AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 22, 1999
REGISTRATION NO. 333-____
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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)
CALCULATION OF REGISTRATION FEE
- --------------------- ------------------- ----------------------- ------------------------ -------------------------
- --------------------- ------------------- ----------------------- ------------------------ -------------------------
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)
- --------------------- ------------------- ----------------------- ------------------------ -------------------------
- --------------------- ------------------- ----------------------- ------------------------ -------------------------
* 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.
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
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
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
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
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
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GILBERT S. BANKER
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ ROBERT W. GRACY Director December 22, 1999
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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
EXHIBIT INDEX
Sequentially
Exhibit Numbered
NO. DESCRIPTION PAGE
- -- ----------- ----
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.