AMENDMENT NO. 2 TO RIGHTS AGREEMENT
Exhibit
4.1
AMENDMENT
NO. 2 TO RIGHTS AGREEMENT
This AMENDMENT NO. 2 TO RIGHTS
AGREEMENT (this “Amendment”) is hereby
entered into as of December 8, 2009, by and between NexMed, Inc., a Nevada
corporation (the “Company”) and ▇▇▇▇▇
Fargo Bank, N.A., as Rights Agent (the “Rights
Agent”).
WHEREAS, the Company and the Rights
Agent are parties to that certain Rights Agreement, dated as of April 3, 2000,
by and between the Company and the Rights Agent, as amended (the “Rights Agreement”);
and
WHEREAS, pursuant to that certain
Agreement and Plan of Merger, dated as of November 20, 2009, by and among the
Company, BQ Acquisition Corp., Bio-Quant, Inc. (“Bio-Quant”), Ali
▇▇▇▇▇ ▇▇-▇▇▇▇▇▇, as Shareholder Representative, and the other parties thereto
(the “Merger
Agreement”) the Company has undertaken to amend the Rights Agreement as
set forth below.
NOW, THEREFORE, in consideration of the
premises and mutual agreements set forth herein, the parties hereto agree as
follows:
1. The
first sentence of Section 1(a) of the Rights Agreement shall be amended to read
in its entirety as follows:
(a) “Acquiring
Person” shall mean any Person who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner of 15% or more of the
shares of Common Stock then outstanding, but shall not include (i) the Company,
(ii) any Subsidiary of the Company, (iii) any employee benefit plan or of any
Subsidiary of the Company, (iv) any Person organized, appointed or established
by the Company for or pursuant to the terms of any such plan, (v) the
Grandfathered Stockholder, (vi) Southpoint Master Fund, LP or its Affiliates so
long as their aggregate beneficial ownership of Common Stock is less than 20% of
the shares of Common Stock then outstanding, or (vii) any Person who would
otherwise be an Acquiring Person as a result of its receipt of shares of Common
Stock (including, without limitation, shares of Common Stock issued in
satisfaction of the Notes (as defined in the Bio-Quant Merger Agreement) ) and
shares of Common Stock issued as equity awards or underlying any such equity
awards granted pursuant to Section 4.4 of the Bio-Quant Merger Agreement) in
connection with those transactions contemplated by the Agreement and Plan of
Merger, dated as of November 20, 2009, by and among the Company, Bio-Quant, Inc.
and the other parties thereto (the “Bio-Quant Merger Agreement”).
2. Except
as set forth herein, the provisions of the Rights Agreement shall remain in full
force and effect.
3. This
Amendment may be executed by the undersigned in one or more counterparts, each
of which when so executed, shall be deemed an original, and all said
counterparts when taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the
parties hereto have caused this Amendment No. 2 to the Rights Agreement to be
duly executed as of the date first set forth above.
| NEXMED, INC. | |||
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By:
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇ | |
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇ | ||
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Its:
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Chief Executive Officer | ||
| ▇▇▇▇▇ FARGO BANK, N.A. | |||
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||
|
Its:
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Vice President | ||