exv10w2



 






Exhibit 10.2




BARRIER THERAPEUTICS, INC.




SCIENCE ADVISORY BOARD CONSULTING AGREEMENT




     This SCIENCE ADVISORY BOARD CONSULTING AGREEMENT (this “Agreement”) dated as of August
1, 2005 (the “Effective Date”), is entered into by and between Barrier Therapeutics, Inc., a
Delaware corporation, having a principal place of business at 600 College Road East, Suite 3200,
Princeton, New Jersey, 08540 (the “Company”), and Carl Ehmann, an individual with a
principal address at 134 Broad Street, Charleston, South Carolina 29401 (the “Advisor”).



     WHEREAS, the Company continues to utilize a group of individuals as an advisory board for the
purpose of reviewing the Company’s research, development and commercial plans and activities
relating to research, manufacture, use and/or sale of pharmaceutical products (the “Advisory
Board”); and



     WHEREAS, the Advisor has served as a member of the Company’s Advisory Board pursuant to that
certain Science Advisory Board Consulting Agreement dated as of April 26, 2002 (the “Original
Agreement”); and



     WHEREAS, the Original Agreement has terminated and the parties desire to enter into this
Agreement which affords the Company the opportunity to further engage the Advisor as a member of
the Advisory Board to render services to the Company upon the terms and conditions hereinafter set
forth.



     NOW THEREFORE, in consideration of the foregoing recitals and the mutual promises and
covenants contained in this Agreement, the parties hereto agree as follows:



1. Advisor Services.




     1.1 Subject to the terms and conditions of this Agreement, the Advisor will serve as a member
of the Advisory Board and in such capacity shall perform the following consulting and advisory
services (the “Services”):



          (a) upon appropriate advance notice of the time and location, attend semi-annual meetings not
to exceed one full day each at the Company’s principal place of business or such other location as
may reasonably be designated by the Company and review written and/or electronic background
materials, if any, provided to Advisor in preparation for the meeting;




          (b) provide up to ten (10) hours per calendar quarter of additional consulting or advisory
services (not to include any laboratory, pre-clinical or clinical activities) in person through
telephone and/or by electronic mail advice on an as needed basis, and, if agreed to by Advisor,
on-site at the Company’s offices, to guide the Company in making important strategic decisions and
for the purpose of evaluating the Company’s strategic plans and decisions, research and/or
development activities and results, competitive positions and/or other scientific and/or technical
issues; and




 









 








          (c) provide such other consulting and advisory services as may reasonably be requested by the
Company in connection with the foregoing subject to the hour limitation provided in Section 1.1(b).



2. Independent Contractor. The Advisor understands that the relationship between the
Advisor and the Company is that of an independent contractor and advisor. Nothing contained herein
shall be construed to create an employer and employee, principal and agent, partnership or joint
venture relationship between the Company and the Advisor. Nothing contained in this Agreement
confers on the Advisor any authority to bind or otherwise obligate the Company with respect to any
matter, whether arising under this Agreement or otherwise. The Company acknowledges that Advisor
will not be making any decisions on behalf of the Company in a fiduciary capacity, but merely
providing recommendations in good faith for consideration by the Company, its management and its
Board of Directors.



3. Compensation for Services.




     3.1 Concurrently with the execution of this Agreement, in consideration for the full, prompt
and satisfactory performance of the Services, the Company shall grant to the Advisor a
non-qualified option (the “Option”) to purchase 3,000 shares of the Company’s common stock at an
exercise price equal to the fair market value of the Company’s common stock at the close of
business on the Effective Date, pursuant to the Company’s 2004 Stock Incentive Plan and subject to
the terms of the Non-Qualified Stock Option Agreement attached hereto as Annex A. The shares shall
vest one-twenty-fourth (1/24) per month for so long as this Agreement is in full force and effect.



     3.2 In addition to the Option, the Advisor will receive an annual honorarium of ten thousand
dollars ($10,000) to be paid out quarterly within fifteen (15) days from the end of each calendar
quarter.



     3.3 If Advisor is asked by the Company to incur any out-of-pocket expenses on behalf of the
Company, the Company shall reimburse Advisor for all such reasonable, business class travel (first
class for domestic flights over two (2) hours in duration if business class is not available),
meals and accommodation expenses.


4. Term and Termination. The term of this Agreement shall be for two (2) years from the
date first written above. The Advisor may terminate this Agreement at any time, whether with or
without cause upon thirty (30) days advance written notice to the Company and the Company may
terminate this Agreement if the Advisor materially breaches any term of this Agreement; provided
that if Advisor is unable to attend a semi-annual meeting pursuant to Section 1.1(a) due to
insufficient advance notice, such non-attendance will not be deemed a material breach.



5. Conflict of Interest.




     5.1 The Advisor agrees that he will not engage in any activity that, in the judgment of the
Company and/or the Advisor’s current employer, presents or would reasonably be expected to present
a conflict of interest with his role as an Advisor to the Company.



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     5.2 Without limiting the generality of Section 5.1, the Advisor shall not take on a similar
advisory or directly competitive consulting project for a competitor of the Company.



     5.3 The Advisor agrees that for a period of one year following termination of this Agreement
he will not solicit or attempt to solicit any employee of, or consultant to, the Company to leave
the employment of, or no longer render service to or the benefit of, the Company.


6. Current Employer; Representation.




     6.1 Notwithstanding anything in this Agreement to the contrary, it is understood and agreed by
the Advisor and by the Company that the Advisor’s primary responsibility is to his current
employer.



     6.2 Advisor shall promptly advise the Company of any perceived conflict of interest or
conflicting policy identified in the course of Advisor’s activities hereunder, and the Company and
Advisor shall, in good faith, attempt to resolve any such conflict(s), recognizing that Advisor’s
principal employer’s policies will take priority.



     6.3 Advisor hereby represents and warrants to the Company that Advisor is not, and that
Advisor’s performance of this Agreement, will not result, in violation of any term of any
employment-related agreement or contract, written or verbal, or any other agreement relating to the
right of Advisor to be retained by the Company, or that would interfere with Advisor’s ability to
contribute to the interests of the Company or which would conflict with the Company’s business.


7. Confidentiality.




     7.1 The Advisor will not directly or indirectly, without the Company’s prior written
permission, disclose to anyone or use in other than the Company’s business, either during or after
the term of his relationship with the Company, any Confidential Information (as defined below).
Upon termination of his relationship with the Company, the Advisor will return all copies of any
Confidential Information to the Company.



     7.2 “Confidential Information” shall mean confidential or other proprietary information of the
Company, including, without limitation, hardware and software designs and code, product
specifications and documentation, formulae, methodologies, know-how, therapeutic targets,
mechanisms of action, discovery plans, bioinformatic and other data analysis, assays, tests
results, preparation methods, formulation activities, compound and/or product specifications and/or
properties, trade secrets, technical information, financial, pricing and marketing information,
strategies, business, launch and product plans, customer lists and other business information,
publication drafts, pre-clinical and clinical plans and activities, regulatory preparations and
responses, personnel issues and the identities of other consultants, advisors and service providers
which are disclosed to Advisor or to which Advisor is exposed, whether in writing, marked
“confidential”, or orally or in some other form, whether or not identified as such, but should be
reasonably considered to be confidential.



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     7.3 The Advisor will hold all third-party confidential or proprietary information in
confidence and will use such information only to the extent necessary to carry out work for the
Company consistent with the Company’s arrangement with such third parties. The Advisor will not
disclose to the Company, use in the Company’s business, or cause the Company to use, any
information or material which is confidential to others and which the Company has not been
authorized to use. Specifically, the Advisor certifies that the Advisor has not disclosed to the
Company any confidential or proprietary information belonging to any third party and that the
Company does not want to receive, and the Advisor shall not disclose to the Company at any time,
such confidential or proprietary information.



     7.4 Upon the termination of Advisor’s relationship with the Company, Advisor shall return or
destroy such information provided to Advisor and/or Advisor’s notes related thereto, except that
Advisor may retain one complete archival copy of such information in a secure location, solely for
purposes of monitoring Advisor’s compliance with this Agreement.



     7.5 THE TERMS OF THIS SECTION 7 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.


8. Inventions. The Advisor, to the extent permitted under any prevailing employment
contract or policy of Advisor’s principal employer, hereby assigns to the Company his entire right,
title and interest in and to any Developments. For purposes of this Agreement, “Developments”
means any idea, discovery, invention, modification, improvement, apparatus, practice, process,
method, product, code, computer program (including source and object code), data, data base,
equipment, documentation and original works of authorship, whether or not patentable, copyrightable
or registrable as a trademark which: (i) was made, conceived, developed and/or not first reduced to
practice by Advisor, alone or in concert with other advisors and/or employees of the Company, in
the course of Advisor’s engagement with the Company, or with the use of the Company’s time,
materials, funds or facilities; and (ii) is related to information, technology or investigations of
the Company to which Advisor has access as part of his engagement with the Company.



9. Prohibition Against Insider Trading. Each party acknowledges that the federal
securities laws prohibit any person who has received material non-public information about a party
whose securities are publicly traded from purchasing or selling securities of any such entity or
from communicating such information to any other person under circumstances in which it is
reasonably foreseeable that such person is likely to purchase or sell such securities in reliance
on such information.



10. Indemnification. The Company shall reimburse and indemnify the Advisor for, and hold
Advisor harmless against, any loss, liability or expense, including, without limitation, reasonable
attorney’s fees, incurred without gross negligence, bad faith or willful misconduct on the part of
the Advisor arising out of, or in connection with the acceptance of, or the performance of,
Advisor’s duties and obligations under this Agreement.



11. Entire Agreement. This Agreement and the Non-Qualified Stock Option Agreement
constitute the entire agreement between the parties relative to the subject matter hereof and
thereof and supersede all proposals, letters of intent or agreements, written or oral, and all
other





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communications between the parties relating to the subject matter of this Agreement and the
Non-Qualified Stock Option Agreement.



12. Modifications; Waiver. No provisions of this agreement shall be waived, amended,
modified, superseded, canceled, renewed or extended except in a written instrument signed by the
party against whom any of the foregoing actions is asserted. Any waiver shall be limited to the
particular instance and for the particular purpose when and for which it is given.



13. Transfer of Rights. This Agreement, and any part of the Services to be performed
hereunder and all rights hereunder are personal to the Advisor and may not be transferred or
assigned by the Advisor at any time without the prior written consent of the Company.



14. Governing Law. This Agreement shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the internal laws of the State of New Jersey other
than any law that may cause the laws of a different jurisdiction to apply.



15. Notices. All notices and consents required or permitted hereunder must be in writing
and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b)
when sent by confirmed telex or facsimile if sent during normal business hours of the recipient; if
not, then on the next business day, (c) three business days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, or (d) one business day after deposit
with a nationally recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the party to be notified at the
address as set forth in the introduction or at such other address as such party may designate by
ten (10) days advance written notice to the other party.



16. Counterparts. This Agreement may be executed in two counterparts, each of which shall
be deemed an original, but both of which together shall constitute one and the same instrument.



17. Headings. The headings of the sections, subsections, and paragraphs of this Agreement
have been added for convenience only and shall not be deemed to be a part of this Agreement.



18. Severability. In case any provision of the Agreement shall be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.




[ Signature Pages Follow ]





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     IN WITNESS WHEREOF, the parties hereto have executed this Science Advisory Board Consulting
Agreement as of the date set forth in the first paragraph hereof.



	 	 	 	 	 
	 	 	BARRIER THERAPEUTICS, INC.
	 
	 	 	 	 
	 

	 	By:
	 	ANNE VANLENT
	 

	 	 	 	 
	 

	 	Name:
	 	Anne VanLent
	 

	 	Title:
	 	Executive Vice President and
	 

	 	 	 	Chief Financial Officer
	 
	 	 	 	 
	 	 	ADVISOR
	 
	 	 	 	 
	 

	 	By:
	 	CARL EHMANN
	 

	 	 	 	 
	 

	 	Name:
	 	Carl Ehmann







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