COMMON STOCK AND WARRANT PURCHASE AGREEMENT by and among NexMed, Inc., as Issuer and Seller and the Purchasers named herein, as Purchasers January 23, 2006
by
and
among
NexMed,
Inc., as Issuer and Seller
and
the
Purchasers named herein, as Purchasers
January
23, 2006
Table
of Exhibits and Schedules
Exhibit
A Form
of
Warrant
Exhibit
B Form
of
Registration Rights Agreement
Exhibit
C Form
of
Opinion of Seller’s Counsel
Exhibit
D Form
of
Opinion of Nevada Counsel
| Schedule 1 | Purchasers and Shares of Common Stock and Warrants Purchased |
| Schedule 3.10 | Litigation |
| Schedule 3.11 | Absence of Certain Changes |
| Schedule 3.15 | Intellectual Property |
| Schedule 3.17 | Preemptive Rights |
| Schedule 3.19 | Subsidiaries and Investments |
| Schedule 3.20 | Capitalization |
| Schedule 3.21 | Options, Warrants, Rights |
| Schedule 3.22 | Employees, Employment Agreements and Employee Benefit Plans |
| Schedule 3.27 | Brokers |
2
COMMON
STOCK AND WARRANT PURCHASE AGREEMENT (the “Agreement”) dated as of January 23,
2006, by and among NexMed, Inc., a Nevada corporation (the “Seller”), and each
of the persons listed on Schedule
1
hereto
(each is individually referred to as a “Purchaser” and collectively, the
“Purchasers”).
W
I T N E
S S E T H:
WHEREAS,
each of the Purchasers is willing to purchase from the Seller, and the Seller
desires to sell to the Purchasers, shares of the Seller’s common stock, $0.001
par value (the “Common Stock”), and Common Stock Purchase Warrants in the form
of Exhibit A hereto (the “Warrants”) entitling the holders thereof to purchase
additional shares of Common Stock, for an aggregate purchase price of up to
$8
million, as more fully set forth herein.
NOW
THEREFORE, in consideration of the mutual promises and representations,
warranties, covenants and agreements set forth herein, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE
I
- PURCHASE AND SALE
1.1 Purchase
and Sale.
(a) On
the
terms and subject to the conditions set forth in this Agreement, at the Closing
(as defined in Section 2.2), the Seller will sell and each of the Purchasers
will purchase the number of shares of Common Stock set forth on Schedule
1
hereto at
a price per share equal to $1.11. In addition, each Purchaser shall receive
at
the Closing Warrants to purchase the number of shares (rounded to the nearest
whole share) of Common Stock equal to 40% of the number of Shares purchased
by
such Purchaser at Closing hereunder as set forth on Schedule
1
hereto.
(b) The
shares
of Common Stock to be issued upon Closing hereunder are referred to herein
as
the “Shares,” and the shares of Common Stock issuable upon exercise of the
Warrants are referred to herein as the “Warrant Shares.”
1.2 Terms
of the Warrants.
The
terms and provisions of the Warrants are more fully set forth in the form of
Common Stock Purchase Warrant, attached hereto as Exhibit
A.
1.3 Transfers;
Legends.
3
(a) Except
as
required by federal securities laws and the securities law of any state or
other
jurisdiction within the United States or as otherwise set forth in this
Agreement or the Related Documents, the Shares, Warrants and Warrant Shares
(collectively, the “Securities”) may be transferred, in whole or in part, by any
of the Purchasers at any time. Any such transfer shall be made by a Purchaser
in
accordance with applicable law. In connection with any transfer of Securities
other than pursuant to an effective registration statement under the Securities
Act of 1933, as amended (the “Securities Act”), or to the Seller, the Seller may
require the transferor thereof to furnish to the Seller an opinion of counsel
selected by the transferor, such counsel and the form and substance of which
opinion shall be reasonably satisfactory to the Seller and Seller’s counsel, to
the effect that such transfer does not require registration under the Securities
Act; provided, that in the case of a transfer pursuant to Rule 144 under the
Securities Act, no opinion shall be required if the transferor provides the
Seller with a customary seller’s representation letter, and if such sale is not
pursuant to subsection (k) of Rule 144, a customary broker’s representation
letter and Form 144.
Notwithstanding the foregoing, the Seller hereby consents to and agrees to
register on the books of the Seller and with any transfer agent for the
securities of the Seller, without any such legal opinion, any transfer of
Securities by a Purchaser to an Affiliate of such Purchaser, provided that
the
transferee certifies to the Seller that it is an Affiliate of such Purchaser
and
an “accredited investor” as defined in Rule 501(a) under the Securities Act and
that it is acquiring the Securities solely for investment purposes (subject
to
the qualifications hereof) and not with a view to, or for, resale, distribution
or fractionalization thereof in whole or in part in violation of the Securities
Act. Any transferee shall agree to be bound by the terms of the Registration
Rights Agreement and this Agreement. The Seller shall reissue certificates
evidencing the Securities upon surrender of certificates evidencing the
Securities being transferred in accordance with this Section 1.3(a). In
connection with any transfer of Warrants after the Registration Statement (as
defined in the Registration Rights Agreement) is declared effective under the
Securities Act, the transferor of such Warrants shall reimburse the Seller
for
its reasonable out of pocket costs in connection with such transfer (including
without limitation the reasonable attorneys fees for preparing and filing a
prospectus supplement with the SEC and/or delivering an updated opinion letter
to the Seller’s transfer agent). An “Affiliate” means any Person (as such term
is defined below) that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with
a
Person, as such terms are used in and construed under Rule 144 under the
Securities Act. With respect to a Purchaser, any investment fund or managed
account that is managed on a discretionary basis by the same investment manager
as such Purchaser will be deemed to be an Affiliate of such Purchaser. A
“Person” means any individual or corporation, partnership, trust, incorporated
or unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or subdivision of any thereof) or other
entity of any kind.
(b) The
certificates representing the Securities shall bear the following
legends:
“THE
SHARES REPRESENTED BY, OR ACQUIRABLE UPON EXERCISE OF SECURITIES EVIDENCED
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 UNLESS, IN THE OPINION OF COUNSEL
REASONABLY SATISFACTORY TO NEXMED, INC. (THE “COMPANY”), SUCH REGISTRATION IS
NOT REQUIRED.”
“THE
SALE,
TRANSFER OR ASSIGNMENT OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN REGISTRATION RIGHTS AGREEMENT
DATED AS OF JANUARY 23, 2006, AS AMENDED FROM TIME TO TIME, AMONG THE COMPANY
AND CERTAIN HOLDERS OF ITS OUTSTANDING SECURITIES. COPIES OF SUCH AGREEMENT
MAY
BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF THE COMPANY.”
4
ARTICLE
II
- PURCHASE PRICE AND CLOSING
2.1 Purchase
Price.
The
aggregate purchase price (the “Purchase Price”) to be paid by each Purchaser to
the Seller to acquire the Shares and the applicable Warrants shall be the total
amounts set forth opposite such Purchaser’s name on Schedule
1
hereto.
2.2 The
Closing.
The
closing of the transactions contemplated under this Agreement (the “Closing”)
will take place as promptly as practicable, but no later than five (5) business
days following satisfaction or waiver of the conditions set forth in Sections
6.1(a) and 6.2(a) (other than those conditions which by their terms are not
to
be satisfied or waived until the Closing), at the offices of Seller’s counsel.
The date on which the Closing occurs is the “Closing Date.”
ARTICLE
III - REPRESENTATIONS AND WARRANTIES OF THE SELLER
The
Seller
represents and warrants to the Purchasers as follows:
3.1 Corporate
Existence and Power; Subsidiaries.
The
Seller and its Subsidiaries are corporations duly incorporated, validly existing
and in good standing under the laws of the state in which they are incorporated,
and have all corporate powers required to carry on their business as now
conducted. The Seller and its Subsidiaries are duly qualified to do business
as
a foreign corporation and are in good standing in each jurisdiction where the
character of the property owned or leased by them or the nature of their
activities makes such qualification necessary, except for those jurisdictions
where the failure to be so qualified would not have a Material Adverse Effect
on
the Seller or any of its Subsidiaries. For purposes of this Agreement, the
term
“Material Adverse Effect” means, with respect to any person or entity, a
material adverse effect on its and its Subsidiaries’ condition (financial or
otherwise), business, properties, assets, liabilities (including contingent
liabilities) or results of operations taken as a whole. True and complete copies
of the Seller’s Articles of Incorporation, as amended, and Bylaws, as amended,
as currently in effect and as will be in effect on the Closing Date
(collectively, the “Articles and Bylaws”), have previously been provided to the
Purchasers. For purposes of this Agreement, the term “Subsidiary” or
“Subsidiaries” means, with respect to any entity, any corporation or other
organization of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions are directly or indirectly owned by such entity
or
of which such entity is a partner or is, directly or indirectly, the beneficial
owner of 50% or more of any class of equity securities or equivalent profit
participation interests. The Seller has no Subsidiaries other than the
following, each of which, unless otherwise indicated, is wholly-owned by the
Seller:
|
(a)
|
NexMed
Holdings, Inc., a Delaware
corporation,
|
|
(b)
|
NexMed
(U.S.A.), Inc., a Delaware
corporation,
|
|
(c)
|
NexMed
International Limited, organized under British Virgin Islands
law,
|
5
|
(1)
|
NexMed
(Americas) Limited, organized under Nova Scotia law and a wholly-owned
subsidiary of NexMed International Limited,
and
|
|
(2)
|
NexMed
International (Hong Kong) Ltd. organized under Hong Kong law and
a
wholly-owned subsidiary of NexMed International
Limited.
|
3.2 Corporate
Authorization.
The
execution, delivery and performance by the Seller of this Agreement, the
Warrants and the Registration Rights Agreement, and each of the other documents
executed pursuant to and in connection with this Agreement (collectively, the
“Related Documents”), and the consummation of the transactions contemplated
hereby and thereby (including, but not limited to, the sale and delivery of
the
Shares and the Warrants, and the subsequent issuance of the Warrant Shares
upon
exercise of the Warrants) have been duly authorized, and no additional corporate
or stockholder action is required for the approval of this Agreement. The
Warrant Shares have been duly reserved for issuance by the Seller. This
Agreement and the Related Documents have been or, to the extent contemplated
hereby or by the Related Documents, will be duly executed and delivered and
constitute the legal, valid and binding agreement of the Seller, enforceable
against the Seller in accordance with their terms, except as may be limited
by
bankruptcy, reorganization, insolvency, moratorium and similar laws of general
application relating to or affecting the enforcement of rights of creditors,
and
except as enforceability of its obligations hereunder are subject to general
principles of equity (regardless of whether such enforceability is considered
in
a proceeding in equity or at law).
3.3 Charter,
Bylaws and Corporate Records.
The
minute books of the Seller and its Subsidiaries contain complete and accurate
records of all meetings and other corporate actions of the board of directors,
committees of the board of directors, incorporators and stockholders of the
Seller and its Subsidiaries from September 15, 1995 to the date hereof. All
material corporate decisions and actions have been validly made or taken. All
corporate books, including without limitation the share transfer register,
comply with applicable laws and regulations and have been regularly updated.
Such books fully and correctly reflect all the decisions of the
stockholders.
3.4 Governmental
Authorization.
Except
as otherwise specifically contemplated in this Agreement and the Related
Documents, and except for: (i) the filing of a Form D with respect to the Shares
and Warrants under Regulation D under the Securities Act; (ii) the filing of
the
Registration Statement with the Commission; (iii) the application(s) to each
trading market for the listing of the Shares and the Warrant Shares for trading
thereon; and (iv) any filings required under state securities laws that are
permitted to be made after the date hereof, the execution, delivery and
performance by the Seller of this Agreement and the Related Documents, and
the
consummation of the transactions contemplated hereby and thereby (including,
but
not limited to, the sale and delivery of the Shares and Warrants and the
subsequent issuance of the Warrant Shares upon exercise of the Warrants, as
applicable) by the Seller require no action by or in respect of, or filing
with,
any governmental body, agency, official or authority. Notwithstanding the
foregoing, the Seller makes no representation or warranty with respect to the
compliance of the transactions contemplated by this Agreement with Rule 4350(i)
of the National Association of Securities Dealers, Inc. (“NASD”).
6
3.5 Non-Contravention.
The
execution, delivery and performance by the Seller of this Agreement and the
Related Documents, and the consummation by the Seller of the transactions
contemplated hereby and thereby (including the issuance of the Shares and
Warrant Shares) do not and will not (a) contravene or conflict with the Articles
and Bylaws of the Seller and its Subsidiaries or any material agreement to
which
the Seller is a party or by which it is bound; (b) contravene or conflict with
or constitute a violation of any provision of any law, regulation, judgment,
injunction, order or decree binding upon or applicable to the Seller or its
Subsidiaries; (c) constitute a default (or would constitute a default with
notice or lapse of time or both) under or give rise to a right of termination,
cancellation or acceleration or loss of any benefit under any material
agreement, contract or other instrument binding upon the Seller or its
Subsidiaries or under any material license, franchise, permit or other similar
authorization held by the Seller or its Subsidiaries; or (d) result in the
creation or imposition of any Lien (as defined below) on any asset of the Seller
or its Subsidiaries. For purposes of this Agreement, the term “Lien” means, with
respect to any asset, any mortgage, lien, pledge, charge, security interest,
claim or encumbrance of any kind in respect of such asset.
3.6 SEC
Documents.
The
Seller is obligated under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) to file reports pursuant to Sections 13 or 15(d) thereof (all
such reports filed or required to be filed by the Seller, including all exhibits
thereto or incorporated therein by reference, and all documents filed by the
Seller under the Securities Act hereinafter called the “SEC Documents”). The
Seller has filed all reports or other documents required to be filed under
the
Exchange Act. All SEC Documents filed by the Seller as of or for any period
beginning on or after January 1, 2003, (i) were prepared in all material
respects in accordance with the requirements of the Exchange Act and (ii) did
not at the time they were filed (or, if amended or superseded by a filing prior
to the date hereof, then on the date of such filing) contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light
of
the circumstances under which they were made, not misleading. The Seller has
previously delivered to the Purchaser a correct and complete copy of each report
(including, without limitation, the Seller’s 2005 Proxy Statement) which the
Seller filed with the Securities and Exchange Commission (the “SEC” or the
“Commission”) under the Exchange Act for any period ending on or after December
31, 2003 (the “Recent Reports”) to the extent not available via ▇▇▇▇▇. None of
the information about the Seller or any of its Subsidiaries which has been
disclosed to the Purchasers herein or in the course of discussions and
negotiations with respect hereto which is not disclosed in the Recent Reports
is
or was required to be so disclosed, and no material non-public information
has
been disclosed to the Purchasers.
3.7 Financial
Statements.
Each of
the Seller’s audited consolidated balance sheet and related consolidated
statements of income, cash flows and changes in stockholders’ equity (including
the related notes) as of and for the years ended December 31, 2004 and December
31, 2003, as contained in the Recent Reports (collectively, the “Seller’s
Financial Statements” or the “Financial Statements”) (x) present fairly in all
material respects the financial position of the Seller and its Subsidiaries
on a
consolidated basis as of the dates thereof and the results of operations, cash
flows and stockholders’ equity as of and for each of the periods then ended, and
(y) were prepared in accordance with generally accepted accounting principals
(“GAAP”) applied on a consistent basis throughout the periods involved, in each
case, except as otherwise indicated in the notes thereto.
7
3.8 Compliance
with Law.
The
Seller and its Subsidiaries are in compliance and have conducted their business
so as to comply with all laws, rules and regulations, judgments, decrees or
orders of any court, administrative agency, commission, regulatory authority
or
other governmental authority or instrumentality, domestic or foreign, applicable
to their operations, the violation of which would cause a Material Adverse
Affect. There are no judgments or orders, injunctions, decrees, stipulations
or
awards (whether rendered by a court or administrative agency or by arbitration),
including any such actions relating to affirmative action claims or claims
of
discrimination, against the Seller or its Subsidiaries or against any of their
properties or businesses.
3.9 No
Defaults.
The
Seller and its Subsidiaries are not, nor have they received notice that they
would be with the passage of time, giving of notice, or both, (i) in violation
of any provision of their Articles and Bylaws (ii) in default or violation
of
any term, condition or provision of (A) any judgment, decree, order, injunction
or stipulation applicable to the Seller or its Subsidiaries or (B) any material
agreement, note, mortgage, indenture, contract, lease or instrument, permit,
concession, franchise or license to which the Seller or its Subsidiaries are
a
party or by which the Seller or its Subsidiaries or their properties or assets
may be bound, and no circumstances exist which would entitle any party to any
material agreement, note, mortgage, indenture, contract, lease or instrument
to
which such Seller or its Subsidiaries are a party, to terminate such as a result
of such Seller or its Subsidiaries, having failed to meet any material provision
thereof including, but not limited to, meeting any applicable milestone under
any material agreement or contract.
3.10 Litigation.
Except
as disclosed in the Recent Reports or on Schedule
3.10,
there is
no action, suit, proceeding, judgment, claim or investigation pending or, to
the
best knowledge of the Seller, threatened against the Seller and its Subsidiaries
which could, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect on the Seller or its Subsidiaries or which in any manner
challenges or seeks to prevent, enjoin, alter or materially delay any of the
transactions contemplated hereby, and there is no basis for the assertion of
any
of the foregoing. Each Purchaser acknowledges that it is aware that the Company
has received notice from The Nasdaq Stock Market that the Common Stock is not
in
compliance with applicable listing requirements, and that such Purchaser has
reviewed the Company’s Form 8-K filed with the Commission on January 6,
2006.
There
are
no claims or complaints existing or, to the knowledge of the Seller or its
Subsidiaries threatened, for product liability in respect of any product of
the
Seller or its Subsidiaries, and the Seller and its Subsidiaries are not aware
of
any basis for the assertion of any such claim.
3.11 Absence
of Certain Changes.
Since
December 31, 2004, the Seller has conducted its business only in the ordinary
course and there has not occurred, except as set forth in the Recent Reports
or
any exhibit thereto or incorporated by reference therein:
8
(a) Any
event
that could reasonably be expected to have a Material Adverse Effect on the
Seller or any of its Subsidiaries;
(b) Any
amendments or changes in the Articles or Bylaws of the Seller and its
Subsidiaries.
(c) Any
damage, destruction or loss, whether or not covered by insurance, that would,
individually or in the aggregate, have or would be reasonably likely to have,
a
Material Adverse Effect on the Seller and its Subsidiaries;
(d) Except
as
set forth in the Recent Reports or on Schedule
3.11(d),
any
(i) incurrence,
assumption or guarantee by the Seller or its Subsidiaries of any debt for
borrowed money other than for equipment leases;
(ii) issuance
or sale of any securities convertible into or exchangeable for securities of
the
Seller other than to directors, employees and consultants pursuant to existing
equity compensation or stock purchase plans of the Seller;
(iii) issuance
or sale of options or other rights to acquire from the Seller or its
Subsidiaries, directly or indirectly, securities of the Seller or any securities
convertible into or exchangeable for any such securities, other than options
issued to directors, employees and consultants in the ordinary course of
business in accordance with past practice;
(iv) issuance
or sale of any stock, bond or other corporate security, other than upon the
exercise or conversion of convertible securities;
(v) discharge
or satisfaction of any material Lien, other than current liabilities incurred
since December 31, 2004 in the ordinary course of business;
(vi) declaration
or making any payment or distribution to stockholders or purchase or redemption
of any share of its capital stock or other security;
(vii) sale,
assignment or transfer any of its intangible assets except in the ordinary
course of business, or cancellation of any debt or claim except in the ordinary
course of business;
(viii) waiver
of
any right of substantial value whether or not in the ordinary course of
business;
(ix) material
change in officer compensation except in the ordinary course of business and
consistent with past practices; or
(x) other
commitment (contingent or otherwise) to do any of the foregoing.
9
(e) Any
creation, sufferance or assumption by the Seller or any of its Subsidiaries
of
any Lien on any asset (other than Liens existing on the date hereof or in
connection with equipment leases and working capital lines of credit set forth
on Schedule
3.11(e))
or any
making of any loan, advance or capital contribution to or investment in any
Person in an aggregate amount which exceeds $25,000 outstanding at any
time;
(f) Any
entry
into, amendment of, relinquishment, termination or non-renewal by the Seller
or
its Subsidiaries of any material contract, license, lease, transaction,
commitment or other right or obligation, other than in the ordinary course
of
business; or
(g) Any
transfer or grant of a right with respect to the trademarks, trade names,
service marks, trade secrets, copyrights or other intellectual property rights
owned or licensed by the Seller or its Subsidiaries, except as among the Seller
and its Subsidiaries.
3.12 No
Undisclosed Liabilities.
Except
as set forth in the Recent Reports, and except for liabilities and obligations
incurred in the ordinary course of business since December 31, 2004, as of
the
date hereof, (i) the Seller and its Subsidiaries do not have any material
liabilities or obligations (absolute, accrued, contingent or otherwise) which,
and (ii) there has not been any aspect of the prior or current conduct of the
business of the Seller or its Subsidiaries which may form the basis for any
material claim by any third party which if asserted could result in any such
material liabilities or obligations which, are not fully reflected, reserved
against or disclosed in the balance sheet of the Seller as at December 31,
2004.
3.13 Taxes.
All tax
returns and tax reports required to be filed with respect to the income,
operations, business or assets of the Seller and its Subsidiaries have been
timely filed (or appropriate extensions have been obtained) with the appropriate
governmental agencies in all jurisdictions in which such returns and reports
are
required to be filed, and all of the foregoing as filed are correct and complete
and, in all material respects, reflect accurately all liability for taxes of
the
Seller and its Subsidiaries for the periods to which such returns relate, and
all amounts shown as owing thereon have been paid. All income, profits,
franchise, sales, use, value added, occupancy, property, excise, payroll,
withholding, FICA, FUTA and other taxes (including interest and penalties),
if
any, collectible or payable by the Seller and its Subsidiaries or relating
to or
chargeable against any of its material assets, revenues or income or relating
to
any employee, independent contractor, creditor, stockholder or other third
party
through the Closing Date, will have been fully collected and paid by such date
if due by such date or provided for by adequate reserves in the Financial
Statements as of and for the periods ended December 31, 2004 (other than taxes
accruing after such date) and all similar items due through the Closing Date
will have been fully paid by that date or provided for by adequate reserves,
whether or not any such taxes were reported or reflected in any tax returns
or
filings. No taxation authority has sought to audit the records of the Seller
or
any of its Subsidiaries for the purpose of verifying or disputing any tax
returns, reports or related information and disclosures provided to such
taxation authority, or for the Seller’s or any of its Subsidiaries’ alleged
failure to provide any such tax returns, reports or related information and
disclosure. No material claims or deficiencies have been asserted against or
inquiries raised with the Seller or any of its Subsidiaries with respect to
any
taxes or other governmental charges or levies which have not been paid or
otherwise satisfied, including claims that, or inquiries whether, the Seller
or
any of its Subsidiaries has not filed a tax return that it was required to
file,
and, to the best of the Seller’s knowledge, there exists no reasonable basis for
the making of any such claims or inquiries. Neither the Seller nor any of its
Subsidiaries has waived any restrictions on assessment or collection of taxes
or
consented to the extension of any statute of limitations relating to
taxation.
10
3.14 Interests
of Officers, Directors and Other Affiliates.
The
description of any interest held, directly or indirectly, by any officer,
director or other Affiliate of Seller (other than the interests of the Seller
and its Subsidiaries in such assets) in any property, real or personal, tangible
or intangible, used in or pertaining to Seller’s business, including any
interest in the Intellectual Property (as defined in Section 3.15 hereof),
as
set forth in the Recent Reports, is true and complete, and no officer, director
or other Affiliate of the Seller has any interest in any property, real or
personal, tangible or intangible, used in or pertaining to the Seller’s
business, including the Seller’s Intellectual Property, other than as set forth
in the Recent Reports.
3.15 Intellectual
Property.
Other
than as set forth in the Recent Reports:
(a) the
Seller
or a Subsidiary thereof has the right to use or is the sole and exclusive owner
of all right, title and interest in and to all foreign and domestic patents,
patent rights, trademarks, service marks, trade names, brands and copyrights
(whether or not registered and, if applicable, including pending applications
for registration) owned, used or controlled by the Seller and its Subsidiaries
(collectively, the “Rights”) and in and to each material invention, software,
trade secret, technology, product, composition, formula, method of process
used
by the Seller or its Subsidiaries (the Rights and such other items, the
“Intellectual Property”), and, to the Seller’s knowledge, has the right to use
the same, free and clear of any claim or conflict with the rights of others;
(b) no
royalties or fees (license or otherwise) are payable by the Seller or its
Subsidiaries to any Person by reason of the ownership or use of any of the
Intellectual Property except as set forth on Schedule
3.15;
(c) there
have
been no claims made against the Seller or its Subsidiaries asserting the
invalidity, abuse, misuse, or unenforceability of any of the Intellectual
Property, and, to its knowledge, there are no reasonable grounds for any such
claims;
(d) neither
the Seller nor its Subsidiaries have made any claim of any violation or
infringement by others of its rights in the Intellectual Property, and to the
best of the Seller’s knowledge, no reasonable grounds for such claims exist; and
(e) neither
the Seller nor its Subsidiaries have received notice that it is in conflict
with
or infringing upon the asserted rights of others in connection with the
Intellectual Property.
3.16 Restrictions
on Business Activities.
Other
than as set forth in the Recent Reports, there is no agreement, judgment,
injunction, order or decree binding upon the Seller or its Subsidiaries which
has or could reasonably be expected to have the effect of prohibiting or
materially impairing any business practice of the Seller or its Subsidiaries,
any acquisition of property by the Seller or its Subsidiaries or the conduct
of
business by the Seller or its Subsidiaries as currently conducted or as
currently proposed to be conducted by the Seller.
11
3.17 Preemptive
Rights.
Except
as set forth in Schedule
3.17,
none of
the stockholders of the Seller possess any preemptive rights in respect of
the
Shares or Warrant Shares to be issued to the Purchasers upon exercise of the
Warrants, as applicable. Each Purchaser which is also a holder of the Company’s
Series C 6% Cumulative Convertible Preferred Stock (the “Series C Stock”) hereby
acknowledges that the Company has fully complied with Section 10 of the
Certificate of Designation of the Series C Stock in connection with such
Purchaser’s participation rights in this offering, and waives all other rights
with respect to such Section 10 in connection with this offering.
3.18 Insurance.
The
insurance policies providing insurance coverage to the Seller or its
Subsidiaries including for product liability are adequate for the business
conducted by the Seller and its Subsidiaries (currently limited to the testing
phase) and are sufficient for compliance by the Seller and its Subsidiaries
with
all requirements of law and all material agreements to which the Seller or
its
Subsidiaries are a party or by which any of their assets are bound. All of
such
policies are in full force and effect and are valid and enforceable in
accordance with their terms, and the Seller and its Subsidiaries have complied
with all material terms and conditions of such policies, including premium
payments. None of the insurance carriers has indicated to the Seller or its
Subsidiaries an intention to cancel any such policy.
3.19 Subsidiaries
and Investments.
Except
as set forth in the Recent Reports or on Schedule
3.19,
the
Seller has no Subsidiaries or Investments. For purposes of this Agreement,
the
term “Investments” shall mean, with respect to any Person, all advances, loans
or extensions of credit to any other Person, all purchases or commitments to
purchase any stock, bonds, notes, debentures or other securities of any other
Person, and any other investment in any other Person, including partnerships
or
joint ventures (whether by capital contribution or otherwise) or other similar
arrangement (whether written or oral) with any Person, including but not limited
to arrangements in which (i) the Person shares profits and losses, (ii) any
such
other Person has the right to obligate or bind the Person to any third party,
or
(iii) the Person may be wholly or partially liable for the debts or obligations
of such partnership, joint venture or other arrangement.
3.20 Capitalization.
The
authorized capital stock of the Seller consists of 120,000,000 shares of common
stock, $0.001 par value per share, of which 55,517,785 shares are issued and
outstanding as of the date hereof, and 10,000,000 shares of preferred stock,
issuable in one or more classes or series, with such relative rights and
preferences as the Board of Directors may determine, none of which has been
authorized for issuance other than 1,000,000 shares of Series A Junior
Participating Preferred Stock, $0.001 par value per share, none of which,
immediately prior to the Closing, has been issued or is outstanding, 800 shares
of the Company’s Series B 8% Cumulative Convertible Preferred Stock, 800 of
which have been issued and none of which, immediately prior to the Closing,
are
outstanding and 600 shares of the Company’s Series C Stock, 445 of which have
been issued and 99.5 of which, immediately prior to Closing, are outstanding.
All shares of the Seller’s issued and outstanding capital stock have been duly
authorized, are validly issued and outstanding, and are fully paid and
nonassessable. No securities issued by the Seller from the date of its
incorporation to the date hereof were issued in violation of any statutory
or
common law preemptive rights. There are no dividends which have accrued or
been
declared but are unpaid on the capital stock of the Seller. All taxes required
to be paid by Seller in connection with the issuance and any transfers of the
Seller’s capital stock have been paid. Except as set forth on Schedule
3.20,
all
permits or authorizations required to be obtained from or registrations required
to be effected with any Person in connection with any and all issuances of
securities of the Seller from the date of the Seller’s incorporation to the date
hereof have been obtained or effected, and all securities of the Seller have
been issued and are held in accordance with the provisions of all applicable
securities or other laws.
12
3.21 Options,
Warrants, Rights.
Except
as set forth in the Recent Reports or on Schedule
3.21,
there
are no outstanding (a) securities, notes or instruments convertible into or
exercisable for any of the capital stock or other equity interests of the Seller
or its Subsidiaries; (b) options, warrants, subscriptions or other rights to
acquire capital stock or other equity interests of the Seller or its
Subsidiaries; or (c) commitments, agreements or understandings of any kind,
including employee benefit arrangements, relating to the issuance or repurchase
by the Seller or its Subsidiaries of any capital stock or other equity interests
of the Seller or its Subsidiaries, any such securities or instruments
convertible or exercisable for securities or any such options, warrants or
rights. Except as set forth on Schedule
3.21,
neither
the Seller nor the Subsidiaries have granted anti-dilution rights to any person
or entity in connection with any outstanding option, warrant, subscription
or
any other instrument convertible or exercisable for the securities of the Seller
or any of its Subsidiaries. Other than the rights granted to the Purchasers
under the Registration Rights Agreement, there are no outstanding rights which
permit the holder thereof to cause the Seller or the Subsidiaries to file a
registration statement under the Securities Act or which permit the holder
thereof to include securities of the Seller or any of its Subsidiaries in a
registration statement filed by the Seller or any of its Subsidiaries under
the
Securities Act, and there are no outstanding agreements or other commitments
which otherwise relate to the registration of any securities of the Seller
or
any of its Subsidiaries for sale or distribution in any jurisdiction, except
as
set forth on Schedule
3.21.
3.22 Employees,
Employment Agreements and Employee Benefit Plans.
Except
as set forth in the Recent Reports or on Schedule
3.22,
there
are no employment, consulting, severance or indemnification arrangements,
agreements, or understandings between the Seller and any officer, director,
consultant or employee of the Seller or its Subsidiaries (the “Employment
Agreements”). Except as set forth in the Recent Reports or on Schedule
3.22,
no
Employment Agreement provides for the acceleration or change in the award,
grant, vesting or determination of options, warrants, rights, severance
payments, or other contingent obligations of any nature whatsoever of the Seller
or its Subsidiaries in favor of any such parties in connection with the
transactions contemplated by this Agreement. Except as disclosed in the Recent
Reports or on Schedule
3.22,
the
terms of employment or engagement of all directors, officers, employees, agents,
consultants and professional advisors of the Seller and its Subsidiaries are
such that their employment or engagement may be terminated upon not more than
two weeks’ notice given at any time without liability for payment of
compensation or damages and the Seller and its Subsidiaries have not entered
into any agreement or arrangement for the management of their business or any
part thereof other than with their directors or employees.
3.23 Absence
of Certain Business Practices.
Neither
the Seller, nor any Affiliate of the Seller, nor to the knowledge of the Seller,
any agent or employee of the Seller, any other Person acting on behalf of or
associated with the Seller, or any individual related to any of the foregoing
Persons, acting alone or together, has: (a) received, directly or indirectly,
any rebates, payments, commissions, promotional allowances or any other economic
benefits, regardless of their nature or type, from any customer, supplier,
trading company, shipping company, governmental employee or other Person with
whom the Seller has done business directly or indirectly; or (b) directly or
indirectly, given or agreed to give any gift or similar benefit to any customer,
supplier, trading company, shipping company, governmental employee or other
Person who is or may be in a position to help or hinder the business of the
Seller (or assist the Seller in connection with any actual or proposed
transaction) which (i) may subject the Seller to any damage or penalty in any
civil, criminal or governmental litigation or proceeding, (ii) if not given
in
the past, may have had an adverse effect on the Seller or (iii) if not continued
in the future, may adversely affect the assets, business, operations or
prospects of the Seller or subject the Seller to suit or penalty in any private
or governmental litigation or proceeding.
13
3.24 Products
and Services.
To the
knowledge of the Seller and except as disclosed in the Recent Reports, there
exists no set of facts (i) which could furnish a basis for the withdrawal,
suspension or cancellation of any registration, license, permit or other
governmental approval or consent of any governmental or regulatory agency with
respect to any product or service developed or provided by the Seller or its
Subsidiaries, (ii) which could furnish a basis for the withdrawal, suspension
or
cancellation by order of any state, federal or foreign court of law of any
product or service, or (iii) which could have a Material Adverse Effect on
the
continued operation of any facility of the Seller or its Subsidiaries or which
could otherwise cause the Seller or its Subsidiaries to withdraw, suspend or
cancel any such product or service from the market or to change the marketing
classification of any such product or service. Each product or service provided
by Seller or its Subsidiaries has been provided in accordance in all material
respects with the specifications under which such product or service normally
is
and has been provided and the provisions of all applicable laws or regulations.
3.25 Environmental
Matters.
None of
the premises or any properties owned, occupied or leased by the Seller or its
Subsidiaries (the “Premises”) has been used by the Seller or the Subsidiaries
or, to the Seller’s knowledge, by any other Person, to manufacture, treat,
store, or dispose of any substance that has been designated to be a “hazardous
substance” under applicable Environmental Laws (hereinafter defined) (“Hazardous
Substances”) in violation of any applicable Environmental Laws. To its
knowledge, the Seller has not disposed of, discharged, emitted or released
any
Hazardous Substances which would require, under applicable Environmental Laws,
remediation, investigation or similar response activity. No Hazardous Substances
are present as a result of the actions of the Seller or, to the Seller’s
knowledge, any other Person, in, on or under the Premises which would give
rise
to any liability or clean-up obligations of the Seller under applicable
Environmental Laws. The Seller and, to the Seller’s knowledge, any other Person
for whose conduct it may be responsible pursuant to an agreement or by operation
of law, are in compliance with all laws, regulations and other federal, state
or
local governmental requirements, and all applicable judgments, orders, writs,
notices, decrees, permits, licenses, approvals, consents or injunctions in
effect on the date of this Agreement relating to the generation, management,
handling, transportation, treatment, disposal, storage, delivery, discharge,
release or emission of any Hazardous Substance (the “Environmental Laws”).
Neither the Seller nor, to the Seller’s knowledge, any other Person for whose
conduct it may be responsible pursuant to an agreement or by operation of law
has received any written complaint, notice, order, or citation of any actual,
threatened or alleged noncompliance with any of the Environmental Laws, and
there is no proceeding, suit or investigation pending or, to the Seller’s
knowledge, threatened against the Seller or, to the Seller’s knowledge, any such
Person with respect to any violation or alleged violation of the Environmental
Laws, and, to the knowledge of the Seller, there is no basis for the institution
of any such proceeding, suit or investigation.
14
3.26 Licenses;
Compliance With FDA and Other Regulatory Requirements.
(a) General.
Except
as disclosed in the Recent Reports, the Seller holds all material
authorizations, consents, approvals, franchises, licenses and permits required
under applicable law or regulation for the operation of the business of the
Seller and its Subsidiaries as currently operated (the “Governmental
Authorizations”). All the Governmental Authorizations have been duly issued or
obtained and are in full force and effect, and the Seller and its Subsidiaries
are in material compliance with the terms of all the Governmental
Authorizations. The Seller and its Subsidiaries have not engaged in any activity
that, to their knowledge, would cause revocation or suspension of any such
Governmental Authorizations. The Seller has no knowledge of any facts which
could reasonably be expected to cause the Seller to believe that the
Governmental Authorizations will not be renewed by the appropriate governmental
authorities in the ordinary course. Neither the execution, delivery nor
performance of this Agreement shall adversely affect the status of any of the
Governmental Authorizations.
(b) FDA.
Without
limiting the generality of the representations and warranties made in paragraph
(a) above, the Seller represents and warrants that (i) the Seller and each
of
its Subsidiaries is in material compliance with all applicable provisions of
the
United States Federal Food, Drug, and Cosmetic Act (the “FDC Act”), (ii) its
products and those of each of its Subsidiaries that are in the Seller’s control
are not adulterated or misbranded and are in lawful distribution, (iii) the
United States Food and Drug Administration (the “FDA”) has not initiated legal
action with respect to the manufacturing of the Seller’s products, such as
seizures or FDA-required recalls, and Seller uses best efforts to comply with
applicable FDA good manufacturing practice regulations, (iv) all adverse events
that were known to and required to be reported by Seller to the FDA have been
reported to the FDA in a timely manner, (v) neither the Seller nor any of its
Subsidiaries is, to their knowledge, employing or utilizing the services of
any
individual who has been debarred under the FDC Act, (vi) all stability studies
required to be performed for products distributed by the Seller or any of its
Subsidiaries have been completed or are ongoing in material compliance with
the
applicable FDA requirements, and (vii) the Seller and its Subsidiaries are
in
compliance in all material respects with all applicable provisions of the
Controlled Substances Act.
3.27 Brokers.
Except
as set forth on Schedule
3.27,
no
broker, finder or investment banker is entitled to any brokerage, finder’s or
other fee or commission in connection with the transactions contemplated by
this
Agreement, based upon any arrangement made by or on behalf of the Seller, which
would make any Purchaser liable for any fees or commissions.
3.28 Securities
Laws.
Neither
the Seller nor its Subsidiaries nor any agent acting on behalf of the Seller
or
its Subsidiaries has taken or will take any action which might cause this
Agreement or the Warrants to violate the Securities Act or the Exchange Act
or
any rules or regulations promulgated thereunder, as in effect on the Closing
Date. Assuming that all of the representations and warranties of the Purchasers
set forth in Article IV are true, all offers and sales of capital stock,
securities and notes of the Seller were conducted and completed in compliance
with the Securities Act. All shares of capital stock and other securities issued
by the Seller and its Subsidiaries prior to the date hereof have been issued
in
transactions that were either registered offerings or were exempt from the
registration requirements under the Securities Act and all applicable state
securities or “blue sky” laws and in compliance with all applicable corporate
laws.
15
3.29 Disclosure.
No
representation or warranty made by the Seller in this Agreement, nor in any
document, written information, financial statement, certificate, schedule or
exhibit prepared and furnished by the Seller or the representatives of the
Seller pursuant hereto or in connection with the transactions contemplated
hereby, contains or will contain any untrue statement of a material fact, or
omits to state a material fact necessary to make the statements or facts
contained herein or therein not misleading in light of the circumstances under
which they were furnished.
ARTICLE
IV
- REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each
Purchaser, for itself only, hereby severally and not jointly, represents and
warrants to the Seller as follows:
4.1 Existence
and Power.
The
Purchaser is duly organized, validly existing and in good standing under the
laws of the jurisdiction of such Purchaser’s organization. The Purchaser has all
powers required to carry on such Purchaser’s business as now
conducted.
4.2 Authorization.
The
execution, delivery and performance by the Purchaser of this Agreement, the
Related Documents to which such Purchaser is a party, and the consummation
by
the Purchaser of the transactions contemplated hereby and thereby have been
duly
authorized, and no additional action is required for the approval of this
Agreement or the Related Documents. This Agreement and the Related Documents
to
which the Purchaser is a party have been or, to the extent contemplated hereby,
will be duly executed and delivered and constitute valid and binding agreements
of the Purchaser, enforceable against such Purchaser in accordance with their
terms, except as may be limited by bankruptcy, reorganization, insolvency,
moratorium and similar laws of general application relating to or affecting
the
enforcement of rights of creditors and except that enforceability of their
obligations thereunder are subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
4.3 Investment.
The
Purchaser is acquiring the securities described herein for its own account
and
not with a view to, or for sale in connection with, any distribution thereof,
nor with the intention of distributing or reselling the same, provided, however,
that by making the representation herein, the Purchaser does not agree to hold
any of the securities for any minimum or other specific term and reserves the
right to dispose of the securities at any time in accordance with or pursuant
to
a registration statement or an exemption under the Securities Act. The Purchaser
is aware that none of the securities has been registered under the Securities
Act or under applicable state securities or blue sky laws. The Purchaser is
an
“Accredited Investor” as such term is defined in Rule 501 of Regulation D, as
promulgated under the Securities Act (including, without limitation, if the
Purchaser is an employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974 and a self-directed plan, then investment
decisions are made solely by persons that are “Accredited
Investors”).
16
4.4 Reliance
on Exemptions.
The
Purchaser understands that the Shares and Warrants are being offered and sold
to
such Purchaser in reliance upon specific exemptions from the registration
requirements of United States federal and state securities laws and that the
Seller is relying upon the truth and accuracy of, and such Purchaser’s
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of such Purchaser set forth herein in order to determine
the
availability of such exemptions and the eligibility of such Purchaser to acquire
the securities.
4.5 Experience
of the Purchaser.
The
Purchaser, either alone or together with its representatives, has such
knowledge, sophistication and experience in business and financial matters
so as
to be capable of evaluating the merits and risks of the prospective investment
in the Securities, and has so evaluated the merits and risks of such investment.
The Purchaser is able to bear the economic risk of an investment in the
securities and, at the present time, is able to afford a complete loss of such
investment.
4.6 General
Solicitation.
The
Purchaser is not purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the securities published in
any
newspaper, magazine or similar media or broadcast over television or radio
or
presented at any seminar or any other general solicitation or general
advertisement.
ARTICLE
V
- COVENANTS OF THE SELLER AND PURCHASERS
5.1 Insurance.
The
Seller and its Subsidiaries shall, from time to time upon the written request
of
the Purchasers, promptly furnish or cause to be furnished to the Purchasers
evidence, in form and substance reasonably satisfactory to the Purchasers,
of
the maintenance of all insurance maintained by it for loss or damage by fire
and
other hazards, damage or injury to persons and property, including from product
liability, and under workmen’s compensation laws.
5.2 Reporting
Obligations.
So long
as any portion of the Warrants has not been exercised and has not expired by
its
terms, the Seller shall furnish to the Purchasers, or any other persons who
hold
any of the Warrants (provided that such subsequent holders give notice to the
Seller that they hold Warrants and furnish their addresses) promptly upon their
becoming available one copy of (A) each report, notice or proxy statement sent
by the Seller to its stockholders generally, and of each regular or periodic
report (pursuant to the Exchange Act) and (B) any registration statement,
prospectus or written communication pursuant to the Securities Act relating
to
the issuance or registration of the Shares and the Warrant Shares and filed
by
the Seller with the Commission or any securities market or exchange on which
shares of Common Stock are listed; provided, however, that the Seller shall
have
no obligation to deliver reports or schedules or statements (pursuant to the
Exchange Act) under this Section 5.2 to the extent such reports are publicly
available via ▇▇▇▇▇.
17
The
Purchasers are hereby authorized to deliver a copy of any financial statement
or
any other information relating to the business, operations or financial
condition of the Seller which may have been furnished to the Purchasers
hereunder, to any regulatory body or agency having jurisdiction over the
Purchasers or to any Person which shall, or shall have right or obligation
to
succeed to all or any part of the Purchasers’ interest in the Seller or this
Agreement.
5.3 Investigation.
The
representations, warranties, covenants and agreements set forth in this
Agreement shall not be affected or diminished in any way by any investigation
(or failure to investigate) at any time by or on behalf of the party for whose
benefit such representations, warranties, covenants and agreements were made.
Without limiting the generality of the foregoing, the inability or failure
of
the Purchasers to discover any breach, default or misrepresentation by the
Seller under this Agreement or the Related Documents (including under any
certificate furnished pursuant to this Agreement), notwithstanding the exercise
by the Purchasers or other holders of the Shares of their rights hereunder
to
conduct an investigation shall not in any way diminish any liability
hereunder.
5.4 Further
Assurances.
The
Seller shall, at its cost and expense, upon written request of the Purchasers,
duly execute and deliver, or cause to be duly executed and delivered, to the
Purchasers such further instruments and do and cause to be done such further
acts as may be necessary, advisable or proper, at the reasonable request of
the
Purchasers, to carry out more effectually the provisions and purposes of this
Agreement. The parties shall use their best efforts to timely satisfy each
of
the conditions described in Article VI of this Agreement.
5.5 Use
of
Proceeds.
The
Seller covenants and agrees that the proceeds of the Purchase Price shall be
used by the Seller for working capital and general corporate purposes; under
no
circumstances shall any portion of the proceeds be applied to:
(i) accelerated
repayment of debt existing on the date hereof;
(ii) the
payment of dividends or other distributions on any capital stock of the Seller
other than the Seller’s Series C 6% Cumulative Convertible Preferred Stock;
(iii) increased
executive compensation or loans to officers, employees, stockholders or
directors, unless approved by a disinterested majority of the Board of
Directors;
(iv) the
purchase of debt or equity securities of any person, including the Seller and
its Subsidiaries, except in connection with investment of excess cash in high
quality (A1/P1 or better) money market instruments having maturities of one
year
or less; or
(v) any
expenditure not directly related to the business of the Seller.
5.6 Corporate
Existence.
So long
as a Purchaser owns Shares, Warrants or Warrant Shares, the Seller shall
preserve and maintain and cause its Subsidiaries to preserve and maintain their
corporate existence and good standing in the jurisdiction of their incorporation
and the rights, privileges and franchises of the Seller and its Subsidiaries
(except, in each case, in the event of a merger or consolidation in which the
Seller or its Subsidiaries, as applicable, is not the surviving entity) in
each
case where failure to so preserve or maintain could have a Material Adverse
Effect on the financial condition, business or operations of the Seller and
its
Subsidiaries taken as a whole.
18
5.7 Licenses.
The
Seller shall, and shall cause its Subsidiaries to, maintain at all times all
material licenses or permits necessary to the conduct of its business and as
required by any governmental agency or instrumentality thereof, including
without limitation all FDA clearances and approvals.
5.8 Taxes
and Claims.
The
Seller and its Subsidiaries shall duly pay and discharge (a) all material taxes,
assessments and governmental charges upon or against the Seller or its
properties or assets prior to the date on which penalties attach thereto, unless
and to the extent that such taxes are being diligently contested in good faith
and by appropriate proceedings, and appropriate reserves therefor have been
established, and (b) all material lawful claims, whether for labor, materials,
supplies, services or anything else which might or could, if unpaid, become
a
lien or charge upon the properties or assets of the Seller or its Subsidiaries
unless and to the extent only that the same are being diligently contested
in
good faith and by appropriate proceedings and appropriate reserves therefor
have
been established.
5.9 Perform
Covenants.
The
Seller shall duly comply with all the terms and covenants contained herein
and
in each of the instruments and documents given to the Purchasers in connection
with or pursuant to this Agreement, all at the times and places and in the
manner set forth herein or therein.
5.10 Additional
Covenants.
(a) Except
for
transactions approved by a majority of the disinterested directors of the Board
of Directors, neither the Seller nor any of its Subsidiaries shall enter into
any transaction with any director, officer, employee or holder of more than
5%
of the outstanding capital stock of any class or series of capital stock of
the
Seller or any of its Subsidiaries, member of the family of any such person,
or
any corporation, partnership, trust or other entity in which any such person,
or
member of the family of any such person, is a director, officer, trustee,
partner or holder of more than 5% of the outstanding capital stock thereof,
with
the exception of transactions which are consummated upon terms that are no
less
favorable than would be available if such transaction had been effected at
arms-length, in the reasonable judgment of the Board of Directors.
(b) The
Seller
shall timely prepare and file with the Securities and Exchange Commission the
form of notice of the sale of securities pursuant to the requirements of
Regulation D regarding the sale of the Shares and Warrants under this
Agreement.
(c) The
Seller
shall timely prepare and file such applications, consents to service of process
(but not including a general consent to service of process) and similar
documents and take such other steps and perform such further acts as shall
be
required by the state securities law requirements of each jurisdiction where
a
Purchaser resides as indicated on Schedule
1
with
respect to the sale of the Shares and Warrants under this
Agreement.
19
(d) Neither
the Seller nor any of its Affiliates, nor any Person acting on its or their
behalf, shall directly or indirectly make any offers or sales of any securities
or solicit any offers to buy any securities under circumstances that would
cause
the loss of the 4(2) exemption under the Securities Act for the transactions
contemplated hereby.
5.11 Securities
Laws Disclosure; Publicity.
The
Seller shall (i) on or promptly after the Closing Date, issue a press release
disclosing the transactions contemplated hereby, and (ii) after the Closing
Date, timely file with the Commission a Report on Form 8-K disclosing the
transactions contemplated hereby. Except as provided in the preceding sentence,
neither the Seller nor the Purchasers shall make any press release or other
publicity about the terms of this Agreement or the transactions contemplated
hereby without the prior approval of the other unless otherwise required by
law
or the rules of the Commission or Nasdaq.
5.12 Like
Treatment of Purchasers and Holders.
Neither
the Seller nor any of its affiliates shall, directly or indirectly, pay or
cause
to be paid any consideration (immediate or contingent), whether by way of
interest, fee, payment for redemption, conversion or exercise of the Securities,
or otherwise, to any Purchaser or holder of Securities, for or as an inducement
to, or in connection with the solicitation of, any consent, waiver or amendment
to any terms or provisions of this Agreement or the Related Documents, unless
such consideration is required to be paid to all Purchasers or holders of
Securities bound by such consent, waiver or amendment. The Seller shall not,
directly or indirectly, redeem any Securities unless such offer of redemption
is
made pro rata to all Purchasers or holders of Securities, as the case may be,
on
identical terms.
5.13 Independent
Nature of Purchasers’ Obligations and Rights.
The
obligations of each Purchaser under this Agreement or any Related Documents
are
several and not joint with the obligations of any other Purchaser, and no
Purchaser shall be responsible in any way for the performance of the obligations
of any other Purchaser under any such agreement. Nothing contained herein or
in
any Related Documents, and no action taken by any Purchaser pursuant hereto
or
thereto, shall be deemed to constitute any of the Purchasers as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated hereby or
thereby. Each Purchaser confirms that it has independently participated in
the
negotiation of the transaction contemplated hereby with the advice of its own
counsel and advisors. Each Purchaser shall be entitled to independently protect
and enforce its rights, including, without limitation, the rights arising out
of
this Agreement or out of any other document contemplated hereby, and it shall
not be necessary for any other Purchaser to be joined as an additional party
in
any proceeding for such purpose.
ARTICLE
VI
- CONDITIONS TO CLOSING
6.1 Conditions
to Obligations of Purchasers to Effect the Closing.
The
obligations of a Purchaser to effect the Closing and the transactions
contemplated by this Agreement shall be subject to the satisfaction at or prior
to the Closing, of each of the following conditions, any of which may be waived,
in writing, by a Purchaser:
(a) The
Seller
shall deliver or cause to be delivered to each of the Purchasers the following:
20
1. (i) (A)
One or
more certificates evidencing the aggregate number of Shares of the Common Stock,
duly authorized, issued, fully paid and non-assessable, as is indicated on
Schedule
1
to be
purchased at the Closing by such Purchaser, registered in the name of such
Purchaser, in such denominations as are indicated on Schedule
1
for such
Purchaser (“Share Certificates”) or (B) a copy of irrevocable transfer agent
instructions (I) that have been delivered to the Seller’s transfer agent and
(II) instruct the Seller’s transfer agent to issue the Share Certificates, (III)
that are acknowledged in writing by the Company’s transfer agent; provided that,
in any case, the Company shall deliver or cause to be delivered the original
Share Certificates as soon as practicable following the Closing;
(ii) One
or
more certificates evidencing the Warrants, registered in the name of such
Purchaser, in such denominations as is indicated on Schedule
1
for such
Purchaser, pursuant to which such Purchaser shall be initially entitled to
purchase that number of shares of Common Stock as is indicated on Schedule
1
or a
facsimile copy of such Warrant Certificates, provided that, in any case, the
Company shall deliver or cause to be delivered the original Warrant Certificates
as soon as practicable following the Closing.
2. The
Registration Rights Agreement, in the form attached hereto as Exhibit
B
(the
“Registration Rights Agreement”), duly executed by the Seller.
3. A
legal
opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (“Seller’s Counsel”), counsel to the
Seller, in the form attached hereto as Exhibit
C.
4. A
legal
opinion of ▇▇▇▇▇▇▇ Brignone (“Nevada Counsel”), Nevada counsel to the Seller, in
the form attached hereto as Exhibit
D.
5. A
certificate of the Secretary of the Seller (the “Secretary’s Certificate”), in
form and substance satisfactory to the Purchasers, certifying as follows:
(i) that
attached to the Secretary’s Certificate is a true and complete copy of the
Articles of Incorporation of the Seller, as amended, including any and all
certificates of designation;
(ii) that
a
true copy of the Bylaws of the Seller, as amended to the Closing Date, is
attached to the Secretary’s Certificate;
(iii) that
attached thereto are true and complete copies of the resolutions of the Board
of
Directors of the Seller authorizing the execution, delivery and performance
of
this Agreement and the Related Documents, instruments and certificates required
to be executed by it in connection herewith and approving the consummation
of
the transactions in the manner contemplated hereby including, but not limited
to, the authorization and issuance of the Shares and Warrants;
(iv) the
names
and true signatures of the officers of the Seller signing this Agreement and
all
other documents to be delivered in connection with this Agreement;
21
(v) such
other
matters as required by this Agreement; and
(vi) such
other
matters as the Purchasers may reasonably request.
6. Seller
shall have applied to each U.S. securities exchange, interdealer quotation
system and other trading market where its Common Stock is currently listed
or
qualified for trading or quotation for the listing or qualification of the
Shares and the Warrant Shares for trading or quotation thereon in the time
and
manner required thereby.
7. Such
other
documents as the Purchasers shall reasonably request.
6.2 Conditions
to Obligations of the Seller to Effect the Closing.
The
obligations of the Seller to effect the Closing and the transactions
contemplated by this Agreement shall be subject to the satisfaction at or prior
to the Closing of each of the following conditions, any of which may be waived,
in writing, by the Seller:
(a) Each
of
the Purchasers shall deliver or cause to be delivered to the Seller (i) payment
of the Purchase Price set forth opposite each Purchaser’s name on Schedule
1,
in cash
by wire transfer of immediately available funds to an account designated in
writing by Seller prior to the date hereof; (ii) an executed copy of this
Agreement; (iii) an executed copy of the Registration Rights Agreement; and
(iv)
such other documents as the Seller shall reasonably request.
ARTICLE
VII - INDEMNIFICATION, TERMINATION AND DAMAGES
7.1 Survival
of Representations.
Except
as otherwise provided herein, the representations and warranties of the Seller
and the Purchasers contained in or made pursuant to this Agreement shall survive
the execution and delivery of this Agreement and the Closing Date and shall
continue in full force and effect for a period of three (3) years from the
Closing Date; provided, however, that the Seller’s warranties and
representations under Sections 3.13 (Taxes), 3.19 (Subsidiaries and
Investments), 3.20 (Capitalization), and 3.21 (Options, Warrants, Rights),
shall
survive the Closing Date and continue in full force and effect until the
expiration of all applicable statutes of limitation; and further provided that
the Seller’s warranties and representations under Section 3.25 (Environmental
Matters) shall survive the Closing Date and continue in full force and effect
for a period of six (6) years from the Closing Date. The Seller’s and the
Purchasers’ warranties and representations shall in no way be affected by any
investigation of the subject matter thereof made by or on behalf of the Seller
or the Purchasers.
7.2 Indemnification.
(a) The
Seller
agrees to indemnify and hold harmless the Purchasers, their Affiliates, each
of
their officers, directors, employees and agents and their respective successors
and assigns, from and against any losses, damages, or expenses which are caused
by or arise out of (i) any breach or default in the performance by the Seller
of
any covenant or agreement made by the Seller in this Agreement or in any of
the
Related Documents; (ii) any breach of warranty or representation made by the
Seller in this Agreement or in any of the Related Documents (iii) any and all
third party actions, suits, proceedings, claims, demands, judgments, costs
and
expenses (including reasonable legal fees and expenses) incident to any of
the
foregoing.
22
(b) Each
Purchaser, severally and not jointly, agrees to indemnify and hold harmless
the
Seller, its Affiliates, each of their officers, directors, employees and agents
and their respective successors and assigns, from and against any losses,
damages, or expenses which are caused by or arise out of (A) any breach or
default in the performance by such Purchaser of any covenant or agreement made
by such Purchaser in this Agreement or in any of the Related Documents; (B)
any
breach of warranty or representation made by such Purchaser in this Agreement
or
in any of the Related Documents; and (C) any and all third party actions, suits,
proceedings, claims, demands, judgments, costs and expenses (including
reasonable legal fees and expenses) incident to any of the foregoing; provided,
however, that such Purchaser’s liability under this Section 7.2(b) shall not
exceed the Purchase Price paid by such Purchaser hereunder.
7.3 Indemnity
Procedure.
A party
or parties hereto agreeing to be responsible for or to indemnify against any
matter pursuant to this Agreement is referred to herein as the “Indemnifying
Party” and the other party or parties claiming indemnity is referred to as the
“Indemnified Party”. An Indemnified Party under this Agreement shall, with
respect to claims asserted against such party by any third party, give written
notice to the Indemnifying Party of any liability which might give rise to
a
claim for indemnity under this Agreement within sixty (60) business days of
the
receipt of any written claim from any such third party, but not later than
twenty (20) days prior to the date any answer or responsive pleading is due,
and
with respect to other matters for which the Indemnified Party may seek
indemnification, give prompt written notice to the Indemnifying Party of any
liability which might give rise to a claim for indemnity; provided, however,
that any failure to give such notice will not waive any rights of the
Indemnified Party except to the extent the rights of the Indemnifying Party
are
materially prejudiced.
The
Indemnifying Party shall have the right, at its election, to take over the
defense or settlement of such claim by giving written notice to the Indemnified
Party at least fifteen (15) days prior to the time when an answer or other
responsive pleading or notice with respect thereto is required. If the
Indemnifying Party makes such election, it may conduct the defense of such
claim
through counsel of its choosing (subject to the Indemnified Party’s approval of
such counsel, which approval shall not be unreasonably withheld), shall be
solely responsible for the expenses of such defense and shall be bound by the
results of its defense or settlement of the claim. The Indemnifying Party shall
not settle any such claim without prior notice to and consultation with the
Indemnified Party, and no such settlement involving any equitable relief or
which might have an adverse effect on the Indemnified Party may be agreed to
without the written consent of the Indemnified Party (which consent shall not
be
unreasonably withheld). So long as the Indemnifying Party is diligently
contesting any such claim in good faith, the Indemnified Party may pay or settle
such claim only at its own expense and the Indemnifying Party will not be
responsible for the fees of separate legal counsel to the Indemnified Party,
unless the named parties to any proceeding include both parties or
representation of both parties by the same counsel would be inappropriate due
to
conflicts of interest or otherwise. If the Indemnifying Party does not make
such
election, or having made such election does not, in the reasonable opinion
of
the Indemnified Party proceed diligently to defend such claim, then the
Indemnified Party may (after written notice to the Indemnifying Party), at
the
expense of the Indemnifying Party, elect to take over the defense of and proceed
to handle such claim in its discretion and the Indemnifying Party shall be
bound
by any defense or settlement that the Indemnified Party may make in good faith
with respect to such claim. In connection therewith, the Indemnifying Party
will
fully cooperate with the Indemnified Party should the Indemnified Party elect
to
take over the defense of any such claim. The parties agree to cooperate in
defending such third party claims and the Indemnified Party shall provide such
cooperation and such access to its books, records and properties as the
Indemnifying Party shall reasonably request with respect to any matter for
which
indemnification is sought hereunder; and the parties hereto agree to cooperate
with each other in order to ensure the proper and adequate defense
thereof.
23
With
regard to claims of third parties for which indemnification is payable
hereunder, such indemnification shall be paid by the Indemnifying Party upon
the
earlier to occur of: (i) the entry of a judgment against the Indemnified Party
and the expiration of any applicable appeal period, or if earlier, five (5)
days
prior to the date that the judgment creditor has the right to execute the
judgment; (ii) the entry of an unappealable judgment or final appellate decision
against the Indemnified Party; or (iii) a settlement of the claim.
Notwithstanding the foregoing, the reasonable expenses of counsel to the
Indemnified Party shall be reimbursed on a current basis by the Indemnifying
Party. With regard to other claims for which indemnification is payable
hereunder, such indemnification shall be paid promptly by the Indemnifying
Party
upon demand by the Indemnified Party.
ARTICLE
VIII - MISCELLANEOUS
8.1 Further
Assurances.
Each
party agrees to cooperate fully with the other parties and to execute such
further instruments, documents and agreements and to give such further written
assurances as may be reasonably requested by any other party to better evidence
and reflect the transactions described herein and contemplated hereby and to
carry into effect the intents and purposes of this Agreement, and further agrees
to take promptly, or cause to be taken, all actions, and to do promptly, or
cause to be done, all things necessary, proper or advisable under applicable
law
to consummate and make effective the transactions contemplated hereby, to obtain
all necessary waivers, consents and approvals, to effect all necessary
registrations and filings, and to remove any injunctions or other impediments
or
delays, legal or otherwise, in order to consummate and make effective the
transactions contemplated by this Agreement for the purpose of securing to
the
parties hereto the benefits contemplated by this Agreement.
8.2 Fees
and Expenses.
The
parties hereto shall pay their own costs and expenses in connection
herewith.
8.3 Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number specified in this Section
prior to 5:00 p.m. (New York City time) on a business day, (b) the next business
day after the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number specified in this Section on a day that
is
not a business day or later than 5:00 p.m. (New York City time) on any business
day, (c) the business day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service such as Federal Express, or
(d)
actual receipt by the party to whom such notice is required to be given. The
address for such notices and communications shall be as follows:
24
If
to the
Purchasers at each Purchaser’s address set forth under its name on Schedule
1
attached
hereto, or with respect to the Seller, addressed to:
NexMed,
Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Chief Financial Officer
Facsimile
No.: ▇▇▇-▇▇▇-▇▇▇▇
or
to such
other address or addresses or facsimile number or numbers as any such party
may
most recently have designated in writing to the other parties hereto by such
notice. Copies of notices to the Seller shall be sent to ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇▇▇▇, Esq., Facsimile
No. (▇▇▇) ▇▇▇-▇▇▇▇. Copies of notices to any Purchaser shall be sent to the
addresses, if any, listed on Schedule
1
attached
hereto.
Unless
otherwise stated above, such communications shall be effective when they are
received by the addressee thereof in conformity with this Section. Any party
may
change its address for such communications by giving notice thereof to the
other
parties in conformity with this Section.
8.4 Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and enforced in accordance with the
laws
of the State of New York without reference to the conflicts of laws principles
thereof.
8.5 Jurisdiction
and Venue.
This
Agreement shall be subject to the exclusive jurisdiction of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of New York and if such court does not have proper
jurisdiction, the State Courts of New York County, New York. The parties to
this
Agreement agree that any breach of any term or condition of this Agreement
shall
be deemed to be a breach occurring in the State of New York by virtue of a
failure to perform an act required to be performed in the State of New York
and
irrevocably and expressly agree to submit to the jurisdiction of the ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of New York and if such court does not have
proper jurisdiction, the State Courts of New York County, New York for the
purpose of resolving any disputes among the parties relating to this Agreement
or the transactions contemplated hereby. The parties irrevocably waive, to
the
fullest extent permitted by law, any objection which they may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of
or
relating to this Agreement, or any judgment entered by any court in respect
hereof brought in New York County, New York, and further irrevocably waive
any
claim that any suit, action or proceeding brought in ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of New York and if such court does not have proper
jurisdiction, the State Courts of New York County, New York has been brought
in
an inconvenient forum. Each of the parties hereto consents to process being
served in any such suit, action or proceeding, by mailing a copy thereof to
such
party at the address in effect for notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of process and
notice thereof. Nothing in this Section 8.5 shall affect or limit any right
to
serve process in any other manner permitted by law.
25
8.6 Successors
and Assigns.
This
Agreement is personal to each of the parties and may not be assigned without
the
written consent of the other parties; provided, however, that any of the
Purchasers shall be permitted to assign this Agreement to any Person to whom
it
assigns or transfers securities issued or issuable pursuant to this Agreement.
Any assignee must be an “accredited investor” as defined in Rule 501(a)
promulgated under the Securities Act.
8.7 Severability.
If any
provision of this Agreement, or the application thereof, shall for any reason
or
to any extent be invalid or unenforceable, the remainder of this Agreement
and
application of such provision to other persons or circumstances shall continue
in full force and effect and in no way be affected, impaired or
invalidated.
8.8 Entire
Agreement.
This
Agreement and the other agreements and instruments referenced herein constitute
the entire understanding and agreement of the parties with respect to the
subject matter hereof and supersede all prior agreements and
understandings.
8.9 Other
Remedies.
Except
as otherwise provided herein, any and all remedies herein expressly conferred
upon a party shall be deemed cumulative with and not exclusive of any other
remedy conferred hereby or by law, or in equity on such party, and the exercise
of any one remedy shall not preclude the exercise of any other.
8.10 Amendment
and Waivers.
Subject
to Section 5.12, any term or provision 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) only by a writing
signed by the Seller and the Purchasers purchasing at least 75% of the Shares
hereunder, and such waiver or amendment, as the case may be, shall be binding
upon all Purchasers. The waiver by a party of any breach hereof or default
in
the performance hereof shall not be deemed to constitute a waiver of any other
default or any succeeding breach or default. This Agreement may not be amended
or supplemented by any party hereto except pursuant to a written amendment
executed by the Seller and the Purchasers purchasing at least 75% of the Shares
hereunder. No amendment shall be effected to impact a holder of Securities
in a
disproportionately adverse fashion without the consent of such individual
holder.
8.11 No
Waiver.
The
failure of any party to enforce any of the provisions hereof shall not be
construed to be a waiver of the right of such party thereafter to enforce such
provisions.
8.12 Construction
of Agreement; Knowledge.
For
purposes of this Agreement, the term “knowledge,” when used in reference to a
corporation means the knowledge of the directors and executive officers of
such
corporation (including, if applicable, any person designated as a chief
scientific, medical or technical officer) assuming such persons shall have
made
inquiry that is customary and appropriate under the circumstances to which
reference is made, and when used in reference to an individual means the
knowledge of such individual assuming the individual shall have made inquiry
that is customary and appropriate under the circumstances to which reference
is
made.
26
8.13 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original as against any party whose signature appears thereon and all of
which together shall constitute one and the same instrument. This Agreement
shall become binding when one or more counterparts hereof, individually or
taken
together, shall bear the signatures of all of the parties reflected hereon
as
signatories. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of
the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile signature page were an original
thereof.
8.14 No
Third Party Beneficiary.
Nothing
expressed or implied in this Agreement is intended, or shall be construed,
to
confer upon or give any person other than the parties hereto and their
respective heirs, personal representatives, legal representatives, successors
and permitted assigns, any rights or remedies under or by reason of this
Agreement.
8.15 Waiver
of Trial by Jury.
THE
PARTIES HERETO IRREVOCABLY WAIVE TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[Signature
Page Follows]
27
IN
WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the date first
above written.
| SELLER: | |||
| NEXMED, INC. | |||
| By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
|
|
|||
| Title: Vice President and Chief Financial Officer |
| PURCHASERS: | |||
| By: /s/ | |||
|
|
|||
| Title: |
Schedule 1
|
Name,
Address and Fax
Number of Purchaser |
Copies
of Notices to
|
Shares
of Common Stock Purchased
|
Common
Stock
Underlying Warrants |
Purchase
Price
|
|
The
Tail Wind Fund Ltd.
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, P.C.
|
404,495
|
161,798
|
$360,000
|
|
Solomon
Strategic Holdings
|
33,708
|
13,483
|
$30,000
|
|
|
Southpoint
Fund LP
|
354,443
|
141,777
|
$315,454
|
|
|
Southpoint
Qualified Fund LP
|
1,411,394
|
564,558
|
$1,256,141
|
|
|
Southpoint
Offshore Operating Fund LP
|
1,604,950
|
641,980
|
$1,428,406
|
|
|
Scopia
Partners LLC
|
Scopia
Partners LLC
|
72,893
|
29,157
|
$64,875
|
|
Scopia
Partners QP LLC
|
Scopia
Partners QP LLC
|
201,124
|
80,450
|
$179,000
|
|
Scopia
PX LLC
|
Scopia
PX LLC
|
417,837
|
167,135
|
$371,875
|
|
Scopia
International Limited
|
Same
as above
|
530,618
|
212,247
|
$472,250
|
|
Scopia
PX International Limited
|
Same
as above
|
182,023
|
72,809
|
$162,000
|
|
Loeb
Partners Corporation
|
1,000,000
|
400,000
|
$890,000
|
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
112,359
|
44,944
|
$100,000
|
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
112,359
|
44,944
|
$100,000
|
|
|
Akros
Absolute Return Fund
|
25,000
|
10,000
|
$22,250
|
|
|
Akros
Capital Fund LP
|
75,000
|
30,000
|
$66,750
|
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
56,180
|
22,472
|
$50,000
|
|
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇., MD
|
56,180
|
22,472
|
$50,000
|
|
|
▇▇▇
FBO ▇▇▇▇ ▇▇▇▇▇▇
|
56,180
|
22,472
|
$50,000
|
|
|
▇▇▇
▇▇▇▇
|
44,944
|
17,978
|
$40,000
|
|
|
MDNH
Trading Corp.
|
44,944
|
17,978
|
$40,000
|
|
|
MDNH
Partners LP
|
22,471
|
8,988
|
$20,000
|
|
|
Provident
Premier Master Fund
|
112,359
|
44,944
|
$100,000
|
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ TTEE, ▇▇▇▇▇▇▇▇ Capital Managemen, Inc., PT, FBO ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
56,180
|
22,472
|
$50,000
|
|
|
Clarion
Capital Corporation
|
280,899
|
112,359
|
$250,000
|
|
|
Chula
Partners, LP
|
112,359
|
44,944
|
$100,000
|
|
|
Regions
Bank as custodian for Arkansas Knee Clinic Profit Sharing
Plan
|
168,539
|
67,416
|
$150,000
|
|
|
Tan
Equity Partners
|
280,899
|
112,359
|
$250,000
|
|
|
Cherrytrust
& Co
|
280,899
|
112,359
|
$250,000
|
|
|
▇▇▇▇▇
& ▇▇▇▇▇ ▇▇▇▇ Revocable Trust
|
280,899
|
112,359
|
$250,000
|
|
|
▇▇▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇ Revocable Trust
|
56,180
|
22,472
|
$50,000
|
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
|
112,359
|
44,943
|
$100,000
|
|
|
▇▇▇▇▇▇
▇▇▇▇
|
28,090
|
11,236
|
$25,000
|
|
|
▇▇▇▇▇
▇ ▇▇▇▇▇
|
28,090
|
11,236
|
$25,000
|
|
|
Namtor
Growth Fund
|
224,719
|
89,888
|
$200,000
|
|
|
Iroquois
Capital
|
280,899
|
112,359
|
$250,000
|
|
|
SDS
Capital Group SPC, LTD.
|
224,719
|
89,888
|
$200,000
|
|
|
Totals:
|
9,347,191
|
3,738,876
|
$8,319,000
|
|