REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of this 11th day of June, 2002 by and between NexMed, Inc., a
Nevada corporation (the "Company"), and the "Purchasers" named in that Purchase
Agreement of even date herewith by and between the Company and the Purchasers
(the "Purchase Agreement").
The parties hereby agree as follows:
1. Certain Definitions
As used in this Agreement, the following terms shall have the
following meanings:
"Common Stock" shall mean the Company's common stock, par value
$0.001 per share.
"Investor" and "Investors" shall mean the Purchaser(s) identified in
the Purchase Agreement and any transferee of the Purchaser(s) who is a permitted
assignee of any Notes, Warrants or Registrable Securities.
"Notes" shall mean the Company's 5% Convertible Notes Due November
2005 issued and sold to the Purchasers pursuant to the Purchase Agreement.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Register," "registered" and "registration" refer to a registration
made by preparing and filing a registration statement or similar document in
compliance with the 1933 Act (as defined below), and the declaration or ordering
of effectiveness of such registration statement or document.
"Registrable Securities" shall mean (a) the Underlying Shares and
the Warrant Shares (without regard to any limitations on beneficial ownership
contained in the Certificate or Warrants) or other securities issued or issuable
to each Holder or its permitted transferee or designee (i) upon conversion of
the Notes and/or upon exercise of the Warrants, or (ii) upon any distribution
with respect to, any exchange for or any replacement of such Notes or Warrants
or (iii) upon any conversion, exercise or exchange of any securities issued in
connection with any such distribution, exchange or replacement; (b) securities
issued or issuable upon any stock split, stock dividend, recapitalization or
similar event with respect to the
foregoing; and (c) any other security issued as a dividend or other distribution
with respect to, in exchange for or in replacement of the securities referred to
in the preceding clauses.
"Registration Statement" shall mean any registration statement filed
under the 1933 Act of the Company that covers the resale of any of the
Registrable Securities pursuant to the provisions of this Agreement, amendments
and supplements to such Registration Statement, including post-effective
amendments, all exhibits and all material incorporated by reference in such
Registration Statement.
"SEC" means the U.S. Securities and Exchange Commission.
"1933 Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Warrants" mean the warrants to purchase shares of Common Stock
issued to the Purchasers pursuant to the Purchase Agreement.
2. Registration.
(a) Registration Statements.
(i) Registrable Securities. Promptly following the closing of
the purchase and sale of the Notes and Warrants contemplated by the Purchase
Agreement (the "Closing Date") (but no later than thirty (30) days after the
Closing Date), the Company shall prepare and file with the SEC one Registration
Statement on Form S-3 (or, if Form S-3 is not then available to the Company, on
such form of registration statement as is then available to effect a
registration for resale of the Registrable Securities, subject to the Investor's
consent) covering the resale of the Registrable Securities in an amount equal to
130% of the number of shares of Common Stock necessary to permit the conversion
in full of the Notes and 100% of the number of shares of Common Stock necessary
to permit the exercise in full of the Warrants. Such Registration Statement also
shall cover, to the extent allowable under the 1933 Act and the Rules
promulgated thereunder (including Rule 416), such indeterminate number of
additional shares of Common Stock resulting from stock splits, stock dividends
or similar transactions with respect to the Registrable Securities. Except for
the resale of those shares of Common Stock set forth on Schedule A attached
hereto, no securities shall be included in the Registration Statement other than
the Registrable Securities without the consent of the Investors holding a
majority of the Registrable Securities (on an as-converted, as-exercised basis),
which consent shall not be unreasonably withheld. The Registration Statement
(and each amendment or supplement thereto, and each request for acceleration of
effectiveness thereof) shall be provided in accordance with Section 3(c) to the
Investor and its counsel prior to its filing or other submission.
2
(ii) Additional Registrable Securities. In the event any
Registrable Securities are not covered by the Registration Statement referred to
in clause (i) above, the Company shall prepare and file with the SEC a
Registration Statement on Form S-3 (or, if Form S-3 is not then available to the
Company, on such form of registration statement as is then available to effect a
registration for resale of such Registrable Securities, subject to the
Investor's consent) covering the resale of such Registrable Securities. Such
Registration Statement also shall cover, to the extent allowable under the 1933
Act and the Rules promulgated thereunder (including Rule 416), such
indeterminate number of additional shares of Common Stock resulting from stock
splits, stock dividends or similar transactions with respect to such Registrable
Securities. Except for the resale of those shares of Common Stock set forth on
Schedule A attached hereto, no securities shall be included in the Registration
Statement other than the Registrable Securities without the consent of the
Investors holding a majority of the Registrable Securities (on an as-converted,
as-exercised basis), which consent shall not be unreasonably withheld. The
Registration Statement (and each amendment or supplement thereto, and each
request for acceleration of effectiveness thereof) shall be provided in
accordance with Section 3(c) to the Investor and its counsel prior to its filing
or other submission.
(b) Expenses. The Company will pay all expenses associated with each
registration, but excluding discounts, commissions, fees of underwriters,
selling brokers, dealer managers or similar securities industry professionals.
(c) Effectiveness.
(i) The Company shall use its best efforts to have each
Registration Statement declared effective as soon as practicable, but in no
event later than the earlier of (a) 120 days following the Closing Date (or the
date of the occurrence of additional Registrable Securities, as the case may be)
and (b) 5 days following the date on which the SEC notifies the Company or its
counsel that the Registration Statement is not subject to any further review. In
connection therewith, the Company shall respond to all SEC comments on the
Registration Statement and file any amendments to the Registration Statement
within 15 business days following any date on which the SEC furnishes comments
to, asks questions of, or requests further information from, the Company or its
counsel with respect to the Registration Statement or any part thereof or any
document incorporated by reference therein. After any Registration Statement is
declared effective by the SEC, the Company shall cause such Registration
Statement to remain effective in accordance with the terms hereof, subject to
permitted suspension of such effectiveness only for Allowed Delays (as defined
below). On or prior to the date any Registration Statement is declared effective
by the SEC, the Company shall cause the Registrable Securities to be
specifically listed or included for quotation on the Nasdaq National Market
System, the Nasdaq Small Cap Market, the New York Stock Exchange or the American
Stock Exchange, and maintain such listing and quotation for the Registrable
Securities and the Common Stock in general.
(ii) For not more than twenty (20) consecutive Trading Days (as
defined in the Notes) and for a total of not more than thirty (30) Trading Days
in any twelve (12) consecutive month period, the Company may delay the
disclosure of material non-public
3
information concerning the Company, by terminating or suspending effectiveness
of any registration contemplated by this Section not containing such
information, the disclosure of which at the time is not, in the good faith
opinion of the Company, in the best interests of the Company (an "Allowed
Delay"); provided, that the Company shall promptly (a) notify the Investor in
writing of the existence of (but in no event, without the prior written consent
of the Investor, shall the Company disclose to the Investor any of the facts or
circumstances regarding) material non-public information giving rise to an
Allowed Delay, and (b) advise the Investor in writing to cease all sales under
the Registration Statement until the end of the Allowed Delay. The duration of
the Registration Period will be extended by the number of days of any and all
Allowed Delays.
(d) Underwritten Offering. If any offering pursuant to a
Registration Statement pursuant to Section 2(a) hereof involves an underwritten
offering, the Company shall have the right to select an investment banker and
manager to administer the offering, which investment banker or manager shall be
reasonably satisfactory to the Investor.
3. Company Obligations. The Company will use its best efforts to effect
the registration of the Registrable Securities in accordance with the terms
hereof, and pursuant thereto the Company will, as expeditiously as possible:
(a) use its best efforts to cause such Registration Statement to
become effective and to remain continuously effective for a period (the
"Registration Period") that will terminate upon the earlier of the date on which
all Registrable Securities, covered by such Registration Statement, as amended
from time to time (i) have been sold or (ii) become available for resale without
registration or limitation pursuant to Rule 144(k) of the 1933 Act. (For
clarification purposes, so long as the Warrants may be exercised by Cashless
Exercise (as defined in the Warrants) in the absence of an effective
registration statement, the Company may assume that the Investor(s) will utilize
such Cashless Exercise except to the extent the 1933 Act or the rules,
regulations or SEC interpretations thereunder do not permit tacking of the
holding period for the Warrant Shares received upon a Cashless Exercise to the
holding period for the Warrants.)
(b) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement and the Prospectus as may be necessary
to keep the Registration Statement effective for the period specified in Section
3(a) and to comply with the provisions of the 1933 Act and the 1934 Act with
respect to the distribution of all Registrable Securities; provided that, at
least three (3) days prior to the filing of a Registration Statement or
Prospectus, or any amendments or supplements thereto, the Company will furnish
to the Investor copies of all documents proposed to be filed;
(c) permit counsel designated by the Investor to review each
Registration Statement and all amendments and supplements thereto no fewer than
five (5) business days prior to their filing with the SEC and not file any
document to which such counsel reasonably objects on the basis that such
document contains a material misstatement or omission;
4
(d) furnish to the Investor and its legal counsel (i) promptly after
the same is prepared and publicly distributed, filed with the SEC, or received
by the Company, one copy of any Registration Statement and any amendment
thereto, each preliminary prospectus and Prospectus and each amendment or
supplement thereto, and each letter written by or on behalf of the Company to
the SEC or the staff of the SEC, and each item of correspondence from the SEC or
the staff of the SEC, in each case relating to such Registration Statement
(other than any portion of any thereof which contains information for which the
Company has sought confidential treatment, and provided that such items shall be
redacted prior to delivering to the Investor and its counsel to the extent
necessary to avoid disclosure of material non-public information concerning the
Company), and (ii) such number of copies of a Prospectus, including a
preliminary prospectus, and all amendments and supplements thereto and such
other documents as such Investor may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such Investor;
(e) in the event the Company selects an underwriter for the
offering, the Company shall enter into and perform its reasonable obligations
under an underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
underwriter of such offering;
(f) if required by the underwriter, at the request of the Investor,
the Company shall furnish, on the date that Registrable Securities, as
applicable, are delivered to an underwriter, if any, for sale in connection with
the Registration Statement (i) an opinion, dated as of such date, from counsel
representing the Company for purposes of such Registration Statement, in form,
scope and substance as is customarily given in an underwritten public offering,
addressed to the underwriter and the Investor and (ii) a letter, dated such
date, from the Company's independent certified public accountants in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriter
and the Investor;
(g) make reasonable effort to prevent the issuance of any stop order
or other suspension of effectiveness and, if such order is issued, obtain the
withdrawal of any such order at the earliest possible moment;
(h) prior to any public offering of Registrable Securities, use its
reasonable best efforts to register or qualify or cooperate with the Investor
and its counsel in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions as the Investor reasonably requests in writing and do any
and all other reasonable acts or things necessary or advisable to enable the
distribution in such jurisdictions of the Registrable Securities covered by the
Registration Statement, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions, or to become subject to any tax in any such state or jurisdiction
where it is not otherwise subject;
5
(i) cause all Registrable Securities covered by a Registration
Statement to be listed on each securities exchange, interdealer quotation system
or other market on which similar securities issued by the Company are then
quoted or listed;
(j) immediately notify the Investor, at any time when a Prospectus
relating to the Registrable Securities is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event as a
result of which, the Prospectus included in such Registration Statement, as then
in effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing, and at
the request of any such holder, promptly prepare and furnish to such holder a
reasonable number of copies of a supplement to or an amendment of such
Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing; and
(k) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC under the 1933 Act and the 1934 Act, take such
other actions as may be reasonably necessary to facilitate the registration of
the Registrable Securities hereunder; and make available to its security
holders, as soon as reasonably practicable, but not later than the Availability
Date (as defined below), an earnings statement covering a period of at least
twelve months, beginning after the effective date of each Registration
Statement, which earnings statement shall satisfy the provisions of Section
11(a) of the 1933 Act (for the purpose of this subsection 3(l), "Availability
Date" means the 45th day following the end of the fourth fiscal quarter that
includes the effective date of such Registration Statement, except that, if such
fourth fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth fiscal
quarter).
4. Obligations of the Investor.
(a) It shall be a condition precedent to the obligations of the
Company to complete the registration pursuant to this Agreement with respect to
the Registrable Securities, that the Investor shall furnish in writing to the
Company such information regarding itself, the Registrable Securities held by it
and the intended method of disposition of the Registrable Securities held by it,
as shall be reasonably required to effect the registration of such Registrable
Securities, and shall execute such documents in connection with such
registration as the Company may reasonably request. At least fifteen (15)
business days prior to the first anticipated filing date of any Registration
Statement, the Company shall notify the Investor of the information the Company
requires from the Investor if the Investor elects to have any of the Registrable
Securities included in the Registration Statement. The Investor shall provide
such information to the Company at least ten (10) business days prior to the
first anticipated filing date of such Registration Statement if the Investor
elects to have any of the Registrable Securities included in the Registration
Statement.
6
(b) The Investor, by its acceptance of the Registrable Securities,
agrees to cooperate with the Company as reasonably requested by the Company in
connection with the preparation and filing of a Registration Statement
hereunder, unless such Investor has notified the Company in writing of its
election to exclude all of its Registrable Securities from the Registration
Statement, in which case the Investor shall be deemed to have waived its rights
to have Registrable Securities registered under this Agreement, unless the
Investor has good cause for such an election.
(c) In the event the Company determines to engage the services of an
underwriter, the Investor agrees to enter into and perform its obligations under
an underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
managing underwriter of such offering and take such other actions as are
reasonably required in order to expedite or facilitate the dispositions of the
Registrable Securities.
(d) The Investor agrees that, upon receipt of any notice from the
Company of the happening of any event rendering a Registration Statement no
longer effective, the Investor will immediately discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities, until the Investor's receipt of the copies of the
supplemented or amended prospectus filed with the SEC and declared effective
and, if so directed by the Company, the Investor shall deliver to the Company
(at the expense of the Company) or destroy (and deliver to the Company a
certificate of destruction) all copies in the Investor's possession of the
prospectus covering the Registrable Securities, current at the time of receipt
of such notice.
(e) The Investor may not participate in any underwritten
registration hereunder unless it (i) agrees to sell the Registrable Securities
on the basis provided in any underwriting arrangements in usual and customary
form entered into by the Company, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements, and (iii) agrees to pay its pro rata share of all underwriting
discounts and commissions and any expenses in excess of those payable by the
Company pursuant to the terms of this Agreement.
5. Indemnification.
(a) Indemnification by Company. The Company agrees to indemnify and
hold harmless, to the fullest extent permitted by law the Investor, its
officers, directors, stockholders and employees and each person who controls
such Investor (within the meaning of the 0000 Xxx) against all losses, claims,
damages, liabilities, costs (including, without limitation, reasonable
attorney's fees) and expenses imposed on such person caused by (i) any untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or any preliminary prospectus or any amendment or
supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are based upon any
information
7
furnished in writing to the Company by such Investor, expressly for use therein,
or (ii) any violation by the Company of any federal, state or common law, rule
or regulation applicable to the Company in connection with any Registration
Statement, Prospectus or any preliminary prospectus, or any amendment or
supplement thereto, and shall reimburse in accordance with subparagraph (c)
below, each of the foregoing persons for any legal and any other expenses
reasonably incurred in connection with investigating or defending any such
claims. The foregoing is subject to the condition that, insofar as the foregoing
indemnities relate to any untrue statement, alleged untrue statement, omission
or alleged omission made in any preliminary prospectus or Prospectus that is
eliminated or remedied in any Prospectus or amendment or supplement thereto, the
above indemnity obligations of the Company shall not inure to the benefit of any
indemnified party if a copy of such corrected Prospectus or amendment or
supplement thereto had been made available to such indemnified party and was not
sent or given by such indemnified party at or prior to the time such action was
required of such indemnified party by the 1933 Act and if delivery of such
Prospectus or amendment or supplement thereto would have eliminated (or been a
sufficient defense to) any liability of such indemnified party with respect to
such statement or omission. Indemnity under this Section 5(a) shall remain in
full force and effect regardless of any investigation made by or on behalf of
any indemnified party and shall survive the permitted transfer of the
Registrable Securities.
(b) Indemnification by Holder. In connection with any registration
pursuant to the terms of this Agreement, the Investor will furnish to the
Company in writing such information as the Company reasonably requests
concerning the holders of Registrable Securities or the proposed manner of
distribution for use in connection with any Registration Statement or Prospectus
and agrees to indemnify and hold harmless, to the fullest extent permitted by
law, the Company, its directors, officers, employees, stockholders and each
person who controls the Company (within the meaning of the 0000 Xxx) against any
losses, claims, damages, liabilities and expense (including reasonable
attorney's fees) resulting from any untrue statement of a material fact or any
omission of a material fact required to be stated in the Registration Statement
or Prospectus or preliminary prospectus or amendment or supplement thereto or
necessary to make the statements therein not misleading, to the extent, but only
to the extent that such untrue statement or omission is contained in any
information furnished in writing by such Investor to the Company specifically
for inclusion in such Registration Statement or Prospectus or amendment or
supplement thereto and that such information was substantially relied upon by
the Company in preparation of the Registration Statement or Prospectus or any
amendment or supplement thereto. In no event shall the liability of an Investor
be greater in amount than the dollar amount of the proceeds (net of all expense
paid by such Investor and the amount of any damages such holder has otherwise
been required to pay by reason of such untrue statement or omission) received by
such Investor upon the sale of the Registrable Securities included in the
Registration Statement giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder shall (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided that any person entitled to
indemnification hereunder shall have the right to employ separate
8
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person unless (a) the
indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person or (c) in the reasonable
judgment of any such person, based upon written advice of its counsel, a
conflict of interest exists between such person and the indemnifying party with
respect to such claims (in which case, if the person notifies the indemnifying
party in writing that such person elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim on behalf of such person); and
provided, further, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
hereunder, except to the extent that such failure to give notice shall
materially adversely affect the indemnifying party in the defense of any such
claim or litigation. It is understood that the indemnifying party shall not, in
connection with any proceeding in the same jurisdiction, be liable for fees or
expenses of more than one separate firm of attorneys at any time for all such
indemnified parties. No indemnifying party will, except with the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect of such claim or litigation.
(d) Contribution. If for any reason the indemnification provided for
in the preceding paragraphs (a) and (b) is unavailable to an indemnified party
or insufficient to hold it harmless, other than as expressly specified therein,
then the indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect the relative fault of the
indemnified party and the indemnifying party, as well as any other relevant
equitable considerations. No person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the 1933 Act shall be entitled to
contribution from any person not guilty of such fraudulent misrepresentation. In
no event shall the contribution obligation of a holder of Registrable Securities
be greater in amount than the dollar amount of the proceeds (net of all expenses
paid by such holder and the amount of any damages such holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission) received by it upon the sale of all the Registrable
Securities sold by such indemnified party which were covered by the relevant
Registration Statement or Prospectus contained therein.
6. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended only by a
writing signed by the parties hereto. The Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if the Company shall have obtained the written consent to such amendment,
action or omission to act, of the Investor.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made as set forth in the Purchase Agreement.
9
(c) Assignments and Transfers by Investor. This Agreement and all
the rights and obligations of the Investor hereunder may not be assigned or
transferred to any transferee or assignee except to a holder of any Notes,
Warrants or Registrable Securities which is a permitted assignee pursuant to the
assignment provisions of such instruments.
(d) Assignments and Transfers by the Company. This Agreement may not
be assigned by the Company without the prior written consent of Investor, except
that without the prior written consent of the Investor, but after notice duly
given, the Company shall assign its rights and delegate its duties hereunder to
any successor-in-interest corporation, and such successor-in-interest shall
assume such rights and duties, in the event of a merger or consolidation of the
Company with or into another corporation or the sale of all or substantially all
of the Company's assets.
(e) Benefits of the Agreement. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
permitted successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g) Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(h) Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms to the fullest extent permitted by law.
(i) Further Assurances. The parties shall execute and deliver all
such further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
10
(k) Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to principles of conflicts of law.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
11
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
THE COMPANY: NEXMED, INC.
By: /s/
-------------------------------
Name: X. Xxxxxx Mo, Ph.D.
Title: Chairman, President and CEO
THE INVESTORS: THE TAIL WIND FUND LTD.
By: TAIL WIND ADVISORY AND
MANAGEMENT LTD., as
investment manager
By: /s/
---------------------------
Name: Xxxxx Xxxxx
Title: CEO
SOLOMON STRATEGIC HOLDINGS, INC.
By: /s/
-------------------------------
Name: Xxxx X. XxxXxxxxx
Title: Director
12
SCHEDULE A
OTHER SHARES PERMITTED ON REGISTRATION STATEMENT
SELLING STOCKHOLDER SHARES OF COMMON STOCK
------------------- ----------------------
Xxxxxxxx & Co., Inc. 100,000 shares issuable upon exercise of
Warrants at $13.00 per share expiring 2/21/04.
Xxxxxxx Securities, Inc. 15,000 shares issuable upon exercise of
Warrants at $7.00 per share expiring 7/27/03.
Xxxxxxx Securities, Inc. All shares issuable upon exercise of 3-year
Warrants issued in connection with the
closing of the Purchase Agreement.
13
