REGISTRATION RIGHTS AGREEMENT
Exhibit
10.3
This
Registration Rights Agreement (the “Agreement”) is made and entered into as of
this 30th day of June, 2008 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 or Registrable
Securities.
“Notes”
shall
mean the Company’s 7% Convertible Notes Due December 31, 2011 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 (without regard to any limitations on beneficial
ownership contained in the Notes) or other securities issued or issuable
to each
Holder or its permitted transferee or designee (i) upon conversion of the
Notes,
or (ii) upon any distribution with respect to, any exchange for or any
replacement of such Notes 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.
2. Registration.
(a) Registration
Statements.
Promptly following the closing of the purchase and sale of the Notes
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 (without regard to
any
limitations on beneficial ownership contained therein). 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
250,000 shares of Common Stock underlying warrants issued to Southpoint Master
Fund LP, 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 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. In the
event
any Registrable Securities are not covered by the Registration Statement,
the
Company shall promptly amend such Registration Statement or prepare and file
with the SEC a new Registration Statement in accordance with the terms hereof
in
order to cause such Registrable Securities to be covered by a Registration
Statement. If the Registration Statement covering the Registrable Securities
is
not filed within 30 days following the Closing Date, then the Company will
make
pro-rata payments to the Purchasers as liquidated damages and not as a penalty,
in an amount equal to 2% of the sum of the aggregate principal amount then
outstanding under the Notes for each month (or portion thereof) following
such
30th
day
during which such Registration Statement has not yet been filed. Each such
payment shall be due and payable within five (5) days of the end of each
month
(or ending portion thereof) until such Registration Statement is so filed.
Such
payments shall be in partial compensation to the Purchasers, and shall not
constitute the Purchasers’ exclusive remedy for such events.
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(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 an Approved Market, 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 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.
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(e) Registration
Defaults.
If (A)
the Registrable Securities specifically are not listed or included for quotation
on an Approved Market or trading of the Common Stock is suspended or halted
thereon, or (B) the Company fails, refuses or is otherwise unable to timely
issue Underlying Shares in accordance with the terms of the Notes, or unlegended
certificates for the Underlying Shares as required under the Agreements,
in each
case within ten (10) business days following the Purchaser’s written demand for
issuance of such Underlying Shares or certificates, then the Company will
make
pro-rata payments to the Purchasers as liquidated damages and not as a penalty,
in an amount equal to 2% of the sum of the aggregate principal amount then
outstanding under the Notes for each month (pro rated for partial months)
following the Registration Date during which any of the events described
in (A),
(B), (C) or (D) above occurs and is continuing (the “RRA Default Period”). Each
such payment shall be due and payable within five (5) days of the end of
each
month (or ending portion thereof) of the RRA Default Period until the
termination of the RRA Default Period. Such payments shall be in partial
compensation to the Purchasers, and shall not constitute the Purchasers’
exclusive remedy for such events. The RRA Default Period shall terminate
upon
(x) listing or inclusion and/or trading of the Registrable Securities on
an
Approved Market in the case of (A) above, and (y) delivery of such shares
in the
case of (B) above. The amounts payable as liquidated damages pursuant to
this
paragraph shall be payable in lawful money of the United States.
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 of the 1933 Act (but not less than one year following
the
Closing Date).
(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;
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(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;
(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;
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(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.
(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.
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(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 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.
7
(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 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.
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(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.
(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 or Registrable Securities which is a permitted assignee pursuant
to
the assignment provisions of such instruments.
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(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.
(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]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
written above.
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The
Company:
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NEXMED,
INC.
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By:
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/s/
Xxxxxx Xxx
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||
|
Name:
Xxxxxx Xxx
|
|||
|
Title:
President and CEO
|
|||
|
The
Investors:
|
THE
TAIL WIND FUND LTD.
|
||
|
By:
|
TAIL
WIND ADVISORY AND
|
||
|
MANAGEMENT
LTD., as
|
|||
|
investment
manager
|
|||
|
By:
|
/s/
Xxxxx Xxxxx
|
||
|
Name: Xxxxx
Xxxxx
|
|||
|
Title:
CEO
|
|||
|
SOLOMON
STRATEGIC HOLDINGS, INC.
|
|||
|
By:
|
/s/
Xxxxxx X. XxxXxxxxx
|
||
|
Name:
Xxxxxx X. XxxXxxxxx
|
|||
|
Title:
Director
|
|||
11
