATE: FL ZIP: 33134 SC 13D 1 y62270sc13d.htm SCHEDULE 13D SC 13D

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

Barrier Therapeutics, Inc.

(Name of Issuer)

Common Stock, $0.0001 par value per share

(Title of Class of Securities)

06850R108

(CUSIP Number)

Devin Buckley
Stiefel Laboratories, Inc.
255 Alhambra Circle
Suite 1000
Coral Gables, FL 33134
(305) 443-3800

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

Copies to:
Gregory B. Astrachan
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
(212) 728-8000

June 23, 2008

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No.

06850R108

SCHEDULE 13D

Page

Pages

NAME OF REPORTING PERSON

Stiefel Laboratories, Inc.

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a) o

(b) þ

SEC USE ONLY

SOURCE OF FUNDS

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

CITIZENSHIP OR PLACE OF ORGANIZATION

Delaware

SOLE VOTING POWER

NUMBER OF

0 (See Item 5)

SHARED VOTING POWER

BENEFICIALLY

OWNED BY

3,571,922 (See Item 5)

EACH

SOLE DISPOSITIVE POWER

REPORTING

PERSON

0 (See Item 5)

WITH

SHARED DISPOSITIVE POWER

3,571,922 (See Item 5)

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

3,571,922

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

10.1% (See Item 5)

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)


CUSIP No.		06850R108		Page		3		of		11	Pages

NAME OF REPORTING PERSON

Charles W. Stiefel

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a) o

(b) þ

SEC USE ONLY

SOURCE OF FUNDS

AF (See Item 3)

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

CITIZENSHIP OR PLACE OF ORGANIZATION

United States of America

SOLE VOTING POWER

NUMBER OF

SHARED VOTING POWER

BENEFICIALLY

OWNED BY

3,571,922 (See Item 5)

EACH

SOLE DISPOSITIVE POWER

REPORTING

PERSON

WITH

SHARED DISPOSITIVE POWER

3,571,922 (See Item 5)

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

3,571,922 (See Item 5)

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

10.1% (See Item 5)

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

TABLE OF CONTENTS


	Item 1. Security and the Issuer
	Item 2. Identity and Background
	Item 3. Source and Amount of Funds or Other Consideration
	Item 4. Purpose of Transaction
	Item 5. Interest in Securities of the Issuer
	Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
	Item 7. Material to be Filed as Exhibits
SIGNATURES
EX-99.1: PRESS RELEASE
EX-99.3: STOCKHOLDER SUPPORT AGREEMENT
EX-99.4: STOCKHOLDER SUPPORT AGREEMENT
EX-99.5: CONFIDENTIALITY AND STANDSTILL AGREEMENT
EX-99.6: JOINT FILING AGREEMENT


Item 1.		Security and the Issuer

This statement on Schedule 13D relates to the common stock, par value $0.0001 per share (the “Common Stock”), of Barrier Therapeutics, Inc., a Delaware corporation (the “Issuer”), and is being filed pursuant to Rule 13d-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The principal executive officers of the Issuer are located at 600 College Road East, Suite 3200, Princeton, NJ 08540.


Item 2.		Identity and Background

This statement is filed on behalf of Stiefel Laboratories, Inc., a Delaware corporation (“Stiefel”) and Charles W. Stiefel (collectively, the “Reporting Persons”). The address of the principal business and principal office of Stiefel is 255 Alhambra Circle, Suite 1000, Coral Gables, FL 33134. The principal business of Stiefel is the manufacture and marketing of a variety of prescription and non-prescription dermatological products. Charles W. Stiefel is a citizen of the United States of America. Charles W. Stiefel is the Chairman of the Board and Chief Executive Officer of Stiefel. Charles W. Stiefel, though his direct ownership of a majority of outstanding Class B shares of Stiefel (the Class B shares are entitled to elect a majority of the board of directors of Stiefel), and his ability pursuant to certain other arrangements to direct the voting of certain additional Class A and Class B shares of Stiefel, may be deemed to control Stiefel. As a result, Charles W. Stiefel may be deemed to share beneficial ownership of all shares of Common Stock beneficially owned by Stiefel.

The names, residence or business address, citizenships and present principal occupations or employment of the executive officers and directors of Stiefel are set forth in Annex A hereto.

During the last five years, none of the Reporting Persons nor, to the best knowledge of Stiefel and Charles W. Stiefel, any person named in Annex A, has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violations with respect to such laws.


Item 3.		Source and Amount of Funds or Other Consideration.

On June 23, 2008, Stiefel entered into an Agreement and Plan of Merger (the “Merger Agreement”) with the Issuer and Bengal Acquisition Inc., a Delaware corporation and wholly-owned subsidiary of Stiefel (“Purchaser”), pursuant to which (A) Stiefel and Purchaser agreed to offer to purchase for cash all outstanding shares of Common Stock of the Issuer at a price of $4.15 per share, net to the seller in cash, without interest thereon, subject to reduction for (i) any dividends or other distributions declared thereon between June 23, 2008 and the time of the initial acceptance for payment by Purchaser of any validly tendered and not properly withdrawn shares of Common Stock pursuant to the Offer (as defined below) and (ii) any applicable federal

back-up withholding or other taxes payable by such holder, if any, upon the terms and subject to the conditions set forth in the offer to purchase and in the related letter of transmittal (which, together with any amendments or supplements thereto, collectively constitute the “Offer”), and (B) upon the terms and subject to the conditions of the Merger Agreement, the parties agreed that after the completion of the Offer and the satisfaction or waiver of certain conditions, Purchaser will merge (the “Merger”) with and into the Issuer, with the Issuer continuing as the surviving corporation (the “Surviving Corporation”).

At the effective time of the Merger, each share of Common Stock issued and outstanding immediately prior to the effective time of the Merger (other than shares held by Stiefel, Purchaser and the Issuer, and shares subject to appraisal rights) will be converted into the right to receive $4.15 per share net in cash without interest thereon, less (i) any dividends or other distributions declared thereon between June 23, 2008 and the effective time of the Merger and (ii) any applicable federal back-up withholding or other taxes payable by such holder.

It is currently anticipated that the cash consideration payable by Stiefel to holders of Common Stock in the Offer and the Merger pursuant to the terms of the Merger Agreement will be financed through Stiefel’s available working capital and other sources of liquidity.

Under the terms of the Merger Agreement, upon the time of the initial acceptance for payment by Purchaser of any validly tendered and not properly withdrawn shares of Common Stock pursuant to the Offer, Stiefel will be entitled to designate for appointment to the board of directors of the Issuer a pro rata number of directors based upon the percentage that the shares of Common Stock owned by Stiefel and its affiliates bears to the total number of shares of Common Stock then-outstanding (including shares of Common Stock accepted for payment in the Offer) subject to the requirement that a minimum of two “independent” members of the current board of directors of the Issuer remain in office until the consummation of the Merger. Pursuant to the Merger Agreement, at the effective time of the Merger, (i) the directors of Purchaser immediately prior to the Merger will be the directors of the Surviving Company, (ii) the officers of the Issuer immediately prior to the Merger will be the officers of the Surviving Corporation, (iii) the certificate of incorporation and the bylaws of Purchaser in effect immediately prior to the Merger will be the certificate of incorporation and bylaws of the Surviving Corporation, except that the name of the Surviving Corporation will be the name of the Issuer. After the completion of the Merger, Stiefel expects that the Issuer’s Common Stock will cease to be listed on The NASDAQ Stock Market, LLC and subsequently will cease to be registered under the Exchange Act.

In connection with the execution and delivery of the Merger Agreement, Stiefel entered into a tender and support agreement, dated as of June 23, 2008 (the “Cauwenbergh Support Agreement”), with Geert Cauwenbergh Ph.D., solely in such stockholder’s capacity as a stockholder of the Issuer, and Stiefel entered into a tender and support agreement, effective as of June 23, 2008 (the “JPMP Support Agreement” and, together with the Cauwenbergh Support Agreement, the “Stockholder

Support Agreements”), with JPMP Capital Corp. and its affiliates (“JPMP” and, together with Dr. Cauwenbergh, the “Supporting Stockholders”), solely in such stockholder’s capacity as a stockholder of the Issuer. Pursuant to each Stockholder Support Agreement, each of the Supporting Stockholders has agreed, among other things (a) to tender (and not withdraw) all shares of Common Stock beneficially owned or thereafter acquired by them in the Offer and to (b) to vote such shares of Common Stock in support of the Merger and against any competing transaction unless such Stockholder Support Agreement is otherwise terminated. In addition, pursuant to the Cauwenbergh Support Agreement, Dr. Cauwenbergh has agreed to appoint Purchaser as its proxy with respect to the voting of the shares of Common Stock beneficially owned by him.

In connection with the process leading to the execution of the Merger Agreement, the Issuer and Stiefel entered into a Confidentiality and Standstill Agreement dated as of April 24, 2008 (the “Confidentiality and Standstill Agreement”). Pursuant to the Confidentiality and Standstill Agreement, as a condition to being furnished confidential information by the Issuer, Stiefel agreed, among other things, to use such confidential information solely for the purpose of evaluating a transaction between the Issuer and Stiefel. In addition, Stiefel agreed that, as of the date thereof and for a period of six (6) months from the date the parties terminate discussions concerning a potential transaction, Stiefel would not (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, to cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, directly or indirectly, (i) to acquire beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of the Issuer or assets of the Issuer; (ii) any tender or exchange offer, merger or other business combination involving the Issuer; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Issuer; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Issuer; (b) form, join or in any way participate in a “group” (as defined under the Exchange Act) or otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors of the Issuer or policies of the Issuer; (c) take any action which might force the Issuer to make a public announcement regarding any of the types of matters set forth in (a) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing.

On June 23, 2008, Stiefel issued a press release (the “Press Release”) announcing the execution of the Merger Agreement.

The descriptions of the Press Release, the Merger Agreement, the Cauwenbergh Support Agreement, the JPMP Support Agreement and the Confidentiality and Standstill Agreement do not purport to be complete and are qualified in their entirety by reference to the Press Release, the Merger Agreement, the Cauwenbergh Support Agreement, the JPMP Support Agreement and the Confidentiality and Standstill Agreement, which are referenced herein as Exhibit 99.1, Exhibit 99.2, Exhibit 99.3, Exhibit 99.4 and Exhbit 99.5 respectively, and are incorporated by reference into this Item 3.


Item 4.		Purpose of Transaction.

The purpose of the Offer and the Merger is for Stiefel, through Purchaser, to acquire control of, and the entire equity interest in, the Issuer. The Supporting Stockholders agreed to enter into the Stockholder Support Agreements to induce Stiefel to enter into the Merger Agreement and to consummate the transactions contemplated by the Merger Agreement, including the Offer and the Merger.

Other than pursuant to the Merger Agreement and the Stockholder Support Agreements, as described in Items 3 and 6, neither Stiefel nor, to the best knowledge of Stiefel, any person listed in Annex A hereto, has any plans or proposals which relate to or would result in: (a) the acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (d) any change in the present board of directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (e) any material change in the present capitalization or dividend policy of the Issuer; (f) any other material change in the Issuer’s business or corporate structure; (g) changes in the Issuer’s charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person; (h) causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or (j) any action similar to any of those enumerated above (although Stiefel reserves the right to develop such plans).


Item 5.		Interest in Securities of the Issuer.

(a) and (b). By virtue of the Stockholder Support Agreements, as of June 23, 2008 the Reporting Persons may be deemed to share with the Supporting Stockholders the power to vote or direct the voting or disposition of 3,281,452 issued and outstanding shares of Common Stock and 290,470 shares of Common Stock issuable upon the exercise of options, beneficially owned by the Supporting Stockholders, to purchase shares of Common Stock (collectively, the “Support Agreements Shares”). Neither Reporting Person is entitled to any other rights as a stockholder of the Issuer as to the Support Agreements Shares, and does not have any right to dispose or direct the disposition of the Support Agreements Shares, except for the restrictions described in Item 6. The Support Agreements Shares represent approximately 10.1% of the issued and outstanding shares of Common Stock as of June 16, 2008, as represented by the Issuer in the Merger Agreement.

Pursuant to Rule 13d-4 under the Exchange Act, each Reporting Person hereby states that this Schedule 13D shall not be deemed an admission that such Reporting Person is, for the purposes of Section 13(d) of the Exchange Act, the beneficial owner of

the Support Agreements Shares, and each Reporting Person expressly disclaims beneficial ownership of the Support Agreements Shares.

Except as described above, to the best knowledge of each Reporting Person, no shares of Common Stock are beneficially owned by any of the persons named in Annex A.

(c). Other than with respect to the Support Agreements Shares pursuant to the execution of Stockholder Support Agreements, neither Reporting Person, nor, to the best knowledge of such Reporting Person, any person named in Annex A, has effected any transaction in the shares of Common Stock during the past 60 days.

(d) and (e). Not applicable.


Item 6.		Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Pursuant to each of the Stockholder Support Agreements, and subject to the terms and conditions contained therein, each of the Supporting Stockholders has agreed, among other things (a) to tender (and not withdraw) all shares of Common Stock beneficially owned or thereafter acquired by them in the Offer and to (b) to vote such shares of Common Stock in support of the Merger and against any competing transaction. In addition, pursuant to the Cauwenbergh Support Agreement, Dr. Cauwenbergh has agreed to appoint Purchaser as its proxy with respect to the voting of the shares of Common Stock beneficially owned by him.

The Cauwenbergh Support Agreement and the JPMP Support Agreement provide that each agreement will terminate immediately upon the earliest of: (i) the effective time of the Merger; (ii) the termination of the Merger Agreement; and (iii) any amendment to the Merger Agreement executed after June 23, 2008 that is material and adverse to the Supporting Stockholders.

Pursuant to the Confidentiality and Standstill Agreement, Stiefel agreed that, as of the date thereof and for a period of six (6) months from the date the parties terminate discussions concerning a potential transaction, Stiefel would not (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, to cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, directly or indirectly, (i) to acquire beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of the Issuer or assets of the Issuer; (ii) any tender or exchange offer, merger or other business combination involving the Issuer; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Issuer; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Issuer; (b) form, join or in any way participate in a “group” (as defined under the Exchange Act) or otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors of the Issuer or policies of the Issuer; (c) take any action which might force the Issuer to make a public

announcement regarding any of the types of matters set forth in (a) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing.

The descriptions of the Cauwenbergh Support Agreement, the JPMP Support Agreement and the Confidentiality and Standstill Agreement do not purport to be complete and are qualified in their entirety by reference to Cauwenbergh Support Agreement, the JPMP Support Agreement and the Confidentiality and Standstill Agreement which are attached hereto as Exhibit 99.3, Exhibit 99.4 and Exhibit 99.5, respectively, and are incorporated by reference into this Item 6.

Except for the Stockholder Support Agreements, the Confidentiality and Standstill Agreement and the Merger Agreement, there are no contracts, arrangements, understandings or relationships among the persons named in Item 2 or between such persons and any other person with respect to any securities of the Issuer.

Item 7. Material to be Filed as Exhibits


Exhibit		Description

99.1		Press Release, dated June 23, 2008, issued by Stiefel Laboratories, Inc.

99.2		Agreement and Plan of Merger, dated as of June 23, 2008, by and among Stiefel Laboratories, Inc., Bengal Acquisition Inc. and Barrier Therapeutics, Inc. (incorporated herein by reference to Exhibit 2.1 of the Current Report on Form 8-K filed by Barrier Therapeutics, Inc. on June 24, 2008).

99.3		Stockholder Support Agreement, dated as of June 23, 2008, by and between Stiefel Laboratories, Inc. and Geert Cauwenbergh Ph.D.

99.4		Stockholder Support Agreement, dated as of June 30, 2008, by and between Stiefel Laboratories, Inc. and JPMP Capital Corp.

99.5		Confidentiality and Standstill Agreement, dated as of April 24, 2008, by and between Stiefel Laboratories, Inc. and Barrier Therapeutics, Inc.

99.6		Joint Filing Agreement

SIGNATURES

After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

DATED: July 3, 2008


		STIEFEL LABORATORIES, INC.

		By: Name:		/s/ Devin Buckley Devin Buckley
		Title:		Senior Vice President and General Counsel

		/s/ CHARLES W. STIEFEL

		CHARLES W. STIEFEL

Annex A

The name, business address and present principal occupation or employment of each of the directors and executive officers of Stiefel are as set forth below. Each person’s business address is c/o Stiefel Laboratories, Inc., 255 Alhambra Circle, Coral Gables, Florida 33134. Except as indicated below, each person is a citizen of the United States of America.

Directors of Stiefel


Name		Principal Occupation
Richard J. MacKay (1)		Vice Chairman of Stiefel, President, Stiefel Canada, Inc.
Gabriel McGlynn (2)		Senior Vice President, Eurasia of Stiefel Laboratories (UK) Limited
Charles W. Stiefel		Chairman of the Board & Chief Executive Officer of Stiefel
Todd R. Stiefel		Chief Strategy Officer of Stiefel
Brent D. Stiefel		Chief of Pharmaceutical Operations of Stiefel
William D. Humphries		President of Stiefel
Jeffrey S. Thompson		Operating Partner, Healthcare Products Group, HealthEdge Investment Partners, LLC
Catherine M. Stiefel		Certified Public Accountant (Retired)
Anjan Mukherjee		Managing Director, The Blackstone Group


(1)		Citizen of Canada

(2)		Citizen of Ireland

Executive Officers of Stiefel


Name		Title at Stiefel (Principal Occupation)
Charles W. Stiefel		Chairman of the Board and CEO
William D. Humphries		President
Brent D. Stiefel		Chief of Pharmaceutical Operations
Todd R. Stiefel		Chief Strategy Officer
Devin G. Buckley		Senior Vice President and General Counsel
Richard J. McKay (3)		Vice Chairman of Stiefel, President, Stiefel Canada, Inc.
Gabriel McGlynn (4)		Senior Vice President, Eurasia of Stiefel Laboratories (UK) Limited
Michael T. Cornelius		Senior Vice President and Chief Financial Officer
Gavin Corcoran, M.D. (5)		Chief Scientific Officer
Stephen B. Karasick		Senior Vice President, People and Technology
Jeffrey S. Klimaski		Vice President, Global Ethics & Compliance Officer


(3)		Citizen of Canada

(4)		Citizen of Ireland

(5)		Citizen of United States and South Africa

EX-99.1 2 y62270exv99w1.htm EX-99.1: PRESS RELEASE EX-99.1

EXHIBIT 99.1

News Release


Media Contacts:	Erin Bacher	Amy Button
	Associate Director	Coordinator
	Global Public Relations	Global Public Relations
	erin.bacher@stiefel.com	amy.button@stiefel.com
	(678) 777-6378 ph	(678) 714-4153 ph

Barrier Therapeutics to Merge Into Stiefel Laboratories
Acquisition to enhance industry leader’s dermatological portfolio

Coral Gables, Fla. — June 23, 2008 — Stiefel Laboratories Inc., the world’s largest independent pharmaceutical company specializing in dermatology, today announced it has signed a definitive merger agreement, pursuant to which Stiefel Laboratories will acquire Barrier Therapeutics, Inc. (“Barrier Therapeutics”) (NASDAQ: BTRX), through a two-step transaction, a tender offer followed by a merger of Barrier Therapeutics into a wholly-owned subsidiary of Stiefel Laboratories, at a price of $4.15 in cash, per share of Barrier Therapeutics’ common stock. The transaction, valued at approximately $148 million, is subject to the valid tender of a majority of Barrier Therapeutics’ fully diluted common stock, regulatory approvals and other customary conditions, but is not subject to any financing conditions. The price of $4.15 per share of Barrier Therapeutics’ common stock represents a premium of approximately 73% to Barrier Therapeutics’ average closing price for the past 30 days. The parties expect the transaction to close by the end of the third quarter of 2008.

The Board of Directors of Barrier Therapeutics has unanimously approved the definitive merger agreement and the transactions contemplated thereby and has resolved to recommend that Barrier Therapeutics’ stockholders tender their shares in connection with the tender offer contemplated by the definitive merger agreement.

This acquisition underscores Stiefel Laboratories’ continuing efforts to search for and develop premium-quality, innovative dermatology products and to focus on providing a superior customer experience in global therapeutic and aesthetic dermatology.

“This acquisition demonstrates our continued commitment to advancing the field of therapeutic dermatology,” said Charles W. Stiefel, chairman and chief executive officer of Stiefel Laboratories. “We are very impressed with Barrier Therapeutics’ innovative products and pipeline. This strategic move will further expand our oral and topical product portfolio in development and increase our sales of novel treatments for skin

conditions.”

Barrier Therapeutics currently markets three pharmaceutical products. In addition to these marketed products, the company has other product candidates in various stages of development for the treatment of a range of dermatological conditions.

“We are very proud of the accomplishments of the entire Barrier Therapeutics team since we were founded in 2002, and we are pleased that Stiefel Laboratories recognizes the value that we have created,” said Al Altomari, Chief Executive Officer of Barrier Therapeutics. “We believe that this transaction provides substantial value to our stockholders. We believe that Barrier Therapeutics’ product portfolio and innovative R&D pipeline candidates are among the greatest assets in dermatology and will strengthen Stiefel Laboratories’ position in the global dermatology market.”

J.P. Morgan Securities Inc. is acting as exclusive financial advisor to Barrier Therapeutics, and Morgan, Lewis & Bockius, LLP is acting as Barrier Therapeutics’ legal counsel in the transaction. Deutsche Bank Securities Inc. is acting as exclusive financial advisor to Stiefel Laboratories, and Willkie Farr & Gallagher LLP is acting as Stiefel Laboratories’ legal counsel in the transaction.

About Barrier Therapeutics

Barrier Therapeutics is a pharmaceutical company focused on the development and commercialization of products in the field of dermatology. Barrier Therapeutics currently markets three pharmaceutical products in the United States: Xolegel^® (ketoconazole, USP) Gel, 2%, for seborrheic dermatitis; Vusion^® (0.25% miconazole nitrate, 15% zinc oxide, 81.35% white petrolatum) Ointment, for diaper dermatitis complicated by documented candidiasis; and Solagé^® (mequinol 2.0%, tretinoin 0.01%) Topical Solution, for solar lentigines. Barrier Therapeutics has other product candidates in various stages of clinical development for the treatment of a range of dermatological conditions, including onychomycosis, psoriasis, acne, skin allergies, and acute fungal infections. The company is headquartered in Princeton, New Jersey and has a wholly-owned subsidiary in Geel, Belgium. More information about Barrier Therapeutics can be found on its corporate website at: www.barriertherapeutics.com .

Xolegel, Vusion and Solagé are trademarks of Barrier Therapeutics.

About Stiefel Laboratories, Inc.

Founded in 1847, Stiefel Laboratories (a privately held company) is the world’s largest independent pharmaceutical company specializing in dermatology. The company manufactures and markets a variety of prescription and non-prescription dermatological products. Some of the newest and best-known brands include Duac® Topical Gel (clindamycin, 1% — benzoyl peroxide, 5%) available in the Duac® Care System (CS); Evoclin® (clindamycin phosphate) Foam, 1%; Luxiq® (betamethasone valerate) Foam, 0.12%; MimyX® Cream; Olux® (clobetasol propionate) Foam, 0.05% and Olux-E®

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(clobetasol propionate) Foam, 0.05% also available in the Olux® / Olux-E® COMPLETE PACK; Soriatane® (acitretin) Capsules available in the Soriatane® CK CONVENIENCE KIT; Verdeso® (desonide) Foam, 0.05%; Brevoxyl®-4 Creamy Wash (benzoyl peroxide 4%) and Brevoxyl®-8 Creamy Wash (benzoyl peroxide 8%) packaged in the Brevoxyl® Acne Wash Kit; Extina® (ketoconazole) Foam, 2%; Oilatum® Cleansing Bar; Physiogel® Cream; Stieprox® (ciclopirox olamine) Shampoo; REVALÉSKIN™ Skin Care Products; and Sarna® Lotion. Its wholly-owned global network is comprised of more than 30 subsidiaries, manufacturing plants in six countries, research and development facilities on four continents, and products marketed in more than 100 countries around the world.

Stiefel Laboratories supplements its R&D efforts by seeking strategic partnerships and acquisitions around the world. To learn more about Stiefel Laboratories, Inc. visit www.stiefel.com.

Important Information About the Tender Offer

This announcement and the description contained herein are informational purposes only and are not an offer to purchase or a solicitation of an offer to sell securities of Barrier Therapeutics. The tender offer described herein has not yet been commenced. At the time the tender offer is commenced, Stiefel Laboratories and its wholly-owned subsidiary intend to file a tender offer statement on a Schedule TO containing an offer to purchase, a letter of transmittal and other related documents with the Securities and Exchange Commission. At the time the tender offer is commenced, Barrier Therapeutics intends to file with the Securities and Exchange Commission a solicitation/recommendation statement on Schedule 14D-9 and, if required, will file a proxy statement or information statement with the Securities and Exchange Commission in connection with the merger, the second step of the transaction, at a later date. Such documents will be mailed to stockholders of record and will also be made available for distribution to beneficial owners of common stock of Barrier Therapeutics. The solicitation of offers to buy common stock of Barrier Therapeutics will only be made pursuant to the offer to purchase, the letter of transmittal and related documents. Stockholders are advised to read the offer to purchase, the letter of transmittal, the solicitation/recommendation statement, the proxy statement, the information statement and all related documents, if and when such documents are filed and become available, as they will contain important information about the tender offer and proposed merger. Stockholders can obtain these documents when they are filed and become available free of charge from the Securities and Exchange Commission’s website at www.sec.gov, or from the information agent Stiefel Laboratories selects. In addition, copies of the solicitation/recommendation statement, the proxy statement and other filings containing information about Barrier Therapeutics, the tender offer and the merger may be obtained, if and when available, without charge, by directing a request to Barrier Therapeutics, Attention: Dennis P. Reilly at 600 College Road East, Suite 3200, Princeton, New Jersey 08540, or on Barrier Therapeutics’ corporate website at www.barriertherapeutics.com.

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EX-99.3 3 y62270exv99w3.htm EX-99.3: STOCKHOLDER SUPPORT AGREEMENT EX-99.3

Exhibit 99.3

STOCKHOLDER SUPPORT AGREEMENT

STOCKHOLDER SUPPORT AGREEMENT, dated as of June 23, 2008 (this “Agreement”), by and among Stiefel 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

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.

(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).

(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).

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.

(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.

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:

Stiefel Laboratories, Inc.
255 Alhambra Circle
Coral Gables, Forida 33134
Facsimile: (305) 443-3467
Attention: Chief Executive Officer

with an additional copies (which shall not constitute notice) to:

Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
Facsimile: (212) 728-8111
Attention: William J. Grant, Esq.
Gregory B. Astrachan, 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

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.

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 Stiefel Laboratories, Inc.”

(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]

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.


STIEFEL LABORATORIES, INC.
By:	/s/ Brent D. Stiefel
	Name:	Brent D. Stiefel
	Title:	Executive Vice President


	GEERT CAUWENBERGH, PH.D
	/s/ Geert Cauwenbergh
	Dr. Geert Cauwenbergh, Ph.D.
	Title: Director and Founder of barrier Therapeutics, Inc. Address: 1 Stults Drive, Plainsboro, NJ 08536 Number of shares of Common Stock owned beneficially: 624,613 Options to purchase shares of Common Stock owned beneficially: 485,500

EX-99.4 4 y62270exv99w4.htm EX-99.4: STOCKHOLDER SUPPORT AGREEMENT EX-99.4

Exhibit 99.4

STOCKHOLDER SUPPORT AGREEMENT

STOCKHOLDER SUPPORT AGREEMENT, dated as of June 30, 2008 (this “Agreement”), by and among Stiefel Laboratories, Inc., a Delaware corporation (“Parent”), and JPMP Capital Corp. (the “Stockholder”). This Agreement shall be effective as of June 23, 2008. 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, as a condition to its willingness to enter into the Merger Agreement, Parent has requested that the Stockholder enter into this Agreement.

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 the 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 the Company, 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.

(a) appear at each such meeting or otherwise cause the Shares owned beneficially or of record by the Stockholder to be counted as present thereat for purposes of calculating a quorum; and

(b) 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 it 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.

ARTICLE II

REPRESENTATIONS AND WARRANTIES

2.1. Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent as follows:

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.

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).

(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.

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:

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 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

ARTICLE IV

MISCELLANEOUS

if to Parent or Purchaser to:

Stiefel Laboratories, Inc.
255 Alhambra Circle
Coral Gables, Forida 33134
Facsimile: (305) 443-3467
Attention: Chief Executive Officer

with an additional copies (which shall not constitute notice) to:

Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
Facsimile: (212) 728-8111
Attention: William J. Grant, Esq.
Gregory B. Astrachan, Esq.

if to the Stockholder, at the address set forth under such Stockholder’s name on the signature page to this Agreement.

4.6. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAWS RULES ANY

OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE. EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS, FOR ITSELF AND ITS LEGAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, TO THE EXCLUSIVE JURISDICTION OF A COURT LOCATED IN THE STATE OF DELAWARE FOR ALL PURPOSES IN CONNECTION WITH ANY ACTION OR PROCEEDING WHICH ARISES FROM OR RELATES TO THIS AGREEMENT, AND 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.

4.8. Amendment. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto.

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.

4.13. Further Assurances. Subject to the terms and conditions of this Agreement, the Stockholder shall use its 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 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.

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 30, 2008, between the registered holder hereof and Stiefel Laboratories, Inc.”

[Remainder of Page Left Blank Intentionally]

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.


		STIEFEL LABORATORIES, INC.

		By:		/s/ Brent D. Stiefel

		Name:		Brent D. Stiefel
		Title:		Executive Vice President

		J.P. MORGAN PARTNERS (BHCA), L.P.
		By: Panorama Capital, LLC, as Attorney in Fact

		By:		/s/ Srinivas Akkaraju

		Name:		Srinivas Akkaraju
		Title:		Managing Director

		Number of shares of Common Stock owned beneficially: 1,943,169

		Options to purchase shares of Common Stock owned beneficially: 20,000

		J.P. MORGAN PARTNERS GLOBAL INVESTORS (CAYMAN), L.P.
		By: Panorama Capital, LLC, as Attorney in Fact

		By:		/s/ Srinivas Akkaraju

		Name:		Srinivas Akkaraju
		Title:		Managing Director

		Number of shares of Common Stock owned beneficially: 168,617

		Options to purchase shares of Common Stock owned beneficially: 0


		J.P. MORGAN PARTNERS GLOBAL INVESTORS (CAYMAN) II, L.P.
		By: Panorama Capital, LLC, as Attorney in Fact

		By:		/s/ Srinivas Akkaraju

		Name:		Srinivas Akkaraju
		Title:		Managing Director

		Number of shares of Common Stock owned beneficially: 18,801

		Options to purchase shares of Common Stock owned beneficially: 0

		J.P. MORGAN PARTNERS GLOBAL INVESTORS, L.P.
		By: Panorama Capital, LLC, as Attorney in Fact

		By:		/s/ Srinivas Akkaraju

		Name:		Srinivas Akkaraju
		Title:		Managing Director

		Number of shares of Common Stock owned beneficially: 322,807

		Options to purchase shares of Common Stock owned beneficially: 0


		J.P. MORGAN PARTNERS GLOBAL INVESTORS A, L.P.
		By: Panorama Capital, LLC, as Attorney in Fact

		By:		/s/ Srinivas Akkaraju

		Name:		Srinivas Akkaraju
		Title:		Managing Director

		Number of shares of Common Stock owned beneficially: 46,312

		Options to purchase shares of Common Stock owned beneficially: 0

		J.P. MORGAN PARTNERS GLOBAL INVESTORS (SELLDOWN), L.P.
		By: Panorama Capital, LLC, as Attorney in Fact

		By:		/s/ Srinivas Akkaraju

		Name:		Srinivas Akkaraju
		Title:		Managing Director

		Number of shares of Common Stock owned beneficially: 147,133

		Options to purchase shares of Common Stock owned beneficially: 0

EX-99.5 5 y62270exv99w5.htm EX-99.5: CONFIDENTIALITY AND STANDSTILL AGREEMENT EX-99.5

Exhibit 99.5

April 24, 2008

PRIVATE AND CONFIDENTIAL

Stiefel Laboratories, Inc.
255 Alhambra Circle — Suite 1000
Coral Gables, FL 33134
Attention: Brent Stiefel

Ladies and Gentlemen:

In connection with your consideration of a possible transaction (a “Transaction”) with Barrier Therapeutics, Inc. (collectively with its subsidiaries and affiliates, the “Company”), the Company is prepared to make available to you certain information concerning the business, financial condition, operations, assets and liabilities of the Company. As a condition to such information being furnished to you, you agree to treat such information in accordance with the provisions of this letter agreement (the “Agreement”) and to take or abstain from taking certain other actions hereinafter set forth.

1. DEFINITION OF EVALUATION MATERIAL. The term “Evaluation Material” means all information concerning the Company (whether prepared by the Company, its advisors or otherwise and irrespective of the form of communication) that is furnished to you or to your Representatives (as defined below) now or in the future by or on behalf of the Company. “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to you or your Representatives (as defined below) pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this Agreement, (ii) was within your possession prior to its being furnished to you by or on behalf of the Company, provided that the source of such information is not bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information, (iii) is or has been independently developed by you or your Representatives without any reference to Evaluation Material or (iv) becomes available to you on a non-confidential basis from a source other than the Company or any of its representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information.

2. USE OF EVALUATION MATERIAL AND CONFIDENTIALITY.

(a) You hereby agree that the Evaluation Material will be used for the sole purpose of evaluating a Transaction. Further, you agree that any of such Evaluation Material may be


600 College Road East		Princeton, NJ 08540		Telephone 609.945.1200		Facsimile 609.945.1212

disclosed or made available only to such of your directors, officers, employees, affiliates, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, the “Representatives”) who need to know such information for the sole purpose of evaluating a Transaction; provided, however that such Representatives, prior to receipt of any Evaluation Material, shall be informed by you (a) of the confidential nature of such information and the terms of this Agreement and the obligations of confidentiality undertaken by you under this Agreement, and (b) that by receiving such Evaluation Material, such Representatives are agreeing to be bound by the confidentiality obligations under this Agreement. In any event, you shall be responsible for any breach of this Agreement by any of your Representatives and you agree, at your sole expense, to take all responsible measures to restrain your Representatives from prohibited or unauthorized disclosure or use of Evaluation Material. You hereby agree that you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a Transaction, that Evaluation Material will be kept confidential and that you and your Representatives will not disclose any of the Evaluation Material in any manner whatsoever except as permitted by this Agreement, provided, however, that you may make (i) any disclosure of such information to which the Company gives it prior written consent (but only to the extent of the information explicitly provided by any such consent) and (ii) any disclosure required by applicable law or legal proceedings, subject to compliance with the other provisions in this Agreement.

(b) The Evaluation Material may contain material information about the Company that has not been disclosed to the public generally. You understand that you and your Representatives could be subject to prosecution as well as fines, penalties, or other liabilities under U.S. and other applicable securities laws if you or your Representatives trade in the Company’s securities while in possession of any material, non-public information that may be contained in the Evaluation Material.

(c) You agree that, without the prior written consent of the Company, you and your Representatives will not disclose to any other person the fact that the Evaluation Material has been made available to you, the fact that discussions or negotiations are taking place concerning a possible transaction involving the Company or any of the terms, conditions or other matters then being discussed with respect hereto (including the status thereof) and such facts shall be considered to be Evaluation Materials for the purpose of this Agreement, provided that you may make such disclosures as required by law, legal proceedings or the rules of any securities market by which you are bound (in which event you will consult with, and exercise good faith reasonable efforts to mutually agree with, the Company regarding the nature, extent and form of such disclosure prior to making any such disclosure, except to the extent there is a reasonable likelihood that the making of such efforts may cause you to stand liable for contempt or suffer other censure or penalty, in which case you may make such disclosure to such extent). Without limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly, enter into any agreement, arrangement or understanding, or any discussions which might lead to any such agreement, arrangement or understanding, or share any Evaluation Material, with any person who might participate as a joint venturer, partner, investor or lender in any transactions involving the Company. Moreover, you shall not collaborate or share any Evaluation Material with any person who may be evaluating or negotiating a transaction involving the Company or any person known by you (after reasonable inquiry, to be a Representative of such person). The term “person” as used in this paragraph shall be broadly interpreted to include the media and any company, corporation, partnership, group,

individual or other entity but does not include your investment banker Deutsche Bank and your equity partner, Blackstone Group.

(d) In the event that you or any of your Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material, you shall provide the Company with prompt written notice of any such request or requirement so that the Company may seek a protective order or other appropriate remedy. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives are nonetheless legally compelled to disclose Evaluation Material to any tribunal or else stand liable for contempt or suffer other censure or penalty, you or your Representatives may, without liability hereunder, disclose to such tribunal only that portion of Evaluation Material which your counsel advises you is legally required to be disclosed, provided that you exercise your reasonable best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably cooperating with the Company, at the Company’s sole cost and expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material by such tribunal.

(e) If you decide that you do not wish to proceed with a Transaction, you will promptly inform the Company of that decision. In that case, upon the request of the Company you will promptly deliver to the Company all Evaluation Material (and all copies thereof) furnished to you or your Representatives by or on behalf of the Company pursuant hereto. In the event of such a decision or request, all other Evaluation Material furnished to you or your Representatives and any other written materials containing or reflecting any information in the Evaluation Material shall be destroyed and no copy thereof shall be retained. Notwithstanding the foregoing provisions, you (i) may retain one copy of the Evaluation Material (and, upon request, shall be provided with a report reflecting the extent of your review of any electronic database made available to you on a confidential basis) solely for the purpose of determining the extent of your obligations hereunder and (ii) shall not be required to deliver to the Company the materials which you generate internally including, but not limited to, financial analyses prepared for your management and reports made to your board of directors, provided that such material shall be held by you and kept subject to the terms of this Agreement or destroyed. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder.

3. ACCURACY OF EVALUATION MATERIAL. You understand and acknowledge that neither the Company nor any of its representatives (including without limitation any of the Company’s directors, officers, employees, or agents) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that neither the Company nor any of its representatives (including without limitation any of the Company’s directors, officers, employees, or agents) shall have any liability to you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representatives or warranties which are made in a final definitive agreement regarding any Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.

4. CURRENT EQUITY OWNERSHIP. You hereby represent to the Company that, as of the date hereof, you and your affiliates and associates (as such terms are defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)), together with any other person with whom you are acting in concert in connection with this matter or have formed a “group” within the meaning of Section 13(d)(3) of the 1934 Act, are not beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of the outstanding shares of common stock of the Company.

5. NON-SOLICITATION. You and the Company further agree that, except as provided in a Transaction Agreement, from the date hereof and for a period ending six (6) months after the date on which the Company and you have terminated discussions concerning a Transaction, neither you nor the Company will solicit, directly or indirectly, (i.e., initiate discussions with) for hire any of the officers or employees of the other party (other than persons who no longer are officers or employees of the Company or you, as the case may be, at the time discussions are initiated); provided that nothing herein shall prohibit you or the Company from soliciting for employment, hiring or employing any person (i) who responds to general solicitation or advertisement that is not directed to employees of the Company or you (including response to general advertisements) or (ii) any person who you or the Company first solicit or enter into discussions with after termination of his or her employment with the Company or you, as the case may be.

6. WAIVERS AND AMENDMENTS. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement contains the sole and entire agreement between the parties with respect to the subject matter hereof and may only be amended with the written consent of you and the Company.

7. STANDSTILL. You agree that, for a period from the date hereof and ending six (6) months after the date on which the Company and you have terminated discussions concerning a Transaction, unless such shall have been specifically invited in writing by the Board of Directors of the Company, neither you nor any of your affiliates (as such term is defined under the 1934 Act) will in any manner, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, directly or indirectly, (i) to acquire beneficial ownership (as defined in Rule 13d-3 under the 1934 Act) of the Company or assets of the Company; (ii) any tender or exchange offer, merger or other business combination involving the Company; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the U.S. Securities and Exchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a “group” ( as defined under the 1934 Act) or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company; (c) take any action which might force the Company to make a public announcement regarding any of the types of matter set forth in (a) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. You also agree during such period not to request the Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence). Notwithstanding the foregoing provisions of this Section 7,

in the event you and the Company, or the Company and any third party, have entered into a definitive agreement for the acquisition of all or substantially all of the Company’s assets or securities, business combinations, mergers, tender offers, exchange offers or similar transactions (“Extraordinary Transaction”), then, without invitation or approval of the Company, you may present a proposal to the Board of Directors as a whole (but not separately to individual Directors) to amend any provision of this Agreement or to effect an Extraordinary Transaction.

Nothing in this Agreement shall prevent any of your business divisions or your affiliates (including investment advisors of you or any Representative that might otherwise be deemed to be your affiliate) from purchasing or selling securities or assets of the Company in the ordinary course of business transactions provided that such business divisions or affiliates and the personnel that effect or cause such purchase or sale do not have knowledge of, or access to, any Evaluation Material and are unaware of this existence of this Agreement.

8. REMEDIES. It is understood and agreed that money damages would not be a sufficient remedy for any breach of this Agreement by you or any of your Representatives and that the Company shall be entitled to equitable relief, including injunctions and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by you of this Agreement but shall be in addition to all other remedies available at law or equity to the Company. In the event of litigation relating to this Agreement between the Company and you, the losing party shall be liable for and pay to the prevailing party the reasonable legal fees incurred by the prevailing party in connection with such litigation, including any appeal therefrom.

9. EFFECT OF AGREEMENT. Neither the Company nor you nor any of your affiliates are under any legal obligation of any kind whatsoever with respect to conducting negotiations relating to or consummating a Transaction by virtue of this Agreement. We each understand and agree that no contract of agreement providing for a transaction with the Company or its stockholders shall be deemed to exist between you and the Company unless and until you and the Company execute and deliver a definitive agreement (a “Transaction Agreement”). We each also agree that unless and until a Transaction Agreement between the Company and you has been executed and delivered, there is no legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to any such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. The Company reserves the right, in its sole discretion, to reject any and all proposals made by you with regard to a Transaction and, subject to the provisions of this Agreement, to engage in discussions and negotiations, and to enter into a definitive agreement, with regard to any other transaction, with any other person at any time and without notice to you and to terminate discussions and negotiations with you at any time.

10. COUNSEL. You understand that the Company has retained Morgan, Lewis & Bockius LLP as its legal advisors in connection with the Transaction. You hereby consent to such retention and waive any conflict that such firm may have in connection with such retention with respect to the Transaction or any dispute arising from or relating to an actual or proposed transaction or this Agreement. This waiver is made expressly for the benefit of Morgan, Lewis & Bockius LLP.

11. MISCELLANEOUS. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware without regard to any conflicts of law principles thereof. The parties hereto hereby irrevocably and unconditionally consent to submit to the jurisdiction of the courts of the State of Delaware and of the United States of America located in City, County and State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and the parties further agree that service of any process, summons, notice or document by U. S. registered mail or courier service to your address or the Company’s address set forth above shall be effective service of process for any action, suit or proceeding brought against you or the Company in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the federal or state courts located in the City, County and State of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum or seek to change the venue from any such court. This Agreement may be executed in counterparts. Except for provisions which by their terms extend beyond such day, this Agreement shall remain in effect for two (2) years from the date first above written, unless sooner terminated by mutual written agreement of the parties.

Please confirm your agreement with the foregoing by signing two copies of this letter and returning one signed copy to the undersigned, whereupon this Agreement shall become a binding agreement between you and the Company



		Very truly yours,

		BARRIER THERAPEUTICS, INC.

		By:

		Name: Al Altomari
		Title: Chief Executive Officer

Accepted and agreed as of the date first written above.

STIEFEL LABORATORIES, INC.



By:

Name: Brent Stiefel
Title: EVP

EX-99.6 6 y62270exv99w6.htm EX-99.6: JOINT FILING AGREEMENT EX-99.6

Exhibit 99.6

JOINT FILING AGREEMENT

PURSUANT TO RULE 13d-1(k)

The undersigned acknowledge and agree that the foregoing statement on Schedule 13D is filed on behalf of each of the undersigned and that all subsequent amendments to this statement on Schedule 13D may be filed on behalf of each of the undersigned without the necessity of filing additional joint filing agreements. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning him or it contained herein or therein, but shall not be responsible for the completeness and accuracy of the information concerning the others, except to the extent that he or it knows or has reason to believe that such information is inaccurate.

DATED: July 3, 2008


STIEFEL LABORATORIES, INC.
By:	/s/ Devin Buckley
Name:		Devin Buckley
Title:		Senior Vice President and General Counsel


/s/ CHARLES W. STIEFEL
CHARLES W. STIEFEL

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