Exhibit 10.6
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into
this 22nd day of March 1999, by and between NexMed International Limited, a
corporation organized under the laws of the British Virgin Islands (the
"Seller") and Vergemont International Limited a corporation organized under the
laws of the Turks and Caicos Islands ("Acquirer").
RECITALS
WHEREAS, Seller wishes to sell and Acquirer wishes to purchase, all
of the issued and outstanding capital stock of NexMed (Asia) Limited, a
corporation organized under the laws of Hong Kong (the "Company"), consisting of
two (2) shares of Company Common Stock (as hereinafter defined), pursuant to the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Defined Terms. When used in this Agreement, the
following terms shall have the meanings set forth in this Article I. All article
and section numbers used in this Agreement refer to articles and sections of
this Agreement unless otherwise specifically described.
"Affiliate" means, with respect to any specified Person, a Person
that directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with, such specified Person.
"Code" means the Internal Revenue Service Code of 1986, as amended.
"Company Balance Sheet" means the audited statements of assets and
liabilities for the Company as of December 31, 1998.
"Company Income Statement" means the audited statements of income
for the Company as of December 31, 1998.
"Company Common Stock" means the ordinary shares of the Company,
HK$1.00 par value, per share.
"Contract" means all written contracts, agreements, indentures,
notes, loans, licenses, leases, commitments, insurance policies, plans,
arrangements, sales orders and purchase orders of every kind to which the
Company is bound which are not terminable at will or which do not involve the
expenditure over its unexpired life of more than US$50,000.
"Governmental Entity" means any government or any court, arbitral
tribunal, administrative agency or commission or other governmental or other
regulatory authority or agency, federal, state, local or foreign.
"Intellectual Property" means domestic and foreign patents, patent
applications, inventions, invention disclosures, trademark and service xxxx
applications, registered trademarks, registered service marks, copyrights,
trademarks, service marks, trade names, material trade secrets, know-how,
formulae and processes and all other similar items of intellectual property.
"Knowledge of the Company" means the actual knowledge of the
executive officers of the Company or the Seller.
"Lien" means any adverse claim, restriction on voting or transfer or
pledge, lien, charge, encumbrance or security interest of any kind.
"Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a Governmental Entity.
"Tax" (including with correlative meaning, the terms "Taxes" and
"Taxable") means all forms of taxation, whenever created or imposed, whether
imposed by a local, municipal, state, foreign, federal or other governmental
body or authority, and, without limiting the generality of the foregoing, shall
include income, gross receipts, ad valorem, excise, value-added, sales, use,
transfer, franchise, license, stamp, occupation, withholding, employment,
payroll, property or environmental tax or premium, together with any interest,
penalty, addition to tax or additional amount imposed by any governmental body
or authority responsible for the imposition of any such tax (a "Taxing
Authority").
"Taxable Period" means any taxable year or any other period that is
treated as a taxable year with respect to which any Tax may be imposed under any
applicable statute, rule or regulation.
"Tax Return" means any return, extension, report, statement,
information statement and the like required to be filed with any Taxing
Authority.
Section 1.2 Other Terms. Other terms may be defined elsewhere in
this Agreement and, for the purposes of this Agreement, those other terms shall
have the meanings specified in those other portions. Meanings specified in this
Agreement shall be applicable to both the singular and plural forms of such
terms and to the masculine, feminine and neuter genders, as the context
requires.
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ARTICLE II
PURCHASE AND SALE OF THE SHARES
Section 2.1 Transfer of the Shares. Subject to the terms and
conditions set forth herein, Acquirer hereby purchases from the Seller, and the
Seller hereby sells to Acquirer, two (2) shares of Company Common Stock,
representing all issued and outstanding shares of Company Common Stock, in
exchange for the Purchase Price (as defined below).
Section 2.2 The Purchase Price. The total consideration (the
"Purchase Price") to be paid by the Acquirer for the Shares shall be
US$4,000,000.
Section 2.3 Deliveries. Simultaneously with the execution and
delivery of this Agreement, (i) the Company shall deliver one or more share
certificates representing all of the shares of Company Common Stock, duly
endorsed or accompanied by executed stock powers in blank against payment of the
Purchase Price by Acquirer, (ii) the Acquirer shall deliver the Purchase Price,
as set forth in Section 2.4(a) and (b), (iii) NexMed Inc., a Nevada corporation
("NexMed"), and the Parent of the Seller, shall issue the Warrant, as set forth
in 2.4(c) below and (iii) the Seller, the Company, and Acquirer shall execute,
deliver and acknowledge, or cause to be executed, delivered and acknowledged,
such certificates and other documents related to the consummation of the
transactions contemplated hereby as may be reasonably requested by the parties
hereto.
Section 2.4 Payment of Purchase Price. The Purchase Price shall be
paid as follows:
(a) US $2,000,000 by the delivery by the Acquirer to the Seller of a
wire transfer of funds or a certified or bank cashier's checks to such account
numbers and depositories designated by the Seller by notice in writing to the
Acquirer;
(b) delivery by the Acquirer to the Seller of two (2) promissory
notes of the Acquirer substantially in the forms attached hereto as Exhibits A
and B (the "Notes"). The Notes shall be registered in the name of the Seller and
shall be dated the date of issue thereof; and
(c) issuance by NexMed of a Warrant substantially in the form of
Exhibit (C) hereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES CONCERNING
THE SELLER AND THE COMPANY
The Seller hereby represents and warrants to the Acquirer as
follows:
Section 3.1 Organization and Qualification. Each of the Seller and
the Company are duly organized, validly existing and in good standing under the
laws of their respective jurisdictions of incorporation and have the corporate
power and authority to own, lease
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and operate their properties and to carry on their businesses as are now being
conducted.
Section 3.2 Authorization and Validity of Agreement. The Seller has
the requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby in accordance
with the terms hereof. The Seller's Board of Directors have duly authorized the
execution, delivery and performance of this Agreement by the Seller, and no
other corporate proceedings on the part of the Seller is necessary to authorize
this Agreement or the transactions contemplated hereby. This Agreement has been
duly executed and delivered by the Seller and, assuming this Agreement
constitutes the legal, valid and binding obligation of the Acquirer, it
constitutes the legal, valid and binding obligation of the Seller, enforceable
against it in accordance with its terms, except as such enforcement may be
limited by any bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws affecting the enforcement of creditors' rights
generally or by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 3.3 Capitalization; Subsidiaries. (a) As of the date of this
Agreement, the authorized capital stock of the Company consists of 10,000
HK$1.00 shares of Company Common Stock, of which two (2) shares of Company
Common Stock are issued and outstanding, all of which are owned beneficially by
the Seller, including the one (1) share of Company Common Stock that is recorded
in the name of X. Xxxxxx Mo who is the trustee and nominal owner of that one (1)
share for the Seller. No shares of the Company Common Stock are reserved for
issuance pursuant to outstanding stock options or in respect of future grants of
stock options. All of such shares so owned by the Seller are validly issued,
fully paid and nonassessable and are owned by it free and clear of any Liens,
restraints on alienation, or any restrictions with respect to the
transferability or assignability thereof (other than restrictions on transfer
imposed by federal and state securities laws). There are no outstanding
subscriptions, options, warrants, calls, rights, commitments or any other
agreements to which the Seller or the Company is a party or by which the Seller
or the Company is bound which obligate the Seller or the Company to (i) issue,
deliver or sell or cause to be issued, delivered or sold any additional shares
of the Company Common Stock or any other capital stock of the Company or any
other securities convertible into, or exercisable or exchangeable for, or
evidencing the right to subscribe for, any such shares of the Company Common
Stock or any other capital stock of the Company or (ii) purchase, redeem or
otherwise acquire any shares of the Company Common Stock or any other capital
stock of the Company.
(b) The Company has no direct or indirect subsidiaries other than
NexMed Pharmaceuticals (Zhongshan) Ltd., a joint-venture organized under the
laws of the People's Republic of China ("NexMed China").
(c) The Company is the record owner of seventy (70) percent of all
of the outstanding shares of capital stock of NexMed China, there are no proxies
with respect to any such shares, and no equity securities of NexMed China are or
may become required to be issued by reason of any options, warrants, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into or exchangeable or exercisable for, shares
of any capital stock of NexMed China, and there are no contracts, commitments,
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understandings or arrangements by which the Company or NexMed China is bound to
issue, redeem, purchase or sell additional shares of capital stock of NexMed
China or securities convertible into or exchangeable or exercisable for any such
shares. All of such shares so owned by the Company are validly issued, fully
paid and nonassessable and are owned by it free and clear of Liens, restraints
on alienation, or any other restrictions with respect to the transferability or
assignability thereof (other than restrictions on transfer imposed by federal or
state securities laws). The Company is not a party to any voting trust or other
agreement or understanding with respect to the voting of any capital stock of
NexMed China.
Section 3.4 Consent and Approvals. Neither the execution and
delivery of this Agreement by the Seller nor the consummation by the Seller of
the transactions contemplated hereby will require on the part of the Seller any
filing with or notification to any Governmental Entity, except where the failure
to make such filing or notification would not materially adversely effect the
business, assets, condition (financial or otherwise), revenues or rights
(collectively, the "Condition") of the Seller or prevent the consummation of the
transactions contemplated hereby.
Section 3.5 No Conflict or Violation. Neither the execution,
delivery or performance of this Agreement nor the consummation of the
transactions contemplated hereby will (i) conflict with or result in any breach
of any provisions of either the Seller's or the Company's Memorandum or the
Seller's or the Company's Articles of Association, (ii) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, cancellation, vesting,
payment, exercise, acceleration, suspension or revocation) under, any of the
terms, conditions or provisions of any material Contract to which either the
Seller or the Company or their predecessors in interest is a party or by which
the Seller or the Company or any of their properties or assets are bound, (iii)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to the Seller or the Company or any of their properties or assets,
(iv) result in the creation or imposition of any Lien on any asset of the Seller
or the Company or (v) cause the suspension or revocation of any permit, license,
governmental authorization, consent or approval necessary for the Seller or the
Company to conduct its business as currently conducted, except, in the case of
clauses (ii), (iii), (iv) and (v), for violations, breaches, defaults,
terminations, cancellations, accelerations, creations, impositions, suspensions
or revocations that would not materially adversely effect the Condition of
either of the Seller or the Company.
Section 3.6 Financial Statements. The Seller has provided the
Acquirer with copies of the Company Balance Sheet and the Company Income
Statement and certain projections regarding the future performance and operating
results of the Company (the "Projections"). The Company Balance Sheet (including
any related notes and schedules thereto) fairly presents, in all material
respects, the financial position of the Company as of its date and the Company
Income Statement fairly presents, in all material respects, the results of
operations of the Company for the periods set forth therein, in accordance with
the ordinary accounting practices in Hong Kong (subject in each case to normal
year-end adjustments, footnotes and other presentation items). The Acquirer
acknowledges that the Projections were prepared for illustrative purposes only,
involve risks and uncertainties and are subject to significant business,
economic and competitive uncertainties and contingencies, many of which are
beyond the control of the Seller and that actual results could differ materially
from those anticipated in the
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Projections. Acquirer acknowledges that it is not relying on the Projections in
any respect in making its decision to acquire the Company Common Stock from the
Seller.
Section 3.7 Litigation. There is no suit, action, proceeding or
investigation (whether at law or equity, before or by any federal, state or
foreign commission, court, tribunal, board, agency or instrumentality, or before
any arbitrator) pending or, to the Knowledge of the Company, threatened against
or affecting the Company, the outcome of which would materially adversely effect
the Condition of the Company.
Section 3.8 Legal Compliance. The Company has complied with all
material applicable laws (including rules, regulations, codes, plans,
injunctions, judgments, orders, decrees, rulings, and charges thereunder) of all
Governmental Entities, except where the failure to comply would not materially
adversely effect the Condition of the Company.
Section 3.9 Insurance. The Company is insured and will remain so
until the date hereof, in the amounts and against risks consistent with the
Company's past practice. Effective on the date hereof, the Seller shall have no
further obligation to insure the Company.
Section 3.10 Taxes.
(a) All Tax Returns required to be filed with any Taxing Authority
on or prior to the date hereof by or with respect to the Company have been
filed, except Tax Returns for which requests for extensions have been timely
filed or where the failure to file such Tax Returns would not materially
adversely effect the Condition of the Company, and all such filed Tax Returns
are complete in all material respects;
(b) The Company has paid all Taxes shown as due and payable on Tax
Returns that have been filed;
(c) The Company has paid or accrued on the Company's balance sheet
all Taxes payable by it for all Taxable Periods ending on or before the date
hereof for which no Tax Return has yet been filed;
(d) No federal, state, local or foreign audits, examinations or
other administrative or court proceedings are presently pending with regard to
any Tax Returns or Taxes of the Company and, which, if determined adversely,
would materially adversely effect the Condition of the Company; and
(e) There are no Liens for Taxes on the assets of the Company,
except for Liens that would not materially adversely effect the Condition of the
Company.
Section 3.11 Intellectual Property. Neither the Seller nor the
Company has received any notice that the products or activities of the Company
or the use thereof violate, infringe or otherwise conflict with the Intellectual
Property of third parties, except for such violations, infringements or
conflicts that would not materially adversely effect the Condition of the
Company.
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Section 3.12 Contracts. Attached hereto is a list of all Contracts
to which the Company or NexMed China is a party. To the Seller's Knowledge, the
Company is in material compliance with all material terms under such Contracts.
Section 3.13 Actions Not in Ordinary Course. Since September 30,
1998 the Company (i) has operated only in the ordinary course, consistent with
past practices, (ii) has not (other than in the ordinary course of business),
acquired or disposed of any assets or entered into any Contracts, commitments or
leases which would have a material and adverse impact upon the Condition of the
Company, (iii) has not (a) entered into or performed any material transaction,
Contract or commitment or (b) made or awarded any wage or salary increase or
provided any bonus or material increase in any fringe benefits to any employee
of the Company, except bonus payments consistent with past practices.
Section 3.14 No Change. Since September 30, 1998, there has not been
(i) any material adverse change (whether or not in the ordinary course of
business) in the Condition of the Company as reflected on the Company's most
recent balance sheet or (ii) any damage, destruction or loss, whether or not
covered by insurance, affecting the Condition of the Company.
Section 3.15 Real Property. The Company has a valid and existing
lease or sublease for, and is in peaceful and undisturbed possession of the
property located at Room #2208, Xxxxxxx Xxxxx, 000 Xxxxxxxxxx Xxxx, Xxxxxxxx
Xxx, Xxxx Xxxx (the "Company Leased Property"). The lease for the Company Leased
Property is valid and enforceable in accordance with its terms, is in full force
and effect, and there is not under such Lease any default by the Company or, to
the Knowledge of the Company, by any landlord or lessor under such Lease.
Neither the Seller nor the Company has received any notice of any violation of
any applicable zoning ordinance, building code, use or occupancy restriction, or
violation of any thereof, or any condemnation action or proceeding with respect
to the Company Leased Property.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE ACQUIRER
The Acquirer hereby represents and warrants to the Seller and the
Company as follows:
Section 4.1 Organization. Acquirer is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to own, lease and
operate its properties and to carry on its business as it is now being
conducted.
Section 4.2 Authorization and Validity of Agreement. Acquirer has
the requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby in accordance
with the terms hereof. Acquirer's Board of Directors has duly authorized the
execution, delivery and performance of this
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Agreement by Acquirer, and no other corporate proceedings on the part of
Acquirer are necessary to authorize this Agreement or the transactions
contemplated hereby. The Agreement has been duly executed and delivered by
Acquirer and, assuming this Agreement constitutes the legal, valid and binding
obligation of the Seller, it constitutes the legal, valid and binding obligation
of Acquirer, enforceable against Acquirer in accordance with its terms, except
as such enforcement may be limited by any bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
affecting the enforcement of creditors' rights generally or by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
Section 4.3 Consents and Approvals. Neither the execution and
delivery of this Agreement by Acquirer nor the consummation by Acquirer of the
transactions contemplated hereby will require on the part of Acquirer any
consent, approval, authorization or permit of, or filing with or notification
to, any Governmental Entity, except where the failure to obtain such consent,
approval, authorization or permit, or to make such filing or notification, would
not materially adversely effect the Condition of the Acquirer or prevent the
consummation of the transactions contemplated hereby.
Section 4.4 No Conflict or Violation. Neither the execution,
delivery or performance of this Agreement by Acquirer, nor the consummation by
Acquirer of the transactions contemplated hereby, nor compliance by Acquirer
with any of the provisions hereof, will (i) conflict with or result in any
breach of any provisions of the Acquirer's charter or by-laws (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation,
vesting, payment, exercise, acceleration, suspension or revocation) under, any
of the terms, conditions or provisions of any material note, bond, mortgage,
deed of trust, security interest, indenture, license, contract, agreement, plan
or other instrument or obligation to which Acquirer is a party or by which
Acquirer or any of its properties or assets may be bound or affected, or (ii)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Acquirer or any of its properties or assets, except for
violations, breaches, defaults, terminations, cancellations, accelerations,
creations, impositions, suspensions or revocations that would not, individually
or in the aggregate, materially adversely effect the Condition of the Acquirer
or its ability perform its obligations under this Agreement.
Section 4.5 Litigation. There is no suit, action, proceeding or
investigation (whether at law or equity, before or by any federal, state or
foreign commission, court, tribunal, board, agency or instrumentality, or before
any arbitrator) pending or threatened against or affecting Acquirer the outcome
of which would in any manner impair the ability of Acquirer to perform its
obligations hereunder or to consummate the transactions contemplated hereby.
Section 4.6 Brokers and Finders. In connection with the transactions
contemplated hereby, Xxxxxxx Limited, an investment consulting firm located at
Room 1602 Chit Xxx Commercial Building, 30-36 Shau Kei Wan Road, Hong Kong, has
acted as a finder to facilitate the completion of the subject Agreement. The
Company, therefore, agrees to pay Xxxxxxx Limited a six (6) percent finder's fee
upon the receipt in full or in partial amounts of the proposed $4 million
proceeds as defined under Section 2.2, and a warrant to purchase 200,000
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shares of the common stock of NexMed, Inc., par value of $.001 per share, at an
exercise price of US$3.00 per share prior to March 21, 2001. Acquirer has not
incurred any other obligation to pay a brokerage, finders or other fee or
commission to any Person other than Xxxxxxx Limited heretofore mentioned.
Section 4.7 Investment Representation. Acquirer acknowledges that
the Company Common Stock is not registered under the securities laws of any
jurisdiction and that it is acquiring the Company Common Stock for its own
account, and not with a view to the distribution thereof. Acquirer is a
sophisticated investor with knowledge and experience in financial matters and
has received information from the Seller concerning the Company and has had the
opportunity to obtain additional information in order to evaluate the purchase
contemplated hereby.
ARTICLE V
COVENANTS OF THE SELLER, THE COMPANY AND THE ACQUIRER
The parties hereto agree that:
Section 5.1 Efforts. Subject to the terms and conditions of this
Agreement and applicable law, each of the parties hereto shall act in good faith
and use commercially reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective the transactions contemplated hereby
as soon as practicable, including such actions or things as the other party may
reasonably request in order to cause any of the conditions to such other party's
obligation to consummate the transactions contemplated by this Agreement to be
fully satisfied.
Section 5.2 Transfer Taxes. All transfer, documentary, sales, use,
registration and other such Taxes, and any penalties, interest and additions to
such Taxes, that are incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by Acquirer. The parties to this
Agreement shall cooperate in the timely making of all filings, returns, reports
and forms as may be required in connection therewith.
Section 5.3 Implied Warranties. Except as expressly provided in this
Agreement, the Seller has not made and is not making any representation or
warranty whatsoever to Acquirer as to the Company. Without limiting the
foregoing, Acquirer acknowledges that Acquirer, together with its advisors, has
made its own investigation of the Company and is not relying on any implied
warranties (whether of merchantability or fitness for a particular purpose or
otherwise), or upon any representation or warranty whatsoever not set forth in
this Agreement.
Section 5.4 Survival of Representations and Warranties. The
representations and warranties of the parties made in this Agreement or provided
herein shall not survive the Closing Date except that the representations and
warranties made in Sections 3.1, 3.2, 3.3 and 4.1 and 4.2 hereof, shall survive
indefinitely and the representations and warranties of the Company made in
Section 3.10 shall survive the expiration of the applicable statute of
limitations relating to such matters.
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Section 5.5 Management Consulting Services. The Acquirer shall enter
into a management consulting agreement with Xx. X. Xxxxxx Mo substantially in
the form attached hereto as Exhibit D.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date delivered, mailed or transmitted, and shall be
effective upon receipt, if delivered personally, mailed by registered or
certified mail (postage prepaid, return receipt requested) or sent by fax (with
immediate confirmation) or nationally recognized overnight courier service, as
follows:
(a) if to Acquirer, to:
Vergemont International Limited
Suite 2401-2408
00X, XXXXX Xxxxx
Xxx Xxx Xxx Xxxxxx
Xxxxxxx, Xxxx Xxxx
Attention: Xx. Xxx-Xxxxx Wu
(b) if to the Seller or the Company, to:
NexMed International Limited
Room 2208, Windsor House
000 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxx, Xxxx Xxxx
Attention: Xx. X. Xxxxxx Mo
with a copy to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
or to such other Person or address or facsimile number as either party shall
specify by like written notice to the other party hereto (any such notice of a
change of address to be effective only upon actual receipt thereof).
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Section 6.2 Entire Agreement. This Agreement (including the
schedules, exhibits and other documents referred to herein), constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior written or oral and all contemporaneous oral
agreements and undertakings between any of the parties hereto with respect to
the subject matter hereof.
Section 6.3 Assignment; Binding Effect. Neither this Agreement nor
any of the rights, benefits or obligations hereunder may be assigned, in whole
or in part, by either party, except by operation of law and any such purported
assignment shall be null and void, provided, however, that, without the prior
written consent of the other party hereto, Acquirer may assign all or part of
this Agreement and their rights hereunder (a) to an Affiliate or (b) from and
after the closing to a Person, not a party to this Agreement, who acquires
substantially all of the assets of Acquirer and who assumes all of the
obligations of Acquirer hereunder, provided, further, in each such case that no
such assignment shall release Acquirer from its duties and obligations
hereunder. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
Section 6.4 Fees and Expenses. All costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby
(including, without limitation, fees and disbursements of counsel, financial
advisors and accountants) shall be borne by the party which incurs such cost or
expense.
Section 6.5 Amendments. This Agreement may only be amended or
modified by an instrument in writing signed on behalf of each of the parties
hereto.
Section 6.6 Waivers. At any time prior to the date hereof, the
Company, on the one hand, or Acquirer, on the other hand, may, to the extent
legally allowed, (a) extend the time specified herein for the performance of any
of the obligations or other acts of the other, (b) waive any inaccuracies in the
representations and warranties of the other contained herein or in any document
delivered pursuant hereto or (c) waive compliance by the other with any of the
agreements or covenants of such other party contained herein. Any such extension
or waiver shall be valid only if set forth in a written instrument signed on
behalf of the party to be bound thereby. No such extension or waiver shall
constitute a waiver of, or estoppel with respect to, any subsequent or other
breach or failure to strictly comply with the provisions of this Agreement. The
failure of either party to insist on strict compliance with this Agreement or to
assert any of its rights or remedies hereunder or with respect hereto shall not
constitute a waiver of such rights or remedies.
Section 6.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated thereby is not affected in any manner
materially adverse to either party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as
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possible in an acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the fullest extent possible.
Section 6.8 Captions. The table of contents and headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
Section 6.9 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
Section 6.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of Hong Kong, without regard to any
applicable principles of conflicts of law.
Section 6.11 Limitations of Remedies. Neither party hereto shall be
liable to the other for indirect, special, incidental, consequential or punitive
damages claimed by such other party resulting from such first party's breach of
its obligations, agreements, representations or warranties hereunder, provided
that nothing hereunder shall preclude any recovery by an indemnified party
against an indemnifying party for third party claims.
[The remainder of this page has been left blank intentionally.]
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IN WITNESS WHEREOF, the parties have executed this Stock Purchase
Agreement as of the date first above written.
NEXMED INTERNATIONAL LIMITED
By:
-------------------------------
X. Xxxxxx Mo, Ph.D.
Managing Director
NEXMED (ASIA) LIMITED
By:
-------------------------------
X. Xxxxxx Mo, Ph.D.
Managing Director
VERGEMONT INTERNATIONAL LIMITED
By:
-------------------------------
Xxx-Xxxxx Wu
Managing Director
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EXHIBIT A
TERM NOTE
US $1,000,000 Date: March 22, 1999
This Term Note is executed and delivered under and pursuant to the terms
of that certain Stock Purchase Agreement, dated as of the date hereof (as
amended, supplemented, restated or modified from time to time, the "Purchase
Agreement") by and among Vergemont International Limited, a Turks and Caicos
Islands corporation (the "Payor") with its principal place of business located
at Xxxxx 0000-0000, 00X XXXXX Xxxxx, Xxx Xxx Xxx Xxxxxx, Xxxxxxx, Xxxx Xxxx and
NexMed International Limited, a British Virgin Islands corporation (the
"Payee"), with its principal place of business located at Room #2208 Windsor
House, 000 Xxxxxxxxxx Xxxx, Xxxxxxxx Xxx, Xxxx Xxxx. Capitalized terms not
otherwise defined herein shall have the meanings provided in the Purchase
Agreement.
FOR VALUE RECEIVED, Payor hereby promises to pay to the order of the
Payee, at its principal place of business located at Room #2208 Windsor House,
311 Gloucester Road, Causeway Bay, Hong Kong, or at such other place as the
Payee may from time to time designate to Payor in writing:
(i) the principal sum of One Million U.S. Dollars (US$1,000,000.00) on
June 30, 2000; and
(ii) interest (computed on the basis of a 360-day year of twelve 30-day
months) on the unpaid principal amount hereof beginning January 1, 2000 at a
rate of six percent (6%) per annum, payable quarterly, with the first such
interest payment date being on March 31, 2000 until the principal hereof shall
have been paid in full, and on the maturity date hereof. In no event, however,
shall interest exceed the maximum interest rate permitted by law.
This Note is one of the Term Notes referred to in the Pledge Agreement and
is secured, inter alia, by the liens granted pursuant to the Pledge Agreement
and the Payee, is entitled to the benefits of the Pledge Agreement and is
subject to all of the agreements, terms and conditions therein contained.
Upon the happening of any of the following events (each, an "Event of
Default"): any breach by the Payor of the Purchase Agreement or the Pledge
Agreement; any breach by the Payor of that certain License Agreement dated the
date hereof relating to certain of the Payee's proprietary products; the
dissolution of the Payor, the commencement by the Payor of a foreclosure
proceeding; the suspension of business by the Payor, the filing by the Payor of
a petition in bankruptcy, whether voluntary or involuntary; the filing by the
Payor of an application, whether voluntary or involuntary, for reorganization or
any arrangement or readjustment of indebtedness; the appointment by the Payor of
any receiver, trustee, liquidator or any committee; an assignment by the Payor
for the benefit of creditors; or the sending by the Payor of notice of an
intended bulk sale; any Event of Default described in the Pledge Agreement; the
Payor defaults in the payment of any principal of or interest on any Note to the
14
Payee when the same shall become due, whether by the terms thereof or otherwise
herein provided, and such default continues for five (5) days; then, in any such
event, this Note, if not then due, shall, at the option of the Payee or holder
hereof, become immediately due and payable without demand or notice and all
other debts or obligations of the Payor to the Payee, whether due or not due and
whether direct, indirect or contingent and howsoever evidenced, shall, at the
option of the Payee, also become immediately due and payable without demand or
notice.
All rights and remedies of the Payee under applicable law and this Note
are cumulative and not exclusive. No single, partial or delayed exercise by the
Payee of any right or remedy shall preclude full and timely exercise by the
Payee at any time of any right or remedy of the Payee without notice. No waiver
shall be effective unless made specifically in writing by the Payee.
The substantive laws of Hong Kong shall govern, without reference to its
choice of law rules, the validity, construction, enforcement and interpretation
of this Note.
In any action or other legal proceeding relating to this Note, the Payor
(i) consents to the personal jurisdiction of any court located in Hong Kong,
(ii) waives objection to the laying of venue, (iii) waives personal service of
process, (iv) consents to service of process by registered or certified mail
directed to the Payor at the last address shown in the Payee's records relating
to this Note, with such service of process to be deemed completed five (5) days
after mailing and (v) WAIVES ANY RIGHT TO TRIAL BY JURY with respect to this
Note or to assert any counterclaim or setoff or recoupment with respect to this
Note. In any proceeding, a copy of this Note kept in the Payee's course of
business shall be admitted into evidence as an original.
Payor expressly waives any presentment, demand, protest, notice of
protest, or notice of any kind.
VERGEMONT INTERNATIONAL LIMITED
By:
---------------------------
Xxx-Xxxxx Wu
Managing Director
NEXMED INTERNATIONAL LIMITED
By:
---------------------------
X. Xxxxxx Mo, Ph.D.
Managing Director
15
EXHIBIT B
TERM NOTE
US $1,000,000 Date: March 22, 1999
This Term Note is executed and delivered under and pursuant to the terms
of that certain Stock Purchase Agreement dated as of the date hereof (as
amended, supplemented, restated or modified from time to time, the "Purchase
Agreement") by and among Vergemont International Limited, a Turks and Caicos
Islands corporation (the "Payor") with its principal place of business located
at Xxxxx 0000-0000, 00X XXXXX Xxxxx, Xxx Xxx Xxx Xxxxxx, Xxxxxxx, Xxxx Xxxx and
NexMed International Limited, a British Virgin Islands corporation (the
"Payee"), with its principal place of business located at Room #2208 Windsor
House, 000 Xxxxxxxxxx Xxxx, Xxxxxxxx Xxx, Xxxx Xxxx. Capitalized terms not
otherwise defined herein shall have the meanings provided in the Purchase
Agreement.
FOR VALUE RECEIVED, Payor hereby promises to pay to the order of the
Payee, at its principal place of business located at Room #2208 Windsor House,
311 Gloucester Road, Causeway Bay, Hong Kong, or at such other place as the
Payee may from time to time designate to Payor in writing, the principal sum of
One Million U.S. Dollars (US$1,000,000.00) on November 12, 1999;
This Note is one of the Term Notes referred to in the Pledge Agreement and
is secured, inter alia, by the liens granted pursuant to the Pledge Agreement
and the Payee, is entitled to the benefits of the Pledge Agreement and is
subject to all of the agreements, terms and conditions therein contained.
Upon the happening of any of the following events (each, an "Event of
Default"): any breach by the Payor of the Purchase Agreement or the Pledge
Agreement; any breach by the Payor of that certain License Agreement dated the
date hereof relating to certain of the Payee's proprietary products; the
dissolution of the Payor, the commencement by the Payor of a foreclosure
proceeding; the suspension of business by the Payor, the filing by the Payor of
a petition in bankruptcy, whether voluntary or involuntary; the filing by the
Payor of an application, whether voluntary or involuntary, for reorganization or
any arrangement or readjustment of indebtedness; the appointment by the Payor of
any receiver, trustee, liquidator or any committee; an assignment by the Payor
for the benefit of creditors; or the sending by the Payor of notice of an
intended bulk sale; any Event of Default described in the Pledge Agreement; the
Payor defaults in the payment of any principal of or interest on any Note to the
Payee when the same shall become due, whether by the terms thereof or otherwise
herein provided, and such default continues for five (5) days; then, in any such
event, this Note, if not then due, shall, at the option of the Payee or holder
hereof, become immediately due and payable without demand or notice and all
other debts or obligations of the Payor to the Payee, whether due or not due and
whether direct, indirect or contingent and howsoever evidenced, shall, at the
option of the Payee, also become immediately due and payable without demand or
notice.
16
All rights and remedies of the Payee under applicable law and this Note
are cumulative and not exclusive. No single, partial or delayed exercise by the
Payee of any right or remedy shall preclude full and timely exercise by the
Payee at any time of any right or remedy of the Payee without notice. No waiver
shall be effective unless made specifically in writing by the Payee.
The substantive laws of Hong Kong shall govern, without reference to its
choice of law rules, the validity, construction, enforcement and interpretation
of this Note.
In any action or other legal proceeding relating to this Note, the Payor
(i) consents to the personal jurisdiction of any court located in Hong Kong,
(ii) waives objection to the laying of venue, (iii) waives personal service of
process, (iv) consents to service of process by registered or certified mail
directed to the Payor at the last address shown in the Payee's records relating
to this Note, with such service of process to be deemed completed five (5) days
after mailing and (v) WAIVES ANY RIGHT TO TRIAL BY JURY with respect to this
Note or to assert any counterclaim or setoff or recoupment with respect to this
Note. In any proceeding, a copy of this Note kept in the Payee's course of
business shall be admitted into evidence as an original.
Payor expressly waives any presentment, demand, protest, notice of
protest, or notice of any kind.
VERGEMONT INTERNATIONAL LIMITED
By:
--------------------------
Xxx-Xxxxx Wu
Managing Director
NEXMED INTERNATIONAL LIMITED
By:
--------------------------
X. Xxxxxx Mo, Ph.D.
Managing Director
17
EXHIBIT C
THE WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE THEREOF
HAVE BEEN ISSUED BY NEXMED, INC. (THE "COMPANY") PURSUANT TO REGULATION S,
PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND HAVE
NOT BEEN REGISTERED UNDER THE ACT OR ANY APPLICABLE STATE SECURITIES LAWS. THESE
SECURITIES MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE
ACCOUNT OF A "U.S. PERSON" (AS THAT TERM IS DEFINED IN REGULATION S) DURING THE
PERIOD COMMENCING ON THE EXERCISE OF THIS WARRANT CERTIFICATE AND ENDING ONE (1)
YEAR FOLLOWING EXERCISE OF THIS WARRANT CERTIFICATE (THE "RESTRICTED PERIOD").
THE COMPANY WILL NOTIFY THE TRANSFER AGENT OF THE DATE OF THE EXPIRATION OF SUCH
RESTRICTED PERIOD. FOLLOWING EXPIRATION OF THE RESTRICTED PERIOD, THESE
SECURITIES MAY NOT BE OFFERED OR SOLD UNLESS SUCH OFFER OR SALE IS REGISTERED OR
EXEMPT FROM REGISTRATION UNDER THE ACT.
WARRANT
to Purchase Common Stock of
NEXMED, INC.
Expiring June 30, 2000
This Warrant certifies that Vergemont International Limited, or its
registered and permitted assigns (the "Holder"), is entitled to, subject to the
terms set forth below, subscribe for and purchase from NEXMED, INC., a Nevada
corporation (the "Company"), 2,000,000 (TWO MILLION) duly authorized, validly
issued, fully paid and non-assessable shares of the Company's common stock,
U.S.$.001 par value per share (the common stock, including any stock into which
it may be changed, reclassified, or converted, and as it may be adjusted
pursuant to Section 4(A) below, is herein referred to as the "Common Stock").
This Warrant is issued pursuant to the Regulation S Securities Subscription
Agreement dated ____________, by and among the Holder and the Company.
This Warrant is subject to the following provisions, terms and conditions:
Section 1. Exercise of Warrant.
To exercise this Warrant in whole or in part, the Holder shall deliver to
the Company at its principal office, (a) a written notice, in substantially the
form of the Exercise Notice appearing at the end of this Warrant, of the
Holder's election to exercise this Warrant, which notice shall specify the
number of shares of Common Stock to be purchased, (b) cash or a certified check
payable to the Company in an amount equal to the aggregate purchase price of the
number of shares of Common Stock being purchased, and (c) this Warrant. The
Company shall as promptly as practicable, and in any event within 15 days
thereafter, execute and deliver or cause to be executed and delivered, in
accordance with such notice, a stock certificate or certificates representing
the aggregate number of shares of Common Stock specified in such notice. The
18
stock certificate or certificates so delivered shall be in such denominations as
may be specified in such notice and shall be issued in the name of the Holder or
such other name as shall be designated in such notice. Such stock certificate or
certificates shall be deemed to have been issued and the Holder or any other
person so designated to be named therein shall be deemed for all purposes to
have become a holder of record of such shares immediately prior to the close of
business on the date such notice is received by the Company as aforesaid. If
this Warrant shall have been exercised only in part, the Company shall, at the
time of delivery of said stock certificate or certificates, deliver to the
Holder a new Warrant evidencing the rights of the Holder to purchase the
remaining shares of Common Stock called for by this Warrant, which new Warrant
shall in all other respects be identical to this Warrant, or, at the request of
the Holder, appropriate notation may be made on this Warrant and the same
returned to the Holder. The Company shall pay all expenses, taxes and other
charges payable in connection with the preparation, issue and delivery of such
stock certificates and new Warrants, except that, in case such stock
certificates or new Warrants shall be registered in a name or names other than
the name of the Holder, funds sufficient to pay all stock transfer taxes that
are payable upon the issuance of such stock certificates or new Warrants shall
be paid by the Holder at the time of delivering the notice of exercise mentioned
above.
All shares of Common Stock issued upon the exercise of this Warrant shall
be validly issued, fully paid and non-assessable.
The Company shall not be required upon any exercise of this Warrant to
issue a certificate representing any fraction of a share of Common Stock, but,
in lieu thereof, shall pay to the Holder cash in an amount equal to a
corresponding fraction (calculated to the nearest 1/100 of a share) of the
purchase price of one share of Common Stock as of the date of receipt by the
Company of notice of exercise of this Warrant.
Section 2. Terms and Conditions of Warrants.
(A) Exercise Period. Each Warrant shall be exercisable at any time on or
after the date hereof (the "Exercise Date"), and shall expire at 5:00 p.m., New
York City time, on June 30, 2000 (the "Expiration Date").
(B) Purchase Price. The purchase price per share of Common Stock shall be
US$2.50 if the Warrant is exercised on or prior to June 30, 1999 or US$3.00 if
the Warrant is exercised after June 30, 1999.
(C) Payment of Purchase Price upon Exercise. The purchase price of the
Common Stock as to which a Warrant is exercised shall be paid to the Company at
the time of exercise in cash.
(D) Transferability and Exercise of Warrants. This Warrant shall be
exercisable (a) only under circumstances such that the issue of Common Stock
issuable upon such exercise or conversion is exempt from the requirements of
registration under the Securities Act of 1933, as amended (the "1933 Act"), and
any applicable state securities law or (b) upon registration of such Common
Stock in compliance therewith. This Warrant and the Common Stock issuable upon
the exercise thereof shall only be transferable under circumstances such that
the transfer is
19
exempt from the requirements of registration under the 1933 Act and any
applicable state securities law. By acceptance hereof, the Holder agrees to
comply with such laws.
(E) Investment Representation. The Holder, by acceptance hereof, (i)
hereby represents that he or she is an "Accredited Investor" under Rule 501(a)
of Regulation D promulgated under Section 4(2) of the 1933 Act, and (ii)
acknowledges that this Warrant and, to the extent not registered under the 1933
Act, any Common Stock purchased or acquired pursuant hereto is being or will be
acquired solely for the Holder's own account and not as a nominee for any other
party, and with a current investment intent and not with a view to distribution
thereof. The Holder (or any person acting under Sections 2(D) above) shall
deliver to the Company, at the time of any exercise of this Warrant or portion
thereof, a written representation that the shares of Common Stock to be acquired
upon such exercise are to be acquired for investment and not for resale or with
a view to the distribution thereof, and, if applicable, that he or she is the
original Holder of this Warrant. Delivery of such representation prior to the
delivery of any Common Stock issued upon exercise of a Warrant and prior to the
expiration of the Warrant period shall be a condition precedent to the right of
the Holder or such other person to purchase any Common Stock. In the event
certificates for Common Stock are delivered upon the exercise of this Warrant
with respect to which such an investment representation has been obtained, the
Company may cause a legend or legends to be placed on such certificates to make
appropriate reference to such representations and to restrict transfer in the
absence of compliance with applicable federal or state securities laws.
(F) Absence of Default. The Holder may not exercise the Warrant if there
has been an Event of Default (as such term is defined therein) which has not
been cured prior to the exercise of this Warrant under the Term Notes dated
March 22, 1999 which have been issued by the Holder in favor of NexMed
International Limited pursuant to that certain Stock Purchase Agreement dated
March 22, 1999 between the Holder and NexMed International Limited.
Section 3. Transfer, Division and Combination.
The Company agrees to maintain at its principal office books for the
registration and transfer of this Warrant, and, subject to the provisions of
Section 2(D) hereof, this Warrant and all rights hereunder are transferable, in
whole or in part, on such books at such office, upon surrender of this Warrant
at such office, together with a written assignment of this Warrant duly executed
by the Holder or his agent or attorney and funds sufficient to pay any stock
transfer taxes payable upon the making of such transfer. Upon such surrender and
payment, the Company shall execute and deliver a new Warrant or Warrants in the
name of the assignee or assignees and in the denominations specified in such
instrument of assignment, and this Warrant shall promptly be canceled. A Warrant
may be exercised by a new holder for the purchase of shares of Common Stock
without having a new Warrant issued. All of the provisions of this Section 3 are
subject to the provisions of Sections 2(D) above.
Section 4. General Provisions
(A) Certain Adjustments. In the event of any change in the Common Stock by
reason of any stock dividend, recapitalization, reorganization, merger,
consolidation, split-up, combination
20
or exchange of shares, or of any similar change affecting the Common Stock, the
number and kind of shares subject to this Warrant and the purchase price per
share thereof shall be appropriately adjusted consistent with such change in
such manner as the Board of Directors of the Company (the "Board") may deem
equitable to prevent substantial dilution or enlargement of the rights granted
to, or available for, the Holder hereunder. Any adjustment of this Warrant
pursuant to this Section 4(A) shall be made only to the extent not constituting
a "modification" within the meaning of Section 424(h)(3) of the Internal Revenue
Code of 1986, as amended from time to time, unless the Holder shall agree
otherwise. The Board shall give notice to the Holder of any adjustment made
pursuant to this Section 4(A) and, upon notice, such adjustment shall be
effective and binding for all purposes under this Warrant.
(B) Merger or Consolidation. In case of any consolidation of the Company
with, or merger of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger which does not result in any
reclassification or change of the outstanding Common Stock), the corporation
formed by such consolidation or merger shall execute or deliver to the Holder a
supplemental warrant agreement providing that the holder of each Warrant then
outstanding or to be outstanding shall have the right thereafter (until the
expiration of such Warrant) to receive, upon exercise of such warrant, the kind
and amount of shares of stock and other securities and property receivable upon
such consolidation or merger, by a holder of the number of shares of Common
Stock of the Company for which such warrant might have been exercised
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental warrant agreement shall provide for adjustments, which shall be
identical to the adjustments provided in Section 4. The above provisions shall
similarly apply to successive consolidations or mergers.
(C) Taxes. The Company may make such provisions and take such steps as it
may deem necessary or appropriate for the withholding of all federal, state and
local taxes required by law to be withheld with respect to this Warrant,
including, but not limited to (i) deducting the amount required to be withheld
from any other amount then or thereafter payable to the Holder, and (ii)
requiring the Holder to pay to the Company the amount required to be withheld as
a condition of releasing Common Stock. In addition, subject to such rules and
regulations as the Board shall from time to time establish, the Holder shall be
permitted to satisfy federal, state and local taxes, if any, imposed upon the
issuance of Common Stock at a rate up to the Holder's maximum marginal tax rate
with respect to each such tax by (i) irrevocably electing to have the Company
deduct from the number of shares Common Stock otherwise deliverable upon
exercise of a Warrant such number of shares of Common Stock as shall have a
value equal to the amount of tax to be withheld, (ii) delivering to the Company
such portion of the Common Stock delivered upon exercise of the Warrant as shall
have a value equal to the amount of tax to be withheld, or (iii) delivering to
the Company such Common Stock or combination of Common Stock and cash as shall
have a value equal to the amount of tax to be withheld.
(D) General Creditor Status. The Holder shall have no right, title, or
interest whatsoever in or to any investments, which the Company may make to aid
it in meeting its obligations hereunder. Nothing contained herein, and no action
taken pursuant hereto, shall create or be construed to create a trust of any
kind, or a fiduciary relationship between the Company and the Holder or any
other person. To the extent that any person or entity acquires a right to
receive
21
payments from the Company hereunder, such right shall be no greater than the
right of an unsecured general creditor of the Company.
(E) No Liability of Board Members. The Holder of this Warrant agrees that
no member of the Board shall be personally liable by reason of any contract or
other instrument executed by such member or on his or her behalf in his or her
capacity as a member of the Board nor for any mistake of judgment made in good
faith.
Section 5. Covenant to Reserve Shares of Common Stock.
The Company covenants and agrees that it will at all times reserve and set
apart and have, free from preemptive rights, a number of shares of authorized
but unissued Common Stock sufficient to enable it at any time to fulfill all its
obligations hereunder.
Section 6. Notices.
In the event that:
(a) the Company proposes to pay any dividend payable in stock (of
any class or classes) or any obligations or stock convertible into or
exchangeable for shares of Common Stock upon its Common Stock or make any
distribution (other than ordinary cash dividends) to the holders of its
Common Stock;
(b) the Company proposes to grant to the holders of its Common Stock
generally any rights or warrants (excluding any warrants granted to any
employee, director, officer, contractor or consultant of the Company
pursuant to any plan approved by the Board of Directors of the Company);
(c) the Company proposes to effect any capital reorganization or
reclassification of capital stock of the Company;
(d) the Company proposes to consolidate with, or merge into, any
other Company or to transfer its property as an entirety or substantially
as an entirety; or
(e) the Company proposes to effect the liquidation, dissolution or
winding up of the Company,
then the Company shall cause notice of any such intended action to be given to
the holder of this Warrant not less than 30 days before the date on which the
transfer books of the Company shall close or a record shall be taken for such
stock dividend, distribution or granting of rights or Warrants, or the date when
such capital reorganization, reclassification, consolidation, merger, transfer,
liquidation, dissolution or winding up shall be effective, as the case may be.
Any notice or other document required or permitted to be given or
delivered to the holder of this Warrant shall be delivered by facsimile
transmission, reliable courier or first-class mail postage prepaid to the holder
of this Warrant at the last address shown on the books of the
22
Company maintained for the registry and transfer of this Warrant. Any notice or
other document required or permitted to be given or delivered to holders of
record of Common Stock issued pursuant to this Warrant shall be delivered by
facsimile, reliable courier or first-class mail postage prepaid to such holder
at such holder's address as the same appears on the stock records of the
Company. Any notice or other document required or permitted to be given or
delivered to the Company shall be delivered by facsimile transmission, reliable
courier or first-class mail postage prepaid to the principal office of the
Company or delivered to the office of one of the Company's executive officers at
such address, or such other address as shall have been furnished by the Company
to the holders of record of this Warrant and the holders of record of such
Common Stock.
Section 7. Limitation of Liability; Not Shareholders.
No provision of this Warrant shall be construed as conferring upon the
Holder the right to vote or to consent or to receive dividends or to receive
notice as a shareholder in respect of meetings of shareholders for the election
of directors of the Company or any other matter whatsoever as shareholders of
the Company. No provision hereof, in the absence of affirmative action by the
Holder to purchase shares of Common Stock, and no mere enumeration herein of the
rights or privileges of the Holder, shall give rise to any liability of Holder
for the purchase price or as a shareholder of the Company, whether such
liability is asserted by the Company, creditors of the Company or others.
Section 8. Loss, Destruction, etc, of Warrant.
Upon receipt of evidence satisfactory to the Company of the loss, theft,
mutilation or destruction of this Warrant, and in the case of any such loss,
theft or destruction upon delivery of a bond of indemnity in such form and
amount as shall be reasonably satisfactory to the Company, or in the event of
such mutilation upon surrender and cancellation of this Warrant, the Company
will make and deliver a new Warrant, of like tenor, in lieu of such lost,
stolen, destroyed or mutilated Warrant. Any Warrant issued under the provisions
of this Section 8 in lieu of any Warrant alleged to be lost, destroyed or
stolen, or of any mutilated Warrant, shall constitute an original contractual
obligation on the part of the Company.
Section 9. Amendments.
Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally or in writing, provided that any term of this
Warrant may be amended or the observance of such term may be waived (either
generally or in a particular instance and either retroactively or prospectively)
with, but only with, the written consent of the Company and the holders of the
Warrants that are exercisable for a number of shares of Common Stock that
represent in the aggregate at least a majority of the total number of shares of
Common Stock for which all of the Warrants are then exercisable (whether or not
the holder of this Warrant consents).
23
Section 10. Governing Law and Consent to Jurisdiction.
This Warrant shall be governed by the laws of the State of New York
without regard to its conflict of laws, principles or rules. This Warrant shall
be deemed to have been executed and delivered at and shall be deemed to have
been made in New York, New York.
Any legal action, suit or proceeding arising out of or relating to this
Warrant may only be instituted in any federal court of the Southern District of
New York or any state court located in New York County, State of New York, and
the Company agrees not to assert, by way of motion, as a defense or otherwise,
in any action, suit or proceeding, any claim that it is not subject personally
to the jurisdiction of such courts, that the action, suit or proceeding if
brought in such courts, would be an inconvenient forum, that the venue of the
action, suit or proceeding, if brought in any of such courts, is improper or
that this Warrant or the subject matter may not be enforced in or by such courts
on jurisdictional grounds.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its name by its duly authorized officer.
Dated: ___________, 1999
NEXMED, INC.
By:
-----------------------------
X. Xxxxxx Mo, Ph.D.
President & CEO
24
EXERCISE NOTICE
The undersigned, the Holder, hereby elects to exercise purchase rights
represented by such Warrant for, and to purchase thereunder, ____________ shares
of the Common Stock covered by such Warrant and herewith makes payment in full
therefor of US$_________ cash and/or by cancellation of US$__________ of
indebtedness of the Company to the Holder hereof and requests that, subject to
the terms and conditions of the Warrant, certificates for such shares (and any
securities or property deliverable upon such exercise) be issued in the name of
and delivered to ______________________ whose address is
_______________________________________, and whose social security or employer
identification number is ____________.
The undersigned agrees that, in the absence of an effective registration
statement with respect to Common Stock issued upon this exercise, the
undersigned is acquiring such Common Stock for the Holder's own account and not
as a nominee for any other party, for investment and not with a view to
distribution thereof and that the certificate or certificates representing such
Common Stock may bear a legend substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY
APPLICABLE STATE SECURITIES LAWS. SUCH SHARES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM
UNDER SUCH ACT AND UNDER ANY APPLICABLE STATE SECURITIES LAWS. THESE
SHARES MAY NOT BE TRANSFERRED EXCEPT UPON THE CONDITIONS SPECIFIED IN THIS
WARRANT CERTIFICATE, AND NO TRANSFER OF THESE SHARES SHALL BE VALID OR
EFFECTIVE UNLESS AND UNTIL SUCH CONDITIONS SHALL HAVE BEEN COMPLIED WITH.
In addition, the undersigned agrees that, in the absence of an effective
registration statement with respect to Common Stock issued upon this exercise,
stop transfer instructions will be entered on the Company's stock transfer
records with respect to Common Stock issued upon this exercise.
Dated:
---------------------------
Signature
25
EXHIBIT D
Vergemont International Limited
Suite 2401-2408
00X, XXXXX Xxxxx
Xxx Xxx Xxx Xxxxxx
Xxxxxxx, Xxxx Xxxx
March 22, 1999
X. Xxxxxx Mo, Ph.D
NexMed International Limited
Room 2208, Windsor House
000 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxx, Xxxx Xxxx
Dear Dr. Mo,
Vergemont International Limited ("the "Company") would like to
retain your services as a consultant to the Company following the consummation
of the transactions contemplated by that certain Stock Purchase Agreement, (the
"Purchase") dated the date hereof between the Company and NexMed International
Limited ("NexMed") on the terms set forth in this letter. You have served as a
key executive of NexMed and its subsidiaries, and through such service, have
acquired special and unique knowledge, abilities and expertise that would be
valuable to the Company during its transition period following the Purchase.
The Company wishes you to advise its Board of Directors, executives
and other key employees on all aspects of its business, and to continue serving
as the Legal Representative of NexMed Pharmaceuticals (Zhongshan) Ltd.,
following the Purchase for a period of twelve (12) months from the date hereof
(the "Consulting Period"). During the Consulting Period, you will make your
services available to the Company for up to five (5) days each quarter and the
Company will reimburse you for all of your reasonable out of pocket expenses in
connection with your providing such services. Additionally, should any executive
or key employee request that you travel on behalf of the Company, the Company
will reimburse you for all reasonable travel expenses; provided, however, that
you not be required to travel more than one (1) time during any quarterly
period. The Company further agrees that any such travel shall be arranged at
such time(s) as are mutually convenient to both you and the Company.
During the Consulting Period, we agree to indemnify and hold
harmless NexMed including its parent company and subsidiaries, and their
officers, directors, employees, shareholders, representatives and agents from
and against any and all losses, liabilities, claims, damages, deficiencies,
costs and expenses including reasonable attorney's fees, based upon, arising out
of, or otherwise in respect of your performance of any services hereunder
approved by us. The foregoing indemnification provisions shall survive the
expiration or earlier termination of this agreement.
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If you are in agreement with the foregoing terms, kindly execute
this letter below and return it to the undersigned.
Sincerely,
Vergemont International Limited
By:
-------------------------------
Xxx-Xxxxx Wu
Managing Director
AGREED AND ACCEPTED
----------------------------
X. Xxxxxx Mo, Ph.D.
Managing Director
NexMed International Limited
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