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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 11, 2000
REGISTRATION NO. 333-46976
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEXMED, INC.
(Exact Name of Registrant as Specified in its Charter)
NEVADA 87-0449967
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation) Identification Number)
350 CORPORATE BOULEVARD
ROBBINSVILLE, NEW JERSEY 08691
(609) 208-9688
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
VIVIAN H. LIU
350 CORPORATE BOULEVARD
ROBBINSVILLE, NEW JERSEY 08691
(609) 208-9688
(609) 208-1868 (FACSIMILE)
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
COPIES TO:
ROBERT C. CIRICILLO, ESQ. ROBERT L. KOHL, ESQ.
350 CORPORATE BOULEVARD ROSENMAN & COLIN LLP
ROBBINSVILLE, NEW JERSEY 08691 575 MADISON AVENUE
(609) 208-9688 NEW YORK, NEW YORK 10022
(609) 208-1622 (FACSIMILE) (212) 940-8800
(212) 940-8776(FACSIMILE)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO
THE PUBLIC: As soon as possible after the Registration Statement becomes
effective.
If the only Securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, check the following box.
[ ]
If any of the Securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than Securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this form is filed to register additional Securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act of 1933 registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c)under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
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The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission acting pursuant to said Section 8(a)
may determine.
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EXPLANATORY NOTE
The purpose of this Amendment No. 1 to the Registration Statement on
Form S-3 is to file an Exhibit to the Registration Statement as set forth below
in Item 16 of Part II.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Expenses to be paid by us, NexMed, Inc., in connection with the
issuance and distribution of the securities being registered are as follows:
Registration Fees $ 28,580.30
Legal Fees and Expenses* 50,000.00
Accounting Fees and Expenses* 10,000.00
Miscellaneous* 11,419.70
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Total $100,000.00
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* Estimated
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The selling shareholders will pay none of the expenses incident to the
registration of the selling shareholders' shares, except for any selling
discounts or commissions paid to brokers or dealers engaged by the selling
shareholders.
ITEM 15. 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.
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 statues 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 negligence or misconduct in the performance of his
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 of his or her acts or
conduct performed for or on our behalf. We shall indemnify and hold harmless
each person and his 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
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 as such director or officer, and
shall reimburse each such person for all legal and other expenses reasonably
incurred by him 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
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for, any expense incurred in connection with any claim or liability arising out
of his 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 to do so 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 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 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 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.
Section 78.751 of the Nevada General Corporation Law permits any
discretionary indemnification under Section 78.7502 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 of
indemnification 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.
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ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit Number Description
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<S> <C>
4.1 Form of Common Stock certificate(1)
4.2* Form of Unit Purchase Agreement and Warrant
4.3 Rights Agreement and form of Rights Certificate(2)
4.4 Certificate of Designation of Series A Junior Participating Preferred Stock (2)
5.1 Opinion of Schreck Morris regarding the validity of the Common Stock being
registered
23.1 Consent of Schreck Morris (included as part of Exhibit 5.1)
23.2* Consent of PricewaterhouseCoopers LLP
</TABLE>
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(1) Incorporated herein by reference to Exhibit 3.1 to our Registration
Statement on Form 10-SB filed with the Commission on March 14, 1997, including
any amendment or report filed for the purpose of updating such information.
(2) Incorporated herein by reference to Exhibit 4 to our Current Report on Form
8-K filed with the Commission on April 10, 2000.
*Previously filed with this Registration Statement
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Item 17. 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.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act of 1934 that is incorporated by reference in this
registration statement 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.
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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.
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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-3 and have duly caused this Amendment No. 1 to
the Registration Statement on Form S-3 to be signed on our behalf by the
undersigned, thereunto duly authorized, in the City of Robbinsville, State of
New Jersey on this 11th day of October 2000.
NEXMED, INC.
By:
/s/ Y. Joseph Mo
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Y. Joseph Mo
Chairman of the
Board of Directors,
President and C.E.O.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to the Registration Statement on Form S-3 has been signed
by the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Y. Joseph Mo Chairman of the Board of October 11, 2000
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Y. JOSEPH MO Directors, President
and C.E.O.
*
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VIVIAN H. LIU Vice President, Chief Financial October 11, 2000
Officer and Secretary
*
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JAMES YEAGER Director, Vice-President, R&D and October 11, 2000
Business Development
*
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GILBERT S. BANKER Director October 11, 2000
*
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ROBERT W. GRACY October 11, 2000
Director
*
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YU-CHUNG WEI Director October 11, 2000
By: /s/ Y. Joseph Mo October 11, 2000
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Y. JOSEPH MO
(ATTORNEY-IN-FACT)
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description
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<S> <C>
4.1 Form of Common Stock certificate(1)
4.2* Form of Unit Purchase Agreement and Warrant
4.3 Rights Agreement and form of Rights Certificate(2)
4.4 Certificate of Designation of Series A Junior Participating Preferred Stock (2)
5.1 Opinion of Schreck Morris regarding the validity of the Common Stock being
registered
23.1 Consent of Schreck Morris (included as part of Exhibit 5.1)
23.2* Consent of PricewaterhouseCoopers LLP
</TABLE>
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(1) Incorporated herein by reference to Exhibit 3.1 to our Registration
Statement on Form 10-SB filed with the Commission on March 14,1997, including
any amendment or report filed for the purpose of updating such information.
(2) Incorporated herein by reference to Exhibit 4 to the our Current Report on
Form 8-K filed with the Commission on April 10, 2000.
* Previously filed with this Registration Statement
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