STOCKHOLDER SUPPORT AGREEMENT
THIS STOCKHOLDER SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of January 28, 2020, by and among BioPharmX Corporation, a Delaware corporation (“Parent”), Timber Pharmaceuticals LLC, a Delaware limited liability (the “Company”), and each of the undersigned stockholders of Parent (each, a “Holder”).
Pursuant to an Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), by and among Parent, Biti Merger Sub, Inc. a Delaware corporation and wholly‑owned subsidiary of Parent (“Merger Sub”), and the Company, Merger Sub is merging with and into the Company (the “Merger”) and the Company, as the surviving entity of the Merger, will thereby become a wholly‑owned subsidiary of Parent. Concurrently with the execution and delivery of the Merger Agreement and as a condition and inducement to Parent and Merger Sub to enter into the Merger Agreement, Parent has required that the Holders enter into this Agreement. Holder is the beneficial owner (within the meaning of Rule 13d-3 of the Exchange Act) of such number of shares of the outstanding common stock, par value $0.001 per share, of Parent as is indicated beneath Holder’s signature on the last page of this Agreement (the “Shares”).
Capitalized terms used herein but not defined shall have the meanings ascribed to them in the Merger Agreement.
The parties agree as follows:
1. Agreement to Retain Shares.
(a) Transfer. During the period beginning on the date hereof and ending on the earlier to occur of (i) the Effective Time and (ii) the Expiration Date (as defined in Section 4), (1) except as contemplated by the Merger Agreement, and except as provided in Section 1(b), Holder agrees not to, directly or indirectly, sell, transfer, exchange or otherwise dispose of (including by merger, consolidation or otherwise by operation of law) the Shares or any New Shares (as defined below), and (2) Holder agrees not to, directly or indirectly, grant any proxies or powers of attorney, deposit any of the Shares into a voting trust or enter into a voting agreement with respect to any of the Shares, or enter into any agreement or arrangement providing for any of the actions described in this clause (2) (other than as required to comply with Section 2(a)).
(b) Permitted Transfers. Section 1(a) shall not prohibit a transfer of Shares or New Shares (as defined below) by Holder (i) to any family member or trust for the benefit of any family member, (ii) to any stockholder, member or partner of any Holder which is an entity, (iii) to any Affiliate of Holder, or (iv) to any person or entity if and to the extent required by any non-consensual Order, by divorce decree or by will, intestacy or other similar applicable Law, so long
IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be duly executed on the date first above written.
Title:Chief Executive Officer
115 Nicholson Lane
San Jose, CA 95134
Facsimile: (305) 349-4833
Att: Chief Executive Officer
Timber PHARMACEUTICALS LLC
Title:Chief Executive Officer
50 Tice Blvd, Suite A26
Woodcliff Lake, NJ 07677
Att: John Koconis, Chief Executive Officer