8. Non-solicitation. Unless and until this Agreement shall have been validly terminated in accordance with Section 12, the Stockholder shall not, directly or indirectly (i) solicit, initiate or knowingly encourage, or take any other action designed to, or which is reasonably expected to, facilitate, any Foamix Takeover Proposal, (ii) enter into any agreement with respect to any Foamix Takeover Proposal or (iii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or knowingly furnish to any Person any non-public information with respect to, or otherwise knowingly cooperate with, any proposal that constitutes, or is reasonably expected to lead to, any Foamix Takeover Proposal (each of the actions described in clauses (i), (ii) and (iii), a Restricted Activity). Notwithstanding the foregoing, to the extent that Foamix or the Foamix Board is permitted to engage in any Restricted Activities pursuant to Section 5.6 of the Merger Agreement, such Stockholder may participate in such Restricted Activities to the same extent.
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 Foamix, from exercising his or her fiduciary duties as a director or officer of Foamix including taking any actions permitted under Section 5.6 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 shareholder of Foamix.
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 Menlo may reasonably request in order to vest, perfect, confirm or record the rights granted to Menlo 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 Menlo and the Stockholder;
12.2 the termination of the Merger Agreement in accordance with its terms prior to the Effective Time;
12.3 a Foamix Adverse Recommendation Change to the extent permitted by, and subject to the applicable terms and conditions of, Section 5.6(b) of the Merger Agreement;