<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 22, 1999
REGISTRATION NO. 333-____
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEXMED, INC.
(Exact Name of Registrant as Specified in its Charter)
NEVADA
(State or Other Jurisdiction of Incorporation)
87-0449967
(I.R.S. Employer Identification Number)
350 CORPORATE BOULEVARD
ROBBINSVILLE, NEW JERSEY 08691
(609) 208-9688
(Address and Telephone Number of Principal Executive Offices)
NON-QUALIFIED PERFORMANCE INCENTIVE PROGRAM,
THE NEXMED, INC. NON-QUALIFIED STOCK OPTION PLAN,
THE NEXMED, INC. STOCK OPTION AND LONG-TERM INCENTIVE COMPENSATION PLAN
AND
THE NEXMED, INC. RECOGNITION AND RETENTION STOCK INCENTIVE PLAN
Full Title of Plans
VIVIAN H. LIU
350 CORPORATE BOULEVARD
ROBBINSVILLE, NEW JERSEY 08691
(609) 208-1623
(609) 208-1868 (FACSIMILE)
(Name, Address, and Telephone Number of Agent For Service)
COPIES TO:
SELIG D. SACKS, ESQ.
PRYOR CASHMAN SHERMAN & FLYNN LLP
410 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 421-4100
(212) 326-0806 (FACSIMILE)
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------- ------------------- ----------------------- ------------------------ -------------------------
- --------------------- ------------------- ----------------------- ------------------------ -------------------------
<S> <C> <C> <C> <C>
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to to be Offering Price Per Aggregate Registration
be Registered Registered * Share ** Offering Price Fee
- --------------------- ------------------- ----------------------- ------------------------ -------------------------
Common Stock 4,580,000 shares $ 4.14 $ 18,961,200 $5,005.76
($0.001 par
value)
- --------------------- ------------------- ----------------------- ------------------------ -------------------------
- --------------------- ------------------- ----------------------- ------------------------ -------------------------
</TABLE>
* All the securities registered hereby are issuable under the Plans.
** Estimated solely for the purpose of calculating the registration fee and
computed in accordance with Rule 457(c) under the Securities Act of 1933, upon
the basis of the average of the high and low prices reported in the consolidated
reporting system as of December 21, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference in this
registration statement:
(1) Our Annual Report on Form 10-KSB (File No. 0-22245) for the
fiscal year ended December 31, 1998;
(2) Our Quarterly Report on Form 10-QSB (File No. 0-22245) for the
fiscal quarter ended March 31, 1999;
(3) Our Quarterly Report on Form 10-QSB (File No. 0-22245) for the
fiscal quarter ended June 30, 1999;
(4) Our Quarterly Report on Form 10-QSB (File No. 0-22245) for the
fiscal quarter ended September 30, 1999;
(5) Our Current Report on Form 8-K (File No. 0-22245), dated
June 2, 1999;
(6) Our Current Report on Form 8-K (File No. 0-22245), dated
October 8, 1999; and
(7) The description of our common stock and our articles of
incorporation and bylaws, both contained in our Registration
Statement on 10-SB (File No. 0-22245), dated March 14, 1999,
including any amendment or report filed for the purpose of
updating such information.
All documents that we subsequently file with the Securities and
Exchange Commission pursuant to Section 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed
incorporated by reference in this registration statement and to be part thereof
from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our officers and directors are indemnified under Nevada law, our
Amended and Restated Articles of Incorporation and our By-laws as against
certain liabilities. Our Amended and Restated Articles of Incorporation require
us to indemnify our directors and officers to the fullest extent permitted from
time to time by the laws of the State of Nevada. Our By-laws contain provisions
that implement the indemnification provisions of our Amended and Restated
Articles of Incorporation.
II-1
<PAGE>
Pursuant to Article X of our Amended and Restated Articles of
Incorporation and to the extent permitted by the Nevada General Corporation Law,
none of our directors or officers shall be personally liable to us or our
stockholders for damages for breach of fiduciary duty as a director or officer,
except for (1) acts or omissions which involve intentional misconduct, fraud or
a knowing violation of law or (2) the payment of dividends in violation of the
applicable statutes of Nevada. Pursuant to Article XI of our Amended and
Restated Articles of Incorporation, we shall indemnify any and all persons and
their respective heirs, administrators, successors, and assignees, who may serve
at any time as directors or officers or who at the request of our Board of
Directors may serve or, at any time, have served as directors or officers of
another corporation in which we at such time owned or may own shares of stock or
which we were or may be a creditor, against any and all expenses, including
amounts paid upon judgments, counsel fees and amounts paid in settlement (before
or after suit is commenced), actually and reasonably incurred by such persons in
connection with the defense or settlement of any claim, action, suit or
proceeding in which may be asserted against them or any of them, by reason of
being or having been directors or officers or a director or officer of us, or
such other corporation. However, no director or officer shall be indemnified and
held harmless for matters as to which any such director or officer or former
director or officer or person shall be adjudged in any action, suit or
proceeding to be liable for his or her own negligence or misconduct in the
performance of his or her duty.
Pursuant to Section 8.1 of our By-laws, no officer or director
shall be personally liable for any obligations arising out of any his or her
acts or conduct performed for or on our behalf. We shall indemnify and hold
harmless each person and his or her heirs and administrators who shall serve at
any time as a director or officer from and against any and all claims, judgments
and liabilities to which such persons shall become subject by any reason of his
or her having been a director of officer or by reason of any action alleged to
have been taken or omitted to have been taken by him or her as such director or
officer, and shall reimburse each such person for all legal and other expenses
reasonably incurred by him or her in connection with any such claim or
liability, including power to defend such person from all suits as provided for
under the provisions of the Nevada General Corporation Law; provided, however,
that no such person shall be indemnified against, or be reimbursed for, any
expense incurred in connection with any claim or liability arising out of his or
her own negligence or willful misconduct. We, our directors, officers, employees
and agents shall be fully protected in taking any action or making any payment
or in refusing so to do in reliance upon the advice of counsel.
Section 78.7502 of the Nevada General Corporation Law permits a
corporation to indemnify a present or former director, officer, employee or
agent of the corporation, or of another entity which such person is or was
serving in such capacity at the request of the corporation made a party to any
threatened, pending or completed action, suit or proceeding, except by action by
or in the right of the corporation, against expenses, including legal expenses,
arising by reason of service in such capacity if such person acted in good faith
and in a manner which he or she reasonably believed to be in or not opposed to
the best interest of the corporation and, with respect to a criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
In the case of actions brought by or in the right of corporation,
indemnification may be made if the person acted in good faith and in a manner
which he or she reasonably believed to be in or not opposed to the best
interests of the corporation; provided, however, that no indemnification may be
made for any claim, issue or matter as to which such person has been adjudged by
a court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the corporation, unless and only to the extent that the court in
which the action or suit was brought or other court of competent jurisdiction
determines upon application that in view of all the circumstances of the case,
the person is fairly and reasonably entitled to indemnity for such expenses as
the court deems proper.
II-2
<PAGE>
Section 78.751 of the Nevada General Corporation Law permits any
discretionary indemnification under Section 78.502 of the Nevada General
Corporation Law, unless ordered by a court or advanced to a director or officer
by the corporation in accordance with the Nevada General Corporation Law,
authorized by determination that indemnification of the director, officer,
employee or agent is proper in the circumstances. The determination must be made
(1) by the stockholders, (2) by the board of directors by majority vote of a
quorum consisting of directors who were not parties to the action, suit or
proceeding, (3) if a majority vote of a quorum consisting of directors who were
not parties to the action, suit or proceeding so orders, by independent legal
counsel in a written opinion, or (4) if a quorum consisting of directors who
were not parties to the actions, suit or proceeding cannot be obtained, by
independent legal counsel in a written opinion.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
ITEM 8. EXHIBITS.
EXHIBIT
NO. DESCRIPTION
4.1 Form of common stock certificate (filed as Exhibit 3.1 to our Form
10-SB filed with the Securities and Exchange Commission on March
14, 1997, including any amendment or report filed for the purpose
of updating such information, and incorporated herein by
reference).
4.2 Form of Agreement dated November 15, 1995 between NexMed, Inc. and
each of Y. Joseph Mo, Ph.D., Vivian Liu, Ph.D. and Gilbert S.
Banker, Ph.D, which are collectively commonly referred to by
NexMed, Inc. as the Non-Qualified Performance Incentive Program.
4.3 The NexMed, Inc. Non-Qualified Stock Option Plan (filed as Exhibit
6.6 to our Form 10-SB/A filed with the Securities and Exchange
Commission on June 5, 1997, including any amendment or report filed
for the purpose of updating such information, and incorporated
herein by reference).
4.4 The NexMed, Inc. Stock Option and Long-Term Incentive Compensation
Plan (filed as Exhibit 6.4 to our Form 10-SB/A filed with the
Securities and Exchange Commission on June 5, 1997, including any
amendment or report filed for the purpose of updating such
information, and incorporated herein by reference).
4.5 The NexMed, Inc. Recognition and Retention Stock Option Plan (filed
as Exhibit 6.5 to our Form 10-SB/A filed with the Securities and
Exchange Commission on June 5, 1997, including any amendment or
report filed for the purpose of updating such information, and
incorporated herein by reference).
5.1 Opinion of Pryor Cashman Sherman & Flynn LLP (regarding validity of
common stock being registered).
23.1 Consent of Pryor Cashman Sherman & Flynn LLP (included as part of
Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
II-3
<PAGE>
ITEM 9. UNDERTAKINGS.
We, the undersigned Registrant, hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement
to include any material information with respect to the plan of
distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
We hereby further undertake that:
(1) For the purpose of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance under
Rule 430A and contained in a form of prospectus filed by us
pursuant to Rule 424(b)(1) or 497(h) under the Securities Act of
1933 shall be deemed to be part of this registration statement at
the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by us of expenses incurred or paid by
one of our directors, officers or controlling persons in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, we will,
unless in the opinion of our counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by us is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
we certify that we have reasonable grounds to believe that we meet all the
requirements for filing on Form S-8 and have duly caused this registration
statement to be signed on our behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on this 22nd day of
December, 1999.
NEXMED, INC.
By: /S/ Y. Joseph Mo
---------------------------------------
Y. Joseph Mo
Chairman of the Board of Directors,
President and C.E.O.
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Y. Joseph Mo or Vivian H. Liu or
any one of them, his or her attorneys-in-fact and agents, each with full power
of substitution and resubstitution for him or her in any and all capacities, to
sign any or all amendments or post-effective amendments to this registration
statement or a registration statement prepared in accordance with Rule 462 of
the Securities Act of 1933, as amended, and to file the same, with exhibits
thereto and other documents in connection herewith or in connection with the
registration of the offered securities under the Securities Exchange Act of
1934, as amended, with the Securities and Exchange Commission, granting unto
each of such attorneys-in-fact and agents full power to do and perform each and
every act and thing requisite and necessary in connection with such matters and
hereby ratifying and confirming all that each of such attorneys-in-fact and
agents or his or her substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Y. JOSEPH MO Chairman of the Board of December 22, 1999
- --------------------------- Directors, President and
Y. JOSEPH MO C.E.O.
/s/ VIVIAN H. LIU Vice President, Chief December 22, 1999
- --------------------------- Financial Officer and
VIVIAN H. LIU Secretary
/s/ GILBERT S. BANKER Director December 22, 1999
- ---------------------------
GILBERT S. BANKER
<PAGE>
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ ROBERT W. GRACY Director December 22, 1999
- ---------------------------
Robert W. Gracy
/s/ YU-CHUNG WEI Director December 22, 1999
- ---------------------------
Yu-Chung Wei
/s/ JAMES L. YEAGER Director and Vice President December 22, 1999
- ---------------------------
James L. Yeager
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
NO. DESCRIPTION PAGE
- -- ----------- ----
<S> <C> <C>
4.1 Form of common stock certificate (filed as Exhibit 3.1 to our
Form 10-SB filed with the Securities and Exchange Commission
on March 14, 1997, including any amendment or report filed for
the purpose of updating such information, and incorporated
herein by reference).
4.2 Form of Agreement dated November 15, 1995 between NexMed, Inc.
and each of Y. Joseph Mo, Ph.D., Vivian Liu, Ph.D. and Gilbert
S. Banker, Ph.D, which are collectively commonly referred to
by NexMed, Inc. as the Non-Qualified Performance Incentive
Program.
4.3 The NexMed, Inc. Non-Qualified Stock Option Plan (filed as
Exhibit 6.6 to our Form 10-SB/A filed with the Securities and
Exchange Commission on June 5, 1997, including any amendment
or report filed for the purpose of updating such information,
and incorporated herein by reference).
4.4 The NexMed, Inc. Stock Option and Long-Term Incentive
Compensation Plan (filed as Exhibit 6.4 to our Form 10-SB/A
filed with the Securities and Exchange Commission on June 5,
1997, including any amendment or report filed for the purpose
of updating such information, and incorporated herein by
reference).
4.5 The NexMed, Inc. Recognition and Retention Stock Option Plan
(filed as Exhibit 6.5 to our Form 10-SB/A filed with the
Securities and Exchange Commission on June 5, 1997, including
any amendment or report filed for the purpose of updating such
information, and incorporated herein by reference).
5.1 Opinion of Pryor Cashman Sherman & Flynn LLP (regarding
validity of common stock being registered).
23.1 Consent of Pryor Cashman Sherman & Flynn LLP (included as part
of Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
</TABLE>
<PAGE>
EXHIBIT 4.2
-----------
VOID AFTER DECEMBER 1, 2002
OPTION TO PURCHASE COMMON STOCK OF NEXMED, INC.
1.0 OPTION.
This certifies that, for value received, ____________ is entitled,
subject to the terms hereof, to purchase from NexMed, Inc. (the "Company"), a
Nevada corporation, the number of shares set forth below of fully paid and
nonassessable shares of the Common Stock of the Company. The purchase price per
share (the "Purchase Price") shall be $0.25 per share.
____________ shares if and whenever a total market capitalization for
the Company reaches $2,000,000 on an average of any consecutive (10) trading
days period prior to December 28, 1997.
An additional _______________ shares if and whenever a total market
capitalization for the Company reaches $3,000,000 on an average of any
consecutive ten (10) trading days period prior to December 28, 1998.
Still another additional _____________ shares if and whenever a total
market capitalization for the Company reaches $5,000,000 on an average of any
consecutive ten (10) trading days period prior to December 28, 1998.
Yet still another additional _______________ shares of Common Stock of
the Company if and whenever a total market capitalization for NexMed, Inc.
reaches $10,000,000 on an average of any consecutive ten (10) trading days prior
to December 28, 1998.
*Total market capitalization shall be determined by the average closing bid
price of all the market-makers or others who submit quotations for the Company's
shares of common stock into the National Association of Securities Dealers
Electronic Bulletin Board or such other national exchange or market where
dealers are submitting quotations for the Company's shares of common stock for
any consecutive ten day period multiplied by the number of shares issued and
outstanding as of Monday, November 13, 1995, which is 2,486,297 shares; that the
total market capitalization shall be calculated by the Secretary of the Company,
and verified and authenticated by the Auditor in the subsequent audit, with the
Auditor's determination being final; and that for example 2,486,297 shares shall
be multiplied by the average closing price for the preceding successive ten
trading days of $1.00 to yield a total market capitalization of $2,496,297.00.
2.0 EXERCISE AND EXCHANGE RESTRICTIONS.
If at any time of any exercise or surrender for exchange any of the
Options or of Common Stock issued on the exercise of this Option, such Option or
Common Stock is not registered under the Securities Act of 1933, as amended, the
Company may require as a condition to allowing any exercise or exchange, that
the holder of this Option or Common Stock furnish to the Company such
information as, in the opinion of its counsel, is necessary to establish that
the exercise or exchange may be made without registration under the 1933 Act.
That information shall include a written statement that the holder is purchasing
the Common Stock for the holders own account, for investment and not with a view
to the sale or distribution of the Option or Common Stock nor with any then
present intention of distributing or selling the Option or Common Stock. Any
such Option or Common Stock certificates may, at the
<PAGE>
Company's option, include any legend considered necessary or desirable to comply
with the Securities Act of 1933.
3.0 EXERCISES
3.1 The holder of this Option may exercise it in full by surrender of
this Option, with the form of subscription at the end of this Option duly
executed by the holder, to the Company at its principal office, accompanied by
payment in full of the amount obtained by multiplying the Purchase Price by the
number of shares of Common Stock specified on the face of this Option (without
giving effect to any adjustment of that number). Payment may be in cash or by
cashiers or certified check payable to the order of the Company.
3.2 The holder of this Option may exercise it in part by surrendering
it, accompanied by payment as provided above, except that the amount payable by
the holder on such partial exercise shall be the amount obtained by multiplying
the Purchase Price by the number of shares of Common Stock (without giving
effect to any adjustment of that number) designated by the holder in the
subscription at the end of this Option. On partial exercise, the Company shall
promptly issue and deliver to the holder of this Option a new Option in the name
of that Holder providing the right to purchase that number of share of Common
Stock (without giving effect to any adjustment of that number) for which this
Option has not been exercised.
3.3 The holder of this Option must have a continued and uninterrupted
relationship with the Company, from November 13, 1995 to the date the relevant
total market capitalization is achieved.
4.0 DELIVERY OF STOCK CERTIFICATE
As soon as possible after full or partial exercise of this Option, the
Company at its expense will cause to be issued in the name of and delivered to
the holder of this Option, a certificate or certificates for the number of fully
paid and nonassessable shares of Common Stock to which that holder shall be
entitled on such exercise, together with any other securities and property to
which that holder is entitled on such exercise under the terms of this Option.
No fractional share will be issued on exercise of right to purchase under this
Option. If on any exercise of this Option a fraction of share results, the
Company will pay the cash value of that fractional share, calculated on the
basis of the exercise price. Upon the full or partial exercise of this Option
the Company at its expense will pay for no more than a total of five (5)
certificates.
5.0 STOCK SPLITS AND COMBINATIONS
If the Company shall at any time subdivide or combine its outstanding
shares of Common Stock, this Option shall, after that subdivision or
combination, evidence the right to purchase the number of shares of Common Stock
that would have been issuable as a result of that change with respect to the
shares of Common Stock which were purchasable under this Option immediately
before that subdivision or combination. If the Company shall at any time
subdivide the outstanding shares of Common Stock, the Purchase Price then in
effect immediately before that subdivision shall be proportionately decreased,
and if the Company shall at any time combine the outstanding shares of Common
Stock, the Purchase Price then in effect immediately before that combination
shall be proportionately increased. Any adjustment under this section shall
become effective at the close of business on the date the subdivision or
combination becomes effective.
6.0 EXEMPT ISSUANCES
<PAGE>
Except as provided in Section 5.0 above, corporate transactions shall
be exempt from any provision of this Agreement requiring adjustments to the
number of shares purchasable under this Option. Corporate transactions shall
include, but are not limited to, the future issuance of Common Stock, Preferred
Stock or convertible securities, a capital reorganization of the Company's Stock
(other than as provided in Section 4.0 above), a merger or consolidation of the
Company with or into another corporation or a sales of the Company's assets.
7.0 NO DILUTION OR IMPAIRMENT
The Company covenants that it will not, by amendment of its articles of
incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities, or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Option. The Company will at all times in good faith assist in carrying out all
those terms and in taking all action necessary or appropriate to protect the
rights of the holder of this Option. Without limiting the generality of the
above provision, the Company:
(1) will take all necessary or appropriate action in order that the
Company may validly and legally issued fully paid and nonassessable shares of
stock on exercise of this Option, and
(2) will not transfer all or substantially all of its properties and
assets to any other person, or consolidate with or merge into any other
corporation or permit any corporation to consolidate with or merge into the
Company (if the Company is not the surviving corporation), unless such other
person or corporation shall expressly assume in writing and will be bound by all
of the terms of this Option.
8.0 NO CHANGE IN OPTION
The form of this Option need not be changed because of any adjustment
in the number of shares of Common Stock purchasable on its exercise. An Option
issued after any such adjustment on any partial exercise or in replacement may
continue to express the same Purchase Prices and the same number of share of
Common Stock (appropriately reduced in the case of partial exercise) as are
stated on the face of this Option as initially issued, and that Purchase Price
and that number of shares shall be considered to have been so changed as of the
close of business on the date of adjustment.
9.0 RESERVATION OF STOCK
The Company covenants that it will at all times reserve and keep
available, solely for issuance on exercise of this Option, all shares of Common
Stock or other securities from time to time issuable on exercise of this Option.
10. NO RIGHTS AS SHAREHOLDERS
No holder of this Option, as such, shall be entitled to vote, or
receive dividends or be considered a shareholder of the Company for any purpose,
nor shall anything in this Option be construed to confer on any holder of this
Option, as such, any rights of a shareholder of the Company or any right to
vote, give or withhold consent to any corporation action, to receive notice of
meetings of shareholders, to receive dividends or subscription rights or
otherwise.
<PAGE>
11.0 NEGOTIABILITY
11.1 Subject to the provisions of this Option regarding the Securities
Act of 1933 and with the written consent of Company, title to this Option may be
transferred by endorsement (by the holder of this Option) and delivery in the
same manner as negotiable instrument transferable by endorsement and delivery.
11.2 Until this Option is transferred on the books of the Company, the
Company may treat the registered holder of this Option as the absolute owner of
this Option for all purposes, notwithstanding any notice to the contrary.
11.3 On surrender of this Option for exchange, property endorsed, and
subject to the provisions of this Option regarding compliance with the
Securities Act of 1933, the Company will issue to or on the order of the holder
of this Option, (a) new option(s) of like tenor in the name of that holder or a
new holder as directed, calling in the aggregate on the face of such option for
the number of shares of Common Stock called for on the face of this Option.
12.0 MODIFICATION
This Option and any of its terms may be changed, waived, or terminated
only by a written instrument signed by the party against which enforcement of
that change, waiver, or termination is sought.
13.0 GOVERNING LAW
This Option shall be construed and enforced in accordance with the laws
of the State of Utah.
14.0 ATTORNEY'S FEES
If a dispute arises out of this Agreement, including arbitration, the
prevailing party shall be entitled to recover reasonable attorney's fees, costs
and expenses incurred in connection with such dispute.
15.0 EXPIRATION
The right to exercise this Option shall expire at 5:00 p.m., Pacific
time on December 1, 2002.
Dated: November 15, 1995
NexMed, Inc.
/s/ Y. JOSEPH MO
-----------------------
Y. Joseph Mo, President
/s/ VIVIAN LIU
---------------------
Vivian Liu, Secretary
<PAGE>
EXHIBIT 5.1
-----------
[LETTERHEAD OF PRYOR CASHMAN SHERMAN & FLYNN LLP]
December 22, 1999
NexMed, Inc.
350 Corporate Boulevard
Robbinsville, New Jersey 08691
Ladies and Gentlemen:
We are acting as counsel to NexMed, Inc., a Nevada corporation (the
"Company"), in connection with the Registration Statement on Form S-8, File No.
333-______ (the "Registration Statement"), as filed by the Company with the
Securities and Exchange Commission with respect to the registration under the
Securities Act of 1933, as amended (the "Act"), of 4,580,000 shares (the
"Shares") of common stock, par value $0.001 per share, for delivery under the
Company's Non-Qualified Performance Incentive Program, Non-Qualified Stock
Option Plan, Stock Option and Long Term Incentive Compensation Plan and
Recognition and Retention Stock Incentive Plan (collectively, the "Plans").
We are qualified to practice law in the State of New York. We express
no opinion as to, and, for the purposes of the opinion set forth herein, we have
conducted no investigation of, and do not purport to be experts on, any laws
other than the laws of the State of New York, the Nevada General Corporation Law
and the federal securities laws of the United States of America.
We have examined such documents as we considered necessary for the
purposes of this opinion. Based on such examination, it is our opinion that the
Shares have been duly authorized and, upon issuance in accordance with the
Plans, will be legally issued, fully-paid and non-assessable under the laws of
the State of Nevada.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
This opinion is furnished in connection with the transactions covered
hereby. This opinion may not be relied upon by you for any other purpose, or
furnished to, quoted to, or relied upon by any other person, firm or corporation
for any purpose, without prior written consent.
Very truly yours,
/s/ Pryor Cashman Sherman & Flynn LLP
<PAGE>
EXHIBIT 23.2
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 19, 1999, relating to the
financial statements and financial statement schedules, which appears in NexMed,
Inc.'s Annual Report on Form 10-KSB for the year ended December 31, 1998.
/s/ PRICEWATERHOUSECOOPERS LLP
- ----------------------------------
PricewaterhouseCoopers LLP
New York, New York
December 20, 1999
