9. Fiduciary Duties. Nothing contained in this Agreement shall prevent the Stockholder or any Person affiliated with a Stockholder, and who is also a director or officer of Menlo, from exercising his or her fiduciary duties as a director or officer of Menlo including taking any actions permitted under Section 5.7 of the Merger Agreement, and the restrictions set forth in this Agreement shall only apply to such Stockholder in his, her or its capacity as a stockholder of Menlo.
10. Adjustments. After the date of this Agreement and prior to the termination of this Agreement in accordance with Section 12, in the event of a stock split, stock dividend or distribution, or any change in the Voting Stock by reason of any split-up, reverse stock split, recapitalization, combination, reclassification, reincorporation, exchange of shares or the like, the term Voting Stock shall be deemed to refer to and include such securities as well as all such stock dividends, distributions and any securities in to which or for which any or all of such securities may be changed or exchange or which are received in such transaction.
11. Further Assurances. The Stockholder shall, without further consideration, from time to time, execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments as Foamix may reasonably request in order to vest, perfect, confirm or record the rights granted to Foamix under this Agreement.
12. Termination. This Agreement shall automatically terminate and be of no further force or effect upon the earliest to occur of:
12.1 the termination of this Agreement by the mutual written consent of Foamix and the Stockholder;
12.2 the termination of the Merger Agreement in accordance with its terms prior to the Effective Time;
12.3 a Menlo Adverse Recommendation Change to the extent permitted by, and subject to the applicable terms and conditions of, Section 5.7(b) of the Merger Agreement;
12.4 the Effective Time; and
12.5 any amendment to the Merger Agreement without the prior written consent of the Stockholder that (i) decreases the Merger consideration or changes the form of the Merger Consideration, or (ii) otherwise amends the Merger Agreement in a manner materially adverse to the Stockholder relative to the other stockholders of Menlo (excluding, in all cases, any amendments affecting directors, officers or employees of Menlo in their capacities as such who are stockholders of Menlo).
12.6 In the event of the termination of this Agreement in accordance with this Section 12, this Agreement shall forthwith become void and have no effect, and there shall not be any liability or obligation on the part of any party hereto, other than this Section 12 and Section 14, which provisions shall survive such termination; provided, however, that nothing in this Section 12.6 shall relieve either party from liability for any material and intentional breach of any representation, warranty, covenant or other agreement contained in this Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity. For purposes of this Agreement, material and intentional breach shall mean an action or omission taken or omitted to be taken that the breaching party intentionally takes (or fails to take) and knows would, or knows would reasonably be expected to, cause a material breach of this Agreement.