This CONTINGENT STOCK RIGHTS AGREEMENT (this Agreement), dated as of [●], 2020, is entered into by and between Menlo Therapeutics Inc., a Delaware corporation (the Company), and [●], as Rights Agent (the Rights Agent).
W I T N E S S E T H:
WHEREAS, the Company, Giants Merger Subsidiary Ltd., a company incorporated under the laws of the State of Israel and registered under No.  ###-###-#### with the Israeli Registrar of Companies, and a direct, wholly-owned subsidiary of the Company (Menlo Merger Sub), and Foamix Pharmaceuticals Ltd., a company incorporated under the laws of the State of Israel and registered under No. 51-336881-1 with the Israeli Registrar of Companies (Foamix), have entered into an Agreement and Plan of Merger, dated as of November 10, 2019 (as may be amended and restated from time to time, the Merger Agreement), pursuant to which, at the Effective Time (as defined in the Merger Agreement, the Effective Time), Menlo Merger Sub will be merged (the Merger) with and into Foamix, with Foamix continuing as the surviving corporation and as a wholly owned subsidiary of the Company;
WHEREAS, the consideration to be paid by the Company pursuant to the Merger Agreement includes one contingent stock right as hereinafter described (a CSR and collectively, the CSRs) for each ordinary share, par value NIS 0.16 per share, of Foamix (each, a Foamix Share) issued and outstanding immediately prior to the Effective Time;
WHEREAS, each person who from time to time holds one or more CSRs shall be entitled to the conversion of such CSRs for such number of shares of Common Stock, par value $0.0001 per share, of the Company (the Menlo Common Stock), in the amounts and subject to the terms and conditions set forth herein;
WHEREAS, a registration statement on Form S-4 (No. [●]) (the Registration Statement) with respect to, among other securities, the shares of Menlo Common Stock issuable pursuant to the CSRs, has been prepared and filed by the Company with the Securities and Exchange Commission (the Commission) and has become effective in accordance with the Securities Act of 1933, as amended (the Securities Act);
WHEREAS, the parties have done all things necessary to make the CSRs, when issued pursuant to the Merger Agreement and hereunder, the valid obligations of the Company, and to make this Agreement a valid agreement of the Company, in accordance with its terms;
WHEREAS, the Company desires the Rights Agent to act on behalf of the Company, and the Rights Agent is willing to act in connection with the issuance, transfer, exchange and conversion of CSRs as provided herein; and
WHEREAS, terms used herein but not defined herein, shall have the meanings set forth in the Merger Agreement.