PURCHASE AGREEMENT
Exhibit
10.1.
THIS
PURCHASE AGREEMENT ("Agreement") is made as of October 26, 2007 by and among
NEXMED, INC., a Nevada corporation (the "Company"), and TWIN RIVERS ASSOCIATES
LLC, a California limited liability company ("Purchaser").
RECITALS
In
consideration of the mutual promises made herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto agree as follows:
1
Definitions. In addition to those terms defined above and elsewhere in this
Agreement, for the purposes of this Agreement, the following terms shall have
the meanings here set forth:
1.1.
"Affiliate" means, with respect to any Person, any other Person which directly
or indirectly controls, is controlled by, or is under common control with,
such
Person, where "control" means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or
otherwise.
1.2.
"Agreements" means this Agreement, the Registration Rights Agreement, the
Subsidiary Guaranty, the Mortgage, the Environmental Compliance and
Indemnification Agreement, the Note and the Warrant.
1.3.
The
"Company" shall refer to the Company (as defined in the first paragraph hereof)
together with its subsidiaries wherever applicable (including without limitation
with respect to all representations of the Company unless the context otherwise
requires).
1.4.
"Closing" means the consummation of the transactions contemplated by this
Agreement, and "Closing Date" means the date of such Closing.
1.5.
“Environmental Compliance and Indemnification Agreement” means the agreement
executed by the Company and the Operating Subsidiary dated as of October 26,
2007 in the form attached as Exhibit G.
1.6.
"Material Adverse Effect" means a material adverse effect on the (i) condition
(financial or otherwise), business, assets, or results of operations of the
Company; (ii) ability of the Company to perform any of its material obligations
under the terms of the Agreements; or (iii) material rights and remedies of
a
Purchaser under the terms of the Agreements.
1.7.
"Mortgage" means collectively, (i) the Mortgage, Security Agreement and
Assignment of Leases and Rents relating to the property known as 00 Xxxx Xxxxxx
Xxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx executed by the Operating Subsidiary in favor
of
the Purchaser dated as of October 26, 2007, securing the Subsidiary Guaranty
of
the Note, and (ii) the Mortgage, Security Agreement and Assignment of Leases
and
Rents relating to the property known as 000 Xxxxxxx Xxxx, Xxxx Xxxxxxx, Xxx
Xxxxxx executed by the Operating Subsidiary in favor of the Purchaser dated
as
of October 26, 2007, securing the Subsidiary Guaranty of the Note both in the
form annexed hereto as Exhibit E.
1.8. "Note"
shall have the meaning set forth in Section 2.1(a).
1.9.
"Operating Subsidiary" means NexMed (U.S.A.), Inc., a Delaware corporation
which
is wholly-owned by the Company.
1.10.
"Person" means an individual, corporation, partnership, limited liability
company, trust, business trust, association, joint stock company, joint venture,
pool, syndicate, sole proprietorship, unincorporated organization, governmental
authority or any other form of entity not specifically listed
herein.
1.11.
"Purchase Price" shall have the meaning set forth in Section 2.1(a).
1.12.
“Registration Rights Agreement” means the agreement executed by the
Company and the Purchaser dated as of October 26, 2007 in the form attached
as
Exhibit C.
1.13.
"SEC" means the U.S. Securities and Exchange Commission.
1.14.
"SEC Filings" means the Company's Annual Report on Form 10-K for the fiscal
year
ended December 31, 2006 and all other reports filed by the Company pursuant
to
the 1934 Act since December 31, 2006.
1.15.
"Securities" shall have the meaning set forth in Section 2.1(a).
1.16.
"Subsidiary Guaranty" means the Subsidiary Guaranty, in the form attached hereto
as Exhibit D, executed by the Operating Subsidiary in favor of the Purchaser,
guaranteeing the Company's obligations under the Note.
1.17.
"Underlying Shares" means the shares of Common Stock issued or issuable pursuant
to the Warrant.
1.18.
"Warrant" shall have the meaning set forth in Section 2.1(a).
1.19.
"Warrant Shares" shall have the meaning set forth in Section
2.1(a).
1.20.
"1933 Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
1.21.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.
2
Purchase
and Sale of Note and Warrant.
2.1. Purchase
and Sale.
(a) The
Company has authorized the sale and issuance to the Purchaser of (i) the Note
due June 30, 2009, in an aggregate original principal amount of $3,000,000
(the
"Note") and (ii) warrants (the "Warrant") to purchase up to 450,000 shares
(the
"Warrant Shares") of the Company's common stock, par value $.001 per share
(the
"Common Stock"). The Note, the Warrants and the Warrant Shares are hereinafter
called, collectively the "Securities." The aggregate purchase price (the
"Purchase Price") for the Securities shall be $3,000,000. The Note and the
Warrant shall be in the forms attached hereto, respectively as Exhibits A and
B.
(b) Subject
to the terms and conditions of this Agreement, the Purchaser agrees to purchase
at the Closing (as defined below), and the Company agrees to sell and issue
to
the Purchaser at the Closing the Securities at the aggregate purchase price
equal to the Purchase Price.
Each of the Company and the Purchaser shall become a party to this Agreement
and
shall have the respective rights and obligations hereunder.
3 Closing.
(a) Closing
Procedure. The closing of the purchase and sale of the Securities shall take
place at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000, contemporaneously with the execution and delivery hereof by
the
Company and Purchaser of the executed definitive documents and cash (which
time
and place are designated as the "Closing").
(b) At
the
Closing, the Company shall deliver to the Purchaser the Note and the Warrant
against payment of the Purchase Price therefor by wire transfer of immediately
available funds to an account designated by the Company.
3.2
Closing Date Deliveries.
(a)
On
the
Closing Date, the Company shall deliver to the Purchaser:
(i) Note
in
the form attached as Exhibit A;
(ii) Warrant
in the form attached as Exhibit B;
(iii) The
executed Registration Rights Agreement in the form attached as Exhibit
C;
(iv) The
executed Subsidiary Guaranty in the form attached as Exhibit D and the executed
and acknowledged Mortgage in the form attached as Exhibit E, in each case
executed by the Operating Subsidiary;
(v) The
executed Environmental Compliance And Indemnification Agreement in a form
attached as Exhibit G and executed by the Company and the Operating
Subsidiary;
(vi) The
opinions of counsel referred to in Section 6.5 below; and
(vii)
A
certificate of the Secretary of the Company and of the Operating Subsidiary
(the
"Secretary's Certificates"), in form and substance satisfactory to the
Purchaser, certifying as follows:
(A).
that
attached to the Secretary's Certificate is a true and complete copy of the
Articles of Incorporation of the Company and the Operating Subsidiary, as
amended, including any and all certificates of designation;
(B).that
a
true copy of the Bylaws of the Company and the Operating Subsidiary, as amended
to the Closing Date, is attached to the Secretary's Certificate;
(C).
that
attached thereto are true and complete copies of the resolutions of the Board
of
Directors of the Company and of the Operating Subsidiary authorizing the
execution, delivery and performance of this Agreement and the documents,
instruments and certificates required to be executed by each in connection
herewith and approving the consummation of the transactions in the manner
contemplated hereby including, but not limited to, the authorization, execution,
issuance, and delivery of this Agreement, the Warrant, the Note, the Mortgage,
the Registration Rights Agreement, the Subsidiary Guaranty, and the
Environmental Compliance And Indemnification Agreement;
(D).the
names
and true signatures of the officers of the of the Company and of the Operating
Subsidiary signing this Agreement and all other documents to be delivered in
connection with this Agreement;
(E).
such
other matters as required by this Agreement; and
(F).
such
other matters as the Purchaser may reasonably request.
(b) On
the
Closing Date, the Purchaser shall deliver to the Company:
(i) The
Purchase Price; and
(ii) The
executed Registration Rights Agreement.
4
Representations
and Warranties of the Company. The Company hereby represents and warrants to
the
Purchaser that:
4.1.
Organization, Good Standing and Qualification. The Company is a corporation
duly
incorporated, validly existing and in good standing under the laws of Nevada
and
has all requisite corporate power and authority to carry on its business as
now
conducted and own its properties. The Company is duly qualified to do business
as a foreign corporation and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property makes such
qualification or licensing necessary unless the failure to so qualify would
not
be reasonably likely to result in a Material Adverse Effect. All of the
Company's subsidiaries are listed by name and jurisdiction on Schedule 4.1
attached hereto. All subsidiaries are wholly-owned by the Company. The Operating
Subsidiary is a wholly-owned subsidiary of the Company and owns all the
Mortgaged Property (as defined in the Mortgage).
4.2.
Authorization. The Company has full power and authority and has taken all
requisite action on the part of the Company, its officers, directors and
stockholders necessary for (i) the authorization, execution and delivery of
the
Agreements, (ii) authorization of the performance of all obligations of the
Company hereunder and under the Agreements, and (iii) the authorization,
issuance (or reservation for issuance) and delivery of the Securities. The
Agreements constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability, relating to or affecting creditors'
rights generally.
4.3.
Valid Issuance of the Warrant Shares. The Warrant Shares have been duly
authorized and validly reserved for issuance and upon issuance after payment
of
the exercise price in accordance with the Warrants, will be validly issued,
fully paid and non-assessable, and will be free of restrictions on transfer
other than restrictions on transfer under this Agreement and under applicable
state and federal securities laws.
4.4.
No
Material Adverse Change. Since December 31, 2006, except as disclosed and
described in the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2006 and the Company's Form 10-Qs filed with the SEC for the fiscal
quarters ending March 31, 2006 and June 30, 2006, or any other reports filed
by
the Company subsequent to such Form 10-K pursuant to the 1934 Act and filed
prior to the date hereof, there has not been:
(i) any
declaration or payment of any dividend, or any authorization or payment of
any
distribution, on any of the capital stock of the Company, or any redemption
or
repurchase of any securities of the Company;
(ii) any
transaction entered into by the Company other than in the ordinary course of
business; or
(iii) any
other
event or condition of any character that may have a Material Adverse
Effect.
4.5.
No
Conflict, Breach, Violation or Default; Compliance with Law. The execution,
delivery and performance of the Agreements by the Company and the issuance
and
sale of the Securities will not conflict with or result in a breach or violation
of any of the terms and provisions of, or constitute a default under (i) the
Company's Certificate of Incorporation (including any certificates of
designation) or the Company's Bylaws, both as in effect on the date hereof
(copies of which have been provided to the Purchaser before the date hereof),
or
(ii) except where it would not have a Material Adverse Effect, (A) any statute,
rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any of its
properties, or (B) any agreement or instrument to which the Company is a party
or by which the Company is bound or to which any of the properties of the
Company is subject. Except where it would not have a Material Adverse Effect,
the Company (i) is not in violation of any statute, rule or regulation
applicable to the Company or its assets, (ii) is not in violation of any
judgment, order or decree applicable to the Company or its assets, and (iii)
is
not in breach or violation of any agreement, note or instrument to which it
or
its assets are a party or are bound or subject. The Company has not received
notice from any Person of any claim or investigation that, if adversely
determined, would render the preceding sentence untrue or
incomplete.
4.6.
Tax
Returns, Payments and Elections. The Company has no tax liabilities other than
tax liabilities that have arisen in the ordinary course of business and which
are not past due or delinquent.
4.7.
Environmental Condition. The Company is not aware of any adverse environmental
condition affecting the Mortgaged Property (as defined in the
Mortgage).
4.8.
Certificates, Authorities and Permits. The Company possesses all certificates,
authorities or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by it and has not received any
notice of proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the Company,
would individually or in the aggregate have a Material Adverse
Effect.
4.9.
Litigation. Except as disclosed in the SEC Filings, there are no pending
actions, suits or proceedings against or affecting the Company or any of its
properties that, if determined adversely to the Company, would individually
or
in the aggregate have a Material Adverse Effect or would materially and
adversely affect the ability of the Company to perform its obligations under
the
Agreements, or which are otherwise material in the context of the sale of the
Securities; and to the Company's knowledge, no such actions, suits or
proceedings are threatened or contemplated.
4.10.
Insurance Coverage. The Company maintains in full force and effect insurance
coverage that the Company reasonably believes to be adequate against all
liabilities, claims and risks against which it is customary for comparably
situated companies to insure.
4.11.
Brokers and Finders. Neither the Purchaser nor the Company shall have any
liability or responsibility for the payment of any commission or any finder,
agent, broker or consultant fee to any third party in connection with or
resulting from this Agreement or the transactions contemplated by this Agreement
by reason of any agreement of or action taken by the Company, and the Company
shall not pay any such commission or fee.
5 Representations
and Warranties of the Purchaser. The Purchaser hereby represents and
warrants to the Company that:
5.1.
Organization and Existence. The Purchaser is a validly existing limited
liability company and has all requisite limited liability company power and
authority to invest in the Securities pursuant to this
Agreement.
5.2.
Conflicts. The execution and performance of the transactions contemplated by
this Agreement and the Related Agreements by the Purchaser and the compliance
with their respective provisions by the Purchaser will not (a) conflict with
or
violate the organizational and operational documents of the Purchaser, or (b)
require on the part of the Purchaser any filing with, or any permit,
authorization, consent or approval of any agency, bureau, commission, court,
authority, department, official, political subdivision, tribunal or other
instrumentality of any government so as to materially adversely effect on the
ability of the Purchaser to complete the transactions contemplated by this
Agreement, or (c) result in any violation or be in conflict with or constitute,
with or without the passage of time or giving of notice, either a default under
any mortgage,' indenture, agreement, instrument, judgment, order, writ, decree
or contract or an event that would materially adversely effect the ability
of
the Purchaser to complete the transactions contemplated by this
Agreement.
5.3.
Authorization. The execution, delivery and performance by the Purchaser of
this
Agreement and the Registration Rights Agreement have been duly authorized and
this Agreement and the Registration Rights Agreement will each constitute the
valid and legally binding obligation of the Purchaser, enforceable against
the
Purchaser in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability, relating to or affecting creditors' rights
generally.
5.4.
Reliance upon Purchaser's Representations. Purchaser understands that the
Securities, at the time of issuance, may not be registered under the Securities
Act on the ground that the sale provided for in this Agreement, and the issuance
of such Securities hereunder, is exempt from registration under the 1933 Act
pursuant to Section 4(2) thereof and Regulation D thereunder, and that the
Company's reliance on such exemption is predicated on the Purchaser's
representations set forth herein.
5.5.
Purchase Entirely for Own Account. The Securities to be received by the
Purchaser hereunder will be acquired for the Purchaser's own account, not as
nominee or agent, and not with a view to the resale or distribution of any
part
thereof in violation of securities laws, and the Purchaser has no present
intention of selling, granting any participation in, or otherwise distributing
the same in violation of securities laws. The Purchaser is not a registered
broker dealer or an entity engaged in the business of being a broker
dealer.
5.6.
Investment Experience; Economic Risk. Purchaser understands that an investment
in the Securities involves substantial risks. Purchaser is experienced in
evaluating and investing in private placement transactions of securities of
similar companies and acknowledges that Purchaser is able to fend for itself.
Purchaser has such knowledge and experience in financial and business matters
that Purchaser is capable of evaluating the merits and risks of the investment
in the Securities. Purchaser can bear the economic risk of Purchaser's
investment and is able, without impairing Purchaser's financial condition,
to
hold the Securities for an indefinite period of time and to suffer a complete
loss of Purchaser's investment.
5.7.
Disclosure of Information. The Purchaser has had an opportunity to receive
documents related to the Company and to ask questions of and receive answers
from the Company regarding the Company, its business and the terms and
conditions of the offering of the Securities and has received and read the
SEC
Filings filed by the Company via the SEC's XXXXX system. Neither such inquiries
nor any other due diligence investigation conducted by the Purchaser shall
modify, amend or affect the Purchaser's right to rely on the Company's
representations and warranties contained in this Agreement or made pursuant
to
this Agreement.
5.8.
Accredited Investor. Purchaser is an "accredited investor" as defined in Rule
501 (a) of Regulation D promulgated under the 0000 Xxx.
5.9.
Residence. Purchaser represents and warrants that its principal place of
business is in California.
5.10.
Restricted Securities. Purchaser understands and agrees that the Securities
are
characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such federal securities laws and
applicable regulations such Securities may be resold without registration under
the 1933 Act only in certain limited circumstances. In this connection,
Purchaser represents that it is aware of the current provisions of Rule 144
promulgated under the 1933 Act which permit limited resale of securities
purchased in a private placement subject to the satisfaction of certain
conditions, including, among other things, the existence of a public market
for
the securities, the availability of certain current public information about
the
Company, the resale occurring not less than one year after a party has purchased
and paid for the security to be sold, the sale being effected through a
"broker's transaction" or in transactions directly with a "market maker" and
the
number of shares being sold during any three month period not exceeding
specified limitations. The Purchaser understands that the Note, the Warrant
and
any Warrant Shares or securities issued in respect of or exchange for the Note
or Warrant Shares, may bear a legend substantially to the following effect
(except that the Warrant Shares shall not bear such legend if a registration
statement for such shares has been filed and declared effective for the Warrant
Shares prior to their issuance):
"THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND
MAY
NOT BE SOLD OR TRANSFERRED UNLESS THE REGISTRATION PROVISIONS OF THE SAID ACT
AND APPLICABLE STATE SECURITIES LAWS HAVE BEEN COMPLIED WITH OR UNLESS
COMPLIANCE WITH SUCH PROVISIONS IS NOT REQUIRED"
The
Securities may not be transferred by Purchaser unless either (i) they have
been
registered under the 1933 Act or (ii) registration is not required under the
1933 Act for the transfer of such Securities.
5.11.
No
General Solicitation. The Purchaser did not learn of the investment in the
Securities as a result of any public advertising or general
solicitation.
5.12.
Brokers or Finders. The Purchaser has not, and will not, incur, directly or
indirectly, as a result of any action taken by Purchaser, any liability for
brokerage or finders' fees or agents' commissions or any similar charges in
connection with this Agreement.
6.
Covenants
and Agreements of the Company.
6.1.
Note. On or prior to the Closing, the Company shall have executed and delivered
to Purchaser the Note.
6.2.
Warrant. On or prior to the Closing, the Company shall have executed and
delivered to Purchaser the Warrant.
6.3.
Subsidiary Guaranty. On or prior to the Closing, the Company shall assure that
the Operating Subsidiary has executed and delivered to Purchaser the Subsidiary
Guaranty.
6.4.
Mortgage. On or prior to the Closing, the Company shall assure that the
Operating Subsidiary has executed and delivered to Purchaser the
Mortgage.
6.5
Environmental Compliance and Indemnification Agreement. On or prior to Closing,
the Company shall have executed and delivered the Environmental Compliance
and
Indemnification Agreement and shall assure that the Operating Subsidiary has
executed and delivered the same.
6.6.
Registration Rights Agreement. On or prior to Closing, the Company shall have
executed and delivered to the Purchaser the Registration Rights
Agreement.
6.7.
Opinions of Counsel. On or prior to the Closing, the Company shall have
delivered to the Purchaser the opinions of legal counsel to the Company
substantially in the form attached hereto as Exhibits F(1), F(2), and
F(3).
6.8.
Registration. The Company will file a registration statement to register the
re-sale of the shares of Common Stock underlying all the Warrant Shares on
or
before November 30, 2007.
7.
Conditions
to Closing of Company
7.1. Representations
and Warranties. All representations and warranties of Purchaser contained in
this Agreement shall be true and correct as of the Closing.
7.2.
Payment of Purchase Price. The Company shall have received payment of the
Purchase Price from the Purchaser.
8.
Conditions
to Closing of Purchaser
8.1. Representations
and Warranties. All representations and warranties of Company contained in
this
Agreement shall be true and correct as of the Closing.
8.2.
Property Survey. The Purchaser shall have received a current survey of the
Mortgaged Property (as defined in the Mortgage) from the Company, acceptable
to
and certified to the Purchaser.
8.3.
Title Insurance. The Company shall have obtained, paid for and delivered to
the
Purchaser a commitment for the issuance of title insurance for the Purchaser
insuring the Mortgage, subject only to those exceptions reasonably acceptable
to
the Purchaser.
8.4
Environmental Assessment. The Purchaser shall have obtained a Phase I
Environmental assessment of the Mortgaged Property, acceptable to the
Purchaser.
8.5
Appraisal. The Purchaser shall have obtained an appraisal of the Mortgaged
Property acceptable to the Purchaser.
9.
Survival.
All representations and warranties contained in this Agreement shall be deemed
to be representations and warranties as of the date hereof and shall survive
the
execution and delivery of this Agreement and terminate two years from the date
of this Agreement except that the representations made in Section 4.6 shall
survive for a period equal to the applicable statute of
limitations.
10. Miscellaneous.
10.1.
Successors and Assigns. This Agreement may not be assigned by a party hereto
without the prior written consent of the other parties hereto which consent
may
not be unreasonably withheld or delayed. 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.
10.2.
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. This Agreement may be executed by
facsimile.
10.3.
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.
10.4.
Notices. Unless otherwise provided, any notice required or permitted under
this
Agreement shall be given in writing and shall be deemed effectively given only
by delivery to each party to be notified by (i) personal delivery, (ii) telex
or
telecopier, provided it is sent with electronic confirmation of complete
transmittal, or (iii) an internationally recognized overnight air courier,
addressed to the party to be notified at the address as follows, or at such
other address as such party may designate by ten days' advance written notice
to
the other party:
If
to the
Company:
NexMed,
Inc.
00
Xxxx
Xxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
Attention:
Chief Financial Officer
With
a
copy to:
Xxxxxx
Xxxxxx Xxxxxxxx LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
Attention:
Xxxxxx X. Xxxx, Esq.
If
to the
Purchaser:
Twin
Rivers Associates LLC
0
Xxxxxxxx Xxx
Xxxxxxxxx,
XX 00000
Attn:
Xxxxxxx Duck Jr.
Managing Member
With
a
copy to:
Xxxxx
Tulis Xxxxxxxxxxx Xxxxxx & Xxxxxx LLP
000
Xxxxxxxxxxxx Xxxx
Xxxxx
Xxxxxx, Xxx Xxxx 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
Attention:
Xxxxxx X. Xxxxxx, Esq.
Any
notice or other communication or deliveries hereunder shall be deemed delivered
(i) upon receipt, if delivered personally, (ii) if sent by facsimile, upon
receipt if received on a Business Day prior to 5:00 p.m. (Eastern Time), or on
the first Business Day following such receipt if received on a Business Day
after 5:00 p.m. (Eastern Time) or (iii) two (2) Business Days following deposit
with an internationally recognized overnight courier service.
10.5.
Expenses.
(a)
The
parties hereto shall pay their own costs and expenses in connection herewith,
except that the Company shall reimburse the Purchaser up to $10,000 for legal
expenses, up to $10,000 for the cost of a Phase I Environmental Assessment,
and
the cost of an appraisal of the Mortgaged Property (as defined in the Mortgage)
incurred in connection herewith, and the Company will reimburse the Purchaser
for the cost of a Phase II Environmental Assessment of the Mortgaged Property
if
the Phase I Environmental Assessment of the Mortgaged Property recommends that
a
Phase II Environmental Assessment be (and is) performed, all of which shall
be
paid upon Closing. Purchaser shall present invoices to the Company in support
of
actual expenses paid.
10.6.
Amendments and Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or
in a
particular instance and either retroactively or prospectively) upon prior
written consent by both parties, provided, however, that any such amendment
or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any Securities purchased under this Agreement at the time outstanding,
each future holder of all such securities, and the Company.
10.7.
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.
10.8.
Entire Agreement. This Agreement, including the Exhibits and Schedules hereto,
and the Registration Rights Agreement, the Note, the Warrant, the Subsidiary
Guaranty, the Mortgage and other documents contemplated hereby constitute the
entire agreement among the parties hereof with respect to the subject matter
hereof and thereof and supersede all prior agreements and understandings, both
oral and written, between the parties with respect to the subject matter
hereof.
10.9.
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.
10.10.
Applicable Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New Jersey without regard to principles of
conflicts of laws.
10.11.
Jurisdiction. The parties hereby agree that all actions or proceedings arising
directly or indirectly from or in connection with this Agreement shall be
litigated only in the Supreme Court of the State of New York or the United
States District Court for the Southern District of New York located in New
York
County, New York. The parties consent to the jurisdiction and venue of the
foregoing courts and consent that any process or notice of motion or other
application to either of said courts or a judge thereof may be served inside
or
outside the State of New York or the Southern District of New York by registered
mail, return receipt requested, directed to the party being served at its
address set forth in this Agreement (and service so made shall be deemed
complete three (3) days after the same has been posted as aforesaid) or by
personal service or in such other manner as may be permissible under the rules
of said courts. The Company and the Purchaser hereby waive any right to a jury
trial in connection with any litigation pursuant to this Agreement or the other
Agreements.
10.12.
Telecopy Execution and Delivery. A facsimile, telecopy or other reproduction
of
this Agreement may be executed by one or more parties to this Agreement, and
an
executed copy of this Agreement may be delivered by one or more parties to
this
Agreement by facsimile or similar electronic transmission device pursuant to
which the signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and effective for
all
purposes. At the request of any party to this Agreement, all parties to this
Agreement agree to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction of this Agreement.
10.13.
No
Jury Trial. The Company and the Purchaser, knowingly and voluntarily waive
any
and all rights they may have to a trial by jury with respect to any litigation
based on, or arising out of, under, or in connection with, this Purchase
Agreement and for any counterclaim therein.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
|
THE
COMPANY:
|
NEXMED, INC. | |
| |
|
|
| By: | /s/ Xxxx Xxxxxxxx | |
|
Xxxx Xxxxxxxx |
||
| Vice President and Chief Financial Officer | ||
|
THE
PURCHASER:
|
TWIN RIVERS ASSOCIATES LLC | |
| |
|
|
| By: | /s/ Xxxxxxx Duck Jr. | |
|
Xxxxxxx Duck Jr. |
||
|
Managing
Member
|
||
