WITH THE REQUIREMENTS OF SECTION 409A OF
THE CODE, INCLUDING, WHERE APPLICABLE, THE REQUIREMENT THAT (I) ANY
REIMBURSEMENT SHALL BE FOR EXPENSES INCURRED DURING EXECUTIVE'S LIFETIME (OR
DURING A SHORTER PERIOD OF TIME SPECIFIED IN THIS AGREEMENT), (II) THE AMOUNT OF
EXPENSES ELIGIBLE FOR REIMBURSEMENT, OR IN-KIND BENEFITS PROVIDED, DURING A
CALENDAR YEAR MAY NOT AFFECT THE EXPENSES ELIGIBLE FOR REIMBURSEMENT, OR IN-KIND
BENEFITS TO BE PROVIDED, IN ANY OTHER CALENDAR YEAR, (III) THE REIMBURSEMENT OF
AN ELIGIBLE EXPENSE WILL BE MADE ON OR BEFORE THE LAST DAY OF THE CALENDAR YEAR
FOLLOWING THE YEAR IN WHICH THE EXPENSE IS INCURRED, AND (IV) THE RIGHT TO
REIMBURSEMENT OR IN-KIND BENEFITS IS NOT SUBJECT TO LIQUIDATION OR EXCHANGE FOR
ANOTHER BENEFIT.
GOVERNING LAW; JURISDICTION.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND ENFORCED ACCORDING TO, THE DOMESTIC LAWS OF THE STATE OF NEW JERSEY WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF, OR SUCH PRINCIPLES
OF ANY OTHER JURISDICTION, WHICH COULD CAUSE THE APPLICATION OF THE SUBSTANTIVE
LAW OF ANY JURISDICTION OTHER THAN THE STATE OF NEW JERSEY.
THE COMPANY AND
EXECUTIVE AGREE THAT THE STATE OR FEDERAL COURTS OF NEW JERSEY SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY DISPUTE WHICH MAY ARISE UNDER
THIS AGREEMENT.
SEVERABILITY.
THE INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION OF THIS
AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION
OF THIS AGREEMENT, AND EACH OTHER PROVISION OF THE AGREEMENT SHALL BE SEVERABLE
AND ENFORCEABLE TO THE EXTENT PERMITTED BY LAW.
HEADINGS.
THE HEADINGS OF THE SECTIONS HEREOF ARE PROVIDED FOR CONVENIENCE ONLY
AND ARE NOT TO SERVE AS A BASIS FOR INTERPRETATION OR CONSTRUCTION, AND SHALL
NOT CONSTITUTE A PART, OF THIS AGREEMENT.
SIGNATURE IN COUNTERPARTS.
THIS AGREEMENT MAY BE SIGNED IN COUNTERPARTS, EACH
OF WHICH SHALL BE AN ORIGINAL, WITH THE SAME EFFECT AS IF THE SIGNATURES THERETO
AND HERETO WERE UPON THE SAME INSTRUMENT.
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IN WITNESS WHEREOF, Executive has hereunto set his hand and the Company has
caused this Agreement to be executed in its name on its behalf, all as of the
day and year first above written.
/s/ Mark Westgate
December 11, 2007
Mark Westgate
Date
NEXMED, INC.
By:
/s/ Vivian Liu
December 11, 2007
Vivian Liu
President & Chief Executive Officer
Date
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