NEXMED, INC. COMMON STOCK PURCHASE WARRANT
NEITHER
THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS AND NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE
OF THIS WARRANT MAY 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.
November
30, 2006
NEXMED,
INC.
Void
after November 29, 2010
This
Warrant (the “Warrant”)
entitles METRONOME
LPC 1, INC.,
a
Delaware corporation,
including
any successors or assigns, the “Holder”),
for
value received, to purchase from NEXMED,
INC.,
a
Nevada corporation, at any time and from time to time, subject to the terms
and
conditions set forth herein, during the period starting from 5:00 p.m. on the
Initial Exercise Date to 5:00 p.m., Eastern time, on the Expiration Date, at
which time this Warrant shall expire and become void, all or any portion of
the
vested Warrant Shares at the Exercise Price. This Warrant also is subject to
the
following terms and conditions:
1. Definitions.
As used
in this Warrant, the following terms shall have the respective meanings set
forth below or elsewhere in this Warrant as referred to below:
“Additional
Stock” has the meaning set forth in Section
4.5(ii).
“Affiliate”
of any Person means any Person that, directly or indirectly, through one or
more
intermediaries, controls, is controlled by, or is under common control with,
such Person, as such terms are used and construed under Rule 144 of the
Securities Act of 1933.
“Closing
Date” means the date of the closing of the transactions contemplated under the
Purchase Agreement.
“Common
Stock” means the common stock, $.001 par value per share, of the Company
(including any securities into which or for which such shares may be exchanged
for, or converted into, pursuant to any stock dividend, stock split, stock
combination, recapitalization, reclassification, reorganization or other similar
event).
“Common
Stock Outstanding” has the meaning set forth in Section
4.5(i)(A).
“Company”
means NexMed, Inc., a Nevada corporation.
“Exercise
Price” means, as applicable and as adjusted from time to time pursuant to the
terms of this Warrant, a price per share equal to $0.5535; provided, however,
the adjustments set forth in Section
4.5
shall
not in any event reduce the Exercise price to a price less than $0.48
per
share, which figure shall be appropriately and equitably adjusted for any stock
splits, stock dividends, spin-offs and similar such events.
“Expiration
Date” means November 29, 2010, or such earlier date as may result pursuant to
Section
4.6.
“Fair
Market Value” shall mean the value determined by the Company's Board of
Directors in good faith; provided, however, that where there exists a public
market for the Common Stock at the time of such exercise, the fair market value
per shall be the average of the closing bid and asked prices of the Common
Stock
quoted in the Over-The-Counter Market Summary or the last reported sale price
of
the Common Stock or the closing price quoted on the Nasdaq Capital Market or
on
any exchange on which the Common Stock is listed, whichever is applicable,
as
published in the Western Edition of The Wall Street Journal for the five trading
days prior to the date of determination of Fair Market Value.
“Holder”
has the meaning set forth in the preamble of this Warrant.
"Initial
Exercise Date" means November 30, 2006.
“Person”
(whether or not capitalized) means an individual, entity, partnership, limited
liability company, corporation, association, trust, joint venture,
unincorporated organization, and any government, governmental department or
agency or political subdivision thereof.
“Purchase
Agreement” means that certain Securities Purchase Agreement dated November 30,
2006, by and between the Company, NexMed (U.S.A.), Inc. and Metronome LPC 1,
Inc.
“SEC”
means the Securities and Exchange Commission.
“Warrant
Shares” means an aggregate of 500,000 shares of Common Stock, after giving
effect to all adjustments thereto provided for herein, including, without
limitation, those set forth in Section
4
hereof.
2. Exercise
of Warrant
2.1. Method
of Exercise; Vesting.
Subject
to all of the terms and conditions hereof, this Warrant may be exercised in
whole or in part, at any time and from time to time during the period commencing
on the Initial Exercise Date and ending on the Expiration Date. Exercise shall
be by presentation and surrender to the Company at its principal office of
this
Warrant and the notice and subscription form annexed hereto, executed by the
Holder, which shall indicate the number of shares for which the Holder intends
to exercise this Warrant, together with payment to the Company in accordance
with Section
3
hereof
in an amount equal to the product of the Exercise Price multiplied by the number
of Warrant Shares being purchased upon such exercise. Upon and as of receipt
by
the Company of such properly completed and duly executed notice and subscription
form accompanied by payment as herein provided, the Holder shall be deemed
to be
the Holder of record of the Warrant Shares issuable upon such exercise,
notwithstanding that the stock transfer books of the Company shall then be
closed or that certificates representing such Warrant Shares shall not then
actually be, or have been, delivered to the Holder.
2
2.2. Delivery
of Stock Certificates on Exercise.
As soon
as practicable after the exercise of this Warrant, and in any event within
three
(3) business days thereafter, the Company, at its expense, and in accordance
with applicable securities laws, will cause to be issued in the name of and
delivered to the Holder, or as the Holder may direct (subject in all cases,
to
the provisions of Section
6
hereof),
a certificate or certificates for the number of Warrant Shares purchased by
the
Holder on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied
by
the Fair Market Value.
2.3. Shares
To Be Fully Paid and Nonassessable.
All
Warrant Shares issued upon the exercise of this Warrant shall be validly issued,
fully paid and nonassessable, free of all liens, taxes, charges and other
encumbrances or restrictions on sale (other than those set forth
herein).
2.4. Fractional
Shares.
No
fractional shares of Common Stock or scrip representing fractional shares of
Common Stock shall be issued upon the exercise of this Warrant. With respect
to
any fraction of a share of Common Stock called for upon any exercise hereof,
the
Company shall make a cash payment to the Holder as set forth in Section
2.2
hereof.
2.5. Issuance
of New Warrants; Company Acknowledgment.
Upon
any partial exercise of this Warrant, the Company, at its expense, will
forthwith and, in any event within three (3) business days, issue and deliver
to
the Holder a new warrant or warrants of like tenor, registered in the name
of
the Holder, exercisable, in the aggregate, for the balance of the Warrant
Shares. Moreover, the Company shall, at the time of any exercise of this
Warrant, upon the request of the Holder, acknowledge in writing its continuing
obligation to afford to the Holder any rights to which the Holder shall continue
to be entitled after such exercise in accordance with the provisions of this
Warrant; provided, however, that if the Holder shall fail to make any such
request, such failure shall not affect the continuing obligation of the Company
to afford to the Holder any such rights.
2.6. Payment
of Taxes and Expenses.
The
Company shall pay any recording, filing, stamp or similar tax which may be
payable in respect of any transfer involved in the issuance of, and the
preparation and delivery of certificates (if applicable) representing, (i)
any
Warrant Shares purchased upon exercise of this Warrant and/or (ii) new or
replacement warrants in the Holder's name or the name of any transferee of
all
or any portion of this Warrant.
3. Payment
of Exercise Price.
The
Exercise Price for the Warrant Shares being purchased may be paid (i) in cash,
by certified check or by wire transfer to an account designated in writing by
the Company and (ii) by cancellation of indebtedness owing from the Company
to
the Holder or (iii) any combination of the methods described in the foregoing
clauses (i) and (ii). In lieu of exercising this Warrant via clauses (i)-(iii)
in this Section
3,
the
Holder may elect to receive shares equal to the value of this Warrant (or the
portion thereof being canceled) by surrender of this Warrant, in which event
the
Company shall issue to the Holder a number of shares of Common Stock of the
Company computed using the following formula:
3
X=Y
(A-B)
A
| X= |
the
number of Shares to be issued to the
Holder;
|
| Y= |
the
number of Shares purchasable under this Warrant or, if only a portion
of
the Warrant
is being exercised, the portion of the Warrant being cancelled (at
the
date of
such calculation);
|
| A= |
the
Fair Market Value (as defined below) of one Share (at the date of
such
calculation);
and
|
| B= |
the
Exercise Price (as adjusted to the date of such
calculation).
|
If
the
above calculation results in a negative number, then no shares of Common Stock
shall be issued or issuable upon conversion of this Warrant.
4. Adjustment
of Exercise Price and Warrant Shares.
The
Exercise Price and Warrant Shares issuable upon exercise of this Warrant shall
be subject to adjustment from time to time as provided in this Section
4.
Upon
each adjustment of the Exercise Price pursuant to Section
4.1
or
4.2,
the
Holder shall thereafter be entitled to purchase, at the Exercise Price resulting
from such adjustment, and the number of Warrant Shares subject to this Warrant
shall be deemed adjusted to represent, the number of Warrant Shares obtained
by
multiplying the Exercise Price in effect immediately prior to the adjustment
of
the Exercise Price by the number of Warrant Shares purchasable hereunder
immediately prior to the adjustment of the Exercise Price and dividing the
product thereof by the Exercise Price resulting from such
adjustment.
4.1. Subdivision
or Combination of Stock.
If at
any time or from time to time after the date hereof, the Company shall subdivide
(by way of stock dividend, stock split or otherwise) its outstanding shares
of
Common Stock, the Exercise Price in effect immediately prior to such subdivision
shall be reduced proportionately, and conversely, in the event the outstanding
shares of Common Stock shall be combined (whether by stock combination, reverse
stock split or otherwise) into a smaller number of shares, the Exercise Price
in
effect immediately prior to such combination shall be increased proportionately.
The Exercise Price, as so adjusted, shall be readjusted in the same manner
upon
the happening of any successive event or events described in this Section
4.1.
4.2. Adjustment
for Stock Dividends.
If at
any time after the date hereof, the Company shall declare a dividend or make
any
other distribution upon any class or series of stock of the Company payable
in
shares of Common Stock or securities convertible into shares of Common Stock,
the Exercise Price shall be adjusted proportionately to reflect the issuance
of
any shares of Common Stock or convertible securities, as the case may be,
issuable in payment of such dividend or distribution. The Exercise Price as
so
adjusted, shall be readjusted in the same manner upon the happening of any
successive event or events described in this Section
4.2.
4
4.3. Adjustments
for Reclassifications.
If the
Warrant Shares issuable upon the exercise of this Warrant shall be changed
into
the same or a different number of shares of any class(es) or series of stock,
whether by reclassification or otherwise (other than an adjustment under
Sections
4.1
and
4.2
or a
merger, consolidation, or sale of assets provided for under Section
4.4),
then
and in each such event, the Holder hereof shall have the right thereafter to
convert each Warrant Share into the kind and amount of shares of stock and
other
securities and property receivable upon such reclassification, or other change
by holders of the number of shares of Warrant Shares into which such Warrant
Shares would have been convertible immediately prior to such reclassification
or
change, all subject to successive adjustments thereafter from time to time
pursuant to and in accordance with, the provisions of this Section
4.
4.4. Adjustments
for Merger or Consolidation.
In the
event that, at any time or from time to time after the date hereof, the Company
shall (a) effect a reorganization, (b) consolidate with or merge into any other
Person, or (c) sell or transfer all or substantially all of its properties
or
assets or more than 50% of the voting capital stock of the Company (whether
issued and outstanding, newly issued, from treasury, or any combination thereof)
to any other person under any plan or arrangement contemplating the
consolidation or merger, sale or transfer, or dissolution of the Company, then,
in each such case, the Holder, upon the exercise of this Warrant as provided
in
Section
2.1
hereof
at any time or from time to time after the consummation of such reorganization,
consolidation, merger or sale or the effective date of such dissolution, as
the
case may be, shall receive, in lieu of the Warrant Shares issuable on such
exercise immediately prior to such consummation or such effective date, as
the
case may be, the stock and property (including cash) to which the Holder would
have been entitled upon the consummation of such consolidation or merger, or
sale or transfer, or in connection with such dissolution, as the case may be,
if
the Holder had so exercised this Warrant immediately prior thereto (assuming
the
payment by the Holder of the Exercise Price therefor as required hereby in
a
form permitted hereby, which payment shall be included in the assets of the
Company for the purposes of determining the amount available for distribution),
all subject to successive adjustments thereafter from time to time pursuant
to,
and in accordance with, the provisions of this Section
4.
4.5. Exercise Price
Adjustments of Warrant for Certain Dilutive Issuances.
The
Exercise Price shall be subject to adjustment from time to time as
follows:
(i)
(A) If
the
Company issues, on or after the date hereof any Additional Stock (as defined
below) without consideration or for a consideration per share less than the
Exercise Price in effect immediately prior to the issuance of such Additional
Stock, the Exercise Price shall forthwith (except as otherwise provided in
this
clause (i)) be adjusted to a price determined by multiplying such Exercise
Price
by a fraction, the numerator of which shall be the number of shares of Common
Stock Outstanding (as defined below) immediately prior to such issuance plus
the
number of shares of Common Stock that the aggregate consideration received
by
the Company for such issuance would purchase at such Exercise Price; and the
denominator of which shall be the number of shares of Common Stock Outstanding
(as defined below) immediately prior to such issuance plus the number of shares
of such Additional Stock. For purposes of this Section
4.5(i)(A),
the
term “Common
Stock Outstanding”
shall
mean and include the following: (1) outstanding Common Stock, (2) Common Stock
issuable upon exercise of outstanding stock options and (3) Common Stock
issuable upon exercise of outstanding warrants. Shares described in (1) through
(3) above shall be included whether vested or unvested, whether contingent
or
non-contingent and whether exercisable or not yet exercisable.
5
(B) No
adjustment of the Exercise Price for the Warrant shall be made in an amount
less
than one cent per share, provided that any adjustments that are not required
to
be made by reason of this sentence shall be carried forward and shall be either
taken into account in any subsequent adjustment made prior to three (3) years
from the date of the event giving rise to the adjustment being carried forward,
or shall be made at the end of three (3) years from the date of the event giving
rise to the adjustment being carried forward. Except to the limited extent
provided for in Sections
4.5(i)(E)(3)
and
4.5(i)(E)(4),
no
adjustment of the Exercise Price pursuant to this Section
4.5(i)
shall
have the effect of increasing the Exercise Price above the Exercise Price in
effect immediately prior to such adjustment.
(C) In
the
case of the issuance of Additional Stock for cash to an Affiliate, the
consideration shall be deemed to be the amount of cash paid therefor before
deducting any reasonable discounts, commissions or other expenses allowed,
paid
or incurred by the Company for any underwriting or otherwise in connection
with
the issuance and sale thereof.
(D) In
the
case of the issuance of the Additional Stock for a consideration in whole or
in
part other than cash, the consideration other than cash shall be deemed to
be
the fair market value thereof as determined in good faith by the Board of
Directors, irrespective of any accounting treatment.
(E) In
the
case of the issuance of options to purchase or rights to subscribe for Common
Stock, securities by their terms convertible into or exchangeable for Common
Stock or options to purchase or rights to subscribe for such convertible or
exchangeable securities, the following provisions shall apply for purposes
of
determining the number of shares of Additional Stock issued and the
consideration paid therefor:
(1) The
aggregate maximum number of shares of Common Stock deliverable upon exercise
(assuming the satisfaction of any conditions to exercisability, including
without limitation, the passage of time, but without taking into account
potential anti-dilution adjustments) of such options to purchase or rights
to
subscribe for Common Stock shall be deemed to have been issued at the time
such
options or rights were issued and for a consideration equal to the consideration
(determined in the manner provided in Sections 4.5(i)(C)
and
4.5(i)(D)),
if
any, received by the Company upon the issuance of such options or rights plus
the minimum exercise price provided in such options or rights (without taking
into account potential anti-dilution adjustments) for the Common Stock covered
thereby.
(2) The
aggregate maximum number of shares of Common Stock deliverable upon exercise
of,
or in exchange (assuming the satisfaction of any conditions to convertibility
or
exchangeability, including, without limitation, the passage of time, but without
taking into account potential anti-dilution adjustments) for, any such
convertible or exchangeable securities or upon the exercise of options to
purchase or rights to subscribe for such convertible or exchangeable securities
and subsequent exercise or exchange thereof shall be deemed to have been issued
at the time such securities were issued or such options or rights were issued
and for a consideration equal to the consideration, if any, received by the
Company for any such securities and related options or rights (excluding any
cash received on account of accrued interest or accrued dividends), plus the
minimum additional consideration, if any, to be received by the Company (without
taking into account potential anti-dilution adjustments) upon the exercise
or
exchange of such securities or the exercise of any related options or rights
(the consideration in each case to be determined in the manner provided in
Sections
4.5(i)(C)
and
4.5(i)(D)).
6
(3) In
the
event of any change in the number of shares of Common Stock deliverable or
in
the consideration payable to the Company upon exercise of such options or rights
or upon exercise of or in exchange for such convertible or exchangeable
securities, the Exercise Price of the Warrant, to the extent in any way affected
by or computed using such options, rights or securities, shall be recomputed
to
reflect such change, but no further adjustment shall be made for the actual
issuance of Common Stock or any payment of such consideration upon the exercise
of any such options or rights or the Exercise or exchange of such
securities.
(4) Upon
the
expiration of any such options or rights, the termination of any such rights
to
convert or exchange or the expiration of any options or rights related to such
convertible or exchangeable securities, the Exercise Price of the Warrants,
to
the extent in any way affected by or computed using such options, rights or
securities or options or rights related to such securities, shall be recomputed
to reflect the issuance of only the number of shares of Common Stock (and
convertible or exchangeable securities that remain in effect) actually issued
upon the exercise of such options or rights, upon the exercise or exchange
of
such securities or upon the exercise of the options or rights related to such
securities.
(5) The
number of shares of Additional Stock deemed issued and the consideration deemed
paid therefor pursuant to Sections
4.5(i)(E)(1)
and
4.5(i)(E)(2)
shall be appropriately adjusted to reflect any change, termination or expiration
of the type described in either Sections
4.5(i)(E)(3)
or
4.5(i)(E)
(4).
(ii) “Additional
Stock”
shall
mean any shares of Common Stock issued (or deemed to have been issued pursuant
to Section
4.5(i)(E))
by the
Company on or after the Closing Date other than:
(A) Common
Stock issued pursuant to a transaction described in Section
4
hereof;
(B) Common
Stock issued pursuant to stock option plan(s) adopted by the
Company.
(C) Common
Stock issued pursuant to an underwritten public offering;
(D) Common
Stock issued in connection with a bona fide business acquisition of or by the
Company, whether by merger, consolidation, sale of assets, sale or exchange
of
stock or otherwise, approved by the Company’s Board of Directors;
(E) Common
Stock issued or deemed issued pursuant to Section
4.5(i)(E)
as a
result of a decrease in the Exercise Price of any series of Common Stock
resulting from the operation of this Section
4.5;
(F) Common
Stock issued for cash, or the foregiveness of bona fide indebtedness of the
Company, to any non-Affiliate; and
7
(G) Common
Stock issued to pay interest on Senior Secured Note(s) or the Tailwind Debt
(each as defined in the Purchase Agreement).
4.6. Continuation
of Terms.
Upon
any reorganization, consolidation, merger or transfer (and any dissolution
following any such transfer) referred to in this Section
4,
this
Warrant shall continue in full force and effect and the terms hereof shall
be
applicable to the shares of Common Stock and other securities and property
receivable upon the exercise of this Warrant after the consummation of such
reorganization, consolidation or merger or the effective date of dissolution
following any such transfer, as the case may be, and shall be binding upon
the
issuer of any such Common Stock or other securities, including, in the case
of
any such transfer, the Person acquiring all or substantially all of the
properties or assets or more than 50% of the voting capital stock of the Company
(whether issued and outstanding, newly issued or from treasury or any
combination thereof), whether or not such Person shall have expressly assumed
the terms of this Warrant.
4.7. Certificate
as to Adjustments.
Upon
the occurrence of each adjustment or readjustment of the Exercise Price and
number of Warrant Shares pursuant to this Section
4,
this
Warrant shall, without any action on the part of the Holder, be adjusted in
accordance with this Section
4,
and the
Company, at its expense, promptly shall compute such adjustment or readjustment
in accordance with the terms hereof and prepare and furnish to the Holder a
certificate setting forth such adjustment or readjustment, showing in detail
the
facts upon which such adjustment or readjustment is based. The Company will
forthwith send a copy of each such certificate to the Holder in accordance
with
Section
9.4
below.
5. Notices
of Record Date.
Upon
(a) any establishment by the Company of a record date of the holders of any
class of securities for the purpose of determining the holders thereof who
are
entitled to receive any dividend or other distribution, or right or option
to
acquire securities of the Company, or any other right, or (b) any capital
reorganization, reclassification, recapitalization, merger or consolidation
of
the Company with or into any other corporation, any transfer of all or
substantially all the assets of the Company, or any voluntary or involuntary
dissolution, liquidation or winding up of the Company, or the sale, in a single
transaction, of a majority of the Company’s voting stock (whether newly issued,
or from treasury, or previously issued and then outstanding, or any combination
thereof), the Company shall mail to the Holder at least ten (10) business days,
or such longer period as may be required by law, prior to the record date
specified therein, a notice specifying (i) the date established as the record
date for the purpose of such dividend, distribution, option or right and a
description of such dividend, distribution, option or right, (ii) the date
on
which any such reorganization, reclassification, transfer, consolidation,
merger, dissolution, liquidation or winding up, or sale is expected to become
effective and (iii) the date, if any, fixed as to when the holders of record
of
Common Stock shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, transfer, consolidation, merger, dissolution, liquidation
or
winding up.
6. Exchange
of Warrant.
Subject
to the provisions of Section
7
hereof
(if and to the extent applicable), this Warrant shall be exchangeable, upon
the
surrender hereof by the Holder at the principal office of the Company, for
new
warrants of like tenor, each registered in the name of the Holder or in the
name
of such other persons as the Holder may direct (upon payment by the Holder
of
any applicable transfer taxes). Each of such new warrants shall be exercisable
for such number of Warrant Shares as the Holder shall direct, provided that
all
of such new warrants shall represent, in the aggregate, the right to purchase
the same number of Warrant Shares and cash, securities or other property, if
any, which may be purchased by the Holder upon exercise of this Warrant at
the
time of its surrender.
8
7. Transfer
Provisions, etc.
7.1. Legends.
Each
certificate representing any Warrant Shares issued upon exercise of this
Warrant, and of any shares of Common Stock into which such Warrant Shares may
be
converted, shall bear the following legend:
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED OR SOLD IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR PURSUANT TO
AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, REGISTRATION
UNDER
SAID ACT.”
7.2. Mechanics
of Transfer.
(a) Any
transfer of all or any portion of this Warrant (and the Warrant Shares), or
of
any interest herein or therein, that is otherwise in compliance with applicable
law shall be effected by surrendering this Warrant to the Company at its
principal office, together with a duly executed form of assignment, in the
form
attached hereto. In the event of any such transfer of this Warrant, the Company
shall issue a new warrant or warrants of like tenor to the transferee(s),
representing, in the aggregate, the right to purchase the same number of Warrant
Shares and cash, securities or other property, if any, which may be purchased
by
the Holder upon exercise of this Warrant at the time of its surrender.
(b) In
the
event of any transfer of all or any portion of this Warrant in accordance with
Section
7.2(a)
above,
the Company shall issue (i) a new warrant of like tenor to the transferee,
representing the right to purchase the number of Warrant Shares, and cash,
securities or other property, if any, which were purchasable by the Holder
of
the transferred portion of this Warrant, and (ii) a new warrant of like tenor
to
the Holder, representing the right to purchase the number of Warrant Shares,
and
cash, securities or other property, if any, purchasable by the Holder of the
un-transferred portion of this Warrant. Until this Warrant or any portion
thereof is transferred on the books of the Company, the Company may treat the
Holder as the absolute holder of this Warrant and all right, title and interest
therein for all purposes, notwithstanding any notice to the
contrary.
7.3. No
Restrictions on Transfer.
Subject
to the Company’s receipt of representations from the transferee comparable to
those in Sections 5.5, 5.6, and 5.8 of the Purchase Agreement, to the extent
applicable, and compliance with applicable securities laws, this Warrant and
any
portion hereof, the Warrant Shares and the rights hereunder may be transferred
by the Holder in its sole discretion at any time and to any Person or Persons,
including without limitation Affiliates and affiliated groups of such Holder,
without the consent of the Company.
7.4. Warrant
Register.
The
Company shall keep at its principal office a register for the registration,
and
registration of transfers, of the Warrants. The name and address of each Holder
of one or more of the Warrants, each transfer thereof and the name and address
of each transferee of one or more of the Warrants shall be registered in such
register. The Company shall give to any Holder of a Warrant promptly upon
request therefor, a complete and correct copy of the names and addresses of
all
registered Holders of the Warrants.
9
8. Lost,
Stolen or Destroyed Warrant.
Upon
receipt by the Company of evidence satisfactory to it of loss, theft,
destruction or mutilation of this Warrant and, in the case of loss, theft or
destruction, on delivery of a customary affidavit of the Holder and indemnity
agreement, or, in the case of mutilation, upon surrender of this Warrant, the
Company at its expense will execute and deliver, or will instruct its transfer
agent to execute and deliver, a new Warrant of like tenor and date, and any
such
lost, stolen or destroyed Warrant thereupon shall become void.
9. General.
9.1. Authorized
Shares, Reservation of Shares for Issuance.
At all
times while this Warrant is outstanding, the Company shall maintain its
corporate authority to issue, and shall have authorized and reserved for
issuance upon exercise of this Warrant, such number of shares of Common Stock,
any other capital stock or other securities as shall be sufficient to perform
its obligations under this Warrant (after giving effect to any and all
adjustments to the number and kind of Warrant Shares purchasable upon exercise
of this Warrant).
9.2. No
Impairment.
The
Company will not, by amendment of its Certificate of Incorporation or through
any reorganization, transfer of assets, consolidation, merger, dissolution,
issuance or sale of securities, sale or other transfer of any of its assets
or
properties, or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of
all
such action as may be necessary or appropriate in order to protect the rights
of
the Holder hereunder against impairment. Without limiting the generality of
the
foregoing, the Company (a) will not increase the par value of any shares of
Common Stock receivable upon the exercise of this Warrant above the amount
payable therefor on such exercise, and (b) will take all action that may be
necessary or appropriate in order that the Company may validly and legally
issue
fully paid and nonassessable shares of Common Stock upon the exercise of this
Warrant.
9.3. No
Rights as Stockholder.
The
Holder shall not be entitled to vote or to receive dividends or to be deemed
the
holder of Common Stock that may at any time be issuable upon exercise of this
Warrant for any purpose whatsoever, nor shall anything contained herein be
construed to confer upon the Holder any of the rights of a stockholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or withhold consent
to any corporate action (whether upon any recapitalization, issuance or
reclassification of stock, change of par value or change of stock to no par
value, consolidation, merger or conveyance or otherwise), or to receive notice
of meetings (except to the extent otherwise provided in this Warrant), or to
receive dividends or subscription rights, until the Holder shall have exercised
this Warrant and been issued Warrant Shares in accordance with the provisions
hereof.
9.4. Notices.
All
notices, requests, consents and other communications hereunder shall be in
writing and shall be deemed to have been given if personally delivered or
delivered by overnight courier or mailed by first class registered or certified
mail, postage prepaid, return receipt requested, or sent by fax machine,
addressed as follows:
10
(a) if
to the
Company at:
NexMed,
Inc.
00
Xxxx
Xxxxxx Xxxxx
Xxxx
Xxxxxxx, Xxx Xxxxxx
Fax:
Attn:
with
copies to:
Xxxxxx
Xxxxxx Xxxxxxxx LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Fax:
(000) 000-0000
Attn:
Xxxxxx X. Xxxx
(b) if
to the
Holder, at the Holder's address appearing in the books maintained by the
Company.
10. Amendment
and Waiver.
No
failure or delay of the Holder in exercising any power or right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Holder
are
cumulative and not exclusive of any rights or remedies which it would otherwise
have. The terms of this Warrant may be amended, modified or waived only with
the
written consent of the Company and the Holder.
11. Governing
Law.
This
Warrant shall be governed by and construed in accordance with the laws of the
State of Delaware, as such laws are applied to contracts entered into and wholly
to be performed within the State of Delaware and without giving effect to any
principles of conflicts or choice of law that would result in the application
of
the laws of any other jurisdiction.
12. Covenants
To Bind Successor and Assigns.
All
covenants, stipulations, promises and agreements in this Warrant contained
by or
on behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
13. Severability.
In case
any one or more of the provisions contained in this Warrant shall be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any
way
be affected or impaired thereby. The parties shall endeavor in good faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to
that
of the invalid, illegal or unenforceable provisions.
11
14. Construction.
The
definitions of this Warrant shall apply equally to both the singular and the
plural forms of the terms defined. Wherever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The
section and paragraph headings used herein are for convenience of reference
only, are not part of this Warrant and are not to affect the construction of
or
be taken into consideration in interpreting this Warrant.
15. Remedies.
The
Holder, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of
its
rights under this Warrant. The Company agrees that monetary damages would not
be
adequate compensation for any loss incurred by reason of a breach by it of
the
provisions of this Warrant and hereby agrees to waive the defense in any action
for specific performance that a remedy at law would be adequate. In any action
or proceeding brought to enforce any provision of this Warrant or where any
provision hereof is validly asserted as a defense, the successful party to
such
action or proceeding shall be entitled to recover reasonable attorneys' fees
in
addition to any other available remedy.
IN
WITNESS WHEREOF,
the
Company has executed this Common Stock Purchase Warrant as of November 30,
2006.
|
NEXMED,
INC.
By:/s/
Xxxx
Xxxxxxxx
Name: Xxxx
Xxxxxxxx
Title:
Vice President and Chief Financial
Officer
|
12
NOTICE
AND
SUBSCRIPTION
| To: | NEXMED, INC. | Date: | |||
The
undersigned hereby irrevocably elects to exercise the right of purchase
represented by the attached Warrant for, and to exercise thereunder, __________
shares of Common Stock, of NEXMED, INC., a Nevada corporation, and tenders
herewith payment of $__________, representing the aggregate purchase price
for
such shares based on the price per share provided for in such Warrant. Such
payment is being made in accordance with [Section 3(i)] [Section 3(ii)] [Section
3(iii)] of the attached Warrant.
Please
issue a certificate or certificates for such shares of Common Stock in the
following name or names and denominations and deliver such certificate or
certificates to the person or persons listed below at their respective addresses
set forth below:
If
said
number of shares of Common Stock shall not be all the shares of Common Stock
issuable upon exercise of the attached Warrant, a new Warrant is to be issued
in
the name of the undersigned for the balance remaining of such shares of Common
Stock less any fraction of a share of Common Stock paid in cash.
| Dated: ___________, ____ | |
| Signature |
FORM
OF ASSIGNMENT
(To
be
executed upon assignment of Warrant)
For
value
received, __________________________________ hereby sells, assigns and transfers
unto __________________ the attached Warrant [__% of the attached Warrant],
together with all right, title and interest therein, and does hereby irrevocably
constitute and appoint ____________________ attorney to transfer said Warrant
[said percentage of said Warrant] on the books of NexMed, Inc., a Nevada
corporation, with full power of substitution in the premises.
If
not
all of the attached Warrant is to be so transferred, a new Warrant is to be
issued in the name of the undersigned for the balance of said
Warrant.
The
undersigned hereby agrees that it will not sell, assign, or transfer the right,
title and interest in and to the Warrant unless applicable federal and state
securities laws have been complied with.
| Dated: ___________, ____ | |
| Signature |
