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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 12, 2000
REGISTRATION NO. 333-93435
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1
TO FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEXMED, INC.
(Exact Name of Registrant as Specified in its Charter)
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<S> <C>
NEVADA 87-0449967
(State or Other Jurisdiction of Incorporation) (I.R.S. Employer Identification Number)
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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) 208-1621 (FACSIMILE)
(Name, Address, and Telephone Number of Agent for Service)
COPIES TO:
JEFFREY A. RINDE, ESQ.
BONDY & SCHLOSS LLP
6 EAST 43RD STREET
NEW YORK, NEW YORK 10017
(212) 661-3535
(212) 972-1677 (FACSIMILE)
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of Registration
Registered Registered (1) Share (2) Price Fee
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<S> <C> <C> <C> <C>
Common Stock ($0.001 3,500,000 shares $17.30 $60,550,000 $ 15,985.20
par value)
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(1) The Registrant previously registered 4,580,000 shares of its common stock on
December 22, 1999 by filing a Registration Statement on Form S-8 (File No.
333-93435), 3,000,000 shares of which may be issued pursuant to its Stock Option
and Long-Term Incentive Compensation Plan, and 1,000,000 shares of which may be
issued pursuant to its Recognition and Retention Stock Incentive Plan. This
filing is solely to register 3,000,000 additional shares which may be issued
pursuant to the Stock Option and Long-Term Incentive Compensation Plan and
500,000 additional shares which may be issued pursuant to Recognition and
Retention Stock Incentive Plan.
(2) An offering price of $17.30 per share for the 3,500,000 shares being
registered herewith has been estimated, pursuant to Section 457(c) and (h) on
the basis of the average of the high and low prices of shares as reported by the
Nasdaq SmallCap Market on October 11, 2000, solely for the purpose of
calculating the registration fee.
(3) The Registrant previously paid $5,005.76 in connection with the filing by
the Registrant of a Registration Statement on Form S-8 (File No. 333-93435) to
register 4,580,000 shares of the Registrant's common stock. The registration fee
is for the 3,500,000 additional shares being registered herewith.
REGISTRATION OF ADDITIONAL SECURITIES
This Amendment No. 1 to the Registration Statement on Form S-8 is being
filed by NexMed, Inc. (the "Company"), pursuant to General Instruction E to the
Form S-8 Registration Statement under the Securities Act of 1933, as amended, in
connection with the registration of an additional 3,500,000 shares of the
Company's common stock, par value $0.001 per share (the "Common Stock"),
3,000,000 of which are issuable pursuant to the Company's Stock Option and
Long-Term Incentive Compensation Plan and 500,000 of which are issuable pursuant
to the Recognition and Retention Stock Incentive Plan (collectively, the
"Plans"). A total of 4,000,000 shares of Common Stock issuable under the Plans
have been registered pursuant to the Company's Registration Statement on Form
S-8 (File No. 333-93435) filed with the Securities and Exchange Commission on
December 22, 1999 and the information contained therein is hereby incorporated
herein by reference.
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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, 1999;
(2) Our Quarterly Report on Form 10-QSB (File No. 0-22245) for the
fiscal quarter ended March 31, 2000;
(3) Our Quarterly Report on Form 10-QSB (File No. 0-22245)
for the fiscal quarter ended June 30, 2000;
(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;
(7) Our Current Report on Form 8-K (File No. 0-22245) dated
April 21, 2000;
(8) The description of our common stock and our articles of
incorporation and bylaws, both contained in our registration
statement on Form 10-SB (File No. 0-22245) and dated March 14, 1997,
including any amendment or report filed for the purpose of updating
such information;
(9) Our Registration Statement on Form S-8(File No. 333-93435)
filed with the Securities and Exchange Commission on
December 22, 1999.
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.
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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 willful 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.
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
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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 H. Liu and Gilbert S. Banker, Ph.D,
which are collectively commonly referred to by NexMed, Inc. as the
Non-Qualified Performance Incentive Program (filed as Exhibit 4.2 to
our Registration Statement on Form 8-A filed with the Securities and
Exchange Commission on December 22, 1999, including any amendment or
report filed for the purpose of updating such information, and
incorporated herein by reference).
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 Bondy & Schloss LLP (regarding validity of common stock
being registered).
23.1 Consent of Bondy & Schloss LLP (included as part of Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
II-3
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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, as amended (the "Securities Act") 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, 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 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, 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 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 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 and will be governed by the final adjudication of such issue.
II-4
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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-8 and have duly caused this registration
statement to be signed on our behalf by the undersigned, thereunto duly
authorized, in the City of Robbinsville, State of New Jersey on this 12th day
of October, 2000.
NEXMED, INC.
By: /s/ Y. JOSEPH MO
-----------------------
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 registration statement has been signed by the following persons in the
capacities and on the dates indicated:
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SIGNATURE TITLE DATE
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/s/ Y. Joseph Mo Chairman of the Board of October 12, 2000
------------------------ Directors, President and
Y. Joseph Mo C.E.O.
/s/ Vivian H. Liu Vice President, Chief October 12, 2000
------------------------ Financial Officer and
Vivian H. Liu Secretary
* Director, Vice President, October 12, 2000
------------------------ R&D and Business Development
James L. Yeager, Ph.D.
* Director October 12, 2000
------------------------
Gilbert S. Banker, Ph.D.
* Director October 12, 2000
------------------------
Robert W. Gracy, Ph.D.
* Director October 12, 2000
------------------------
Yu-Chung Wei
*By: /s/ Y. Joseph Mo
------------------------
Y. Joseph Mo,
Attorney in Fact
October 12, 2000
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EXHIBIT INDEX
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 H. Liu, and Gilbert S. Banker, Ph.D, which are
collectively commonly referred to by NexMed, Inc. as the Non-Qualified
Performance Incentive Program (filed as Exhibit 4.2 to our registration
statement on Form 8-A filed with the Securities and Exchange Commission on
December 22, 1999, including any amendment or report filed for the purpose
of updating such information, and incorporated herein by reference).
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 Bondy & Schloss LLP (regarding validity of common stock being
registered).
23.1 Consent of Bondy & Schloss LLP (included as part of Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
II-6
