UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
|
FORM
8-K
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CURRENT
REPORT
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Pursuant
to Section 13 OR 15(d) of the Securities Exchange Act of 1934
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Date
of Report (Date of earliest event reported): May 24,
2010
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NexMed,
Inc.
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(Exact
name of registrant as specified in its
charter)
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|
|
|
Nevada
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0-22245
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87-0449967
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(State
or other jurisdiction
of
incorporation)
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(Commission
File
Number)
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(I.R.S.
Employer
Identification
No.)
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|
|
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6330
Nancy Ridge Drive, Suite 103, San Diego, California
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92121
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code (858)
222-8041
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|
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(Former
name or former address, if changed since last
report.)
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Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any
of the following provisions:
|
|
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13a-4(c))
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Item
5.02
Departure of Directors or Certain
Officers; Election of Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
The disclosure set forth below under
Item 5.07 regarding the conditional resignation of Richard J. Berman as a Class
II director is incorporated herein by reference. This conditional
resignation has been tendered solely in connection with the implementation of
the Majority Vote Policy (defined below) and is not due to any disagreement
between Mr. Berman and NexMed, Inc. (the “
Company
”).
Item
5.07 Submission
of Matters to a Vote of Security Holders.
On May
24, 2010, the Company held an annual meeting of stockholders to: (i) elect two
Class I directors to serve until the 2013 annual meeting; (ii) elect two Class
II directors to serve until the 2012 annual meeting; (iii) ratify the selection
of Amper, Politziner & Mattia LLP as its independent registered public
accounting firm for the year ending December 31, 2010; (iv) amend its 2006 Stock
Incentive Plan to increase the number of shares of common stock reserved for
issuance thereunder and to limit the size of annual awards to any one recipient;
and (v) authorize the issuance of shares of its common stock in satisfaction of
amounts owed under promissory notes issued in connection with the Company’s
acquisition of Bio-Quant, Inc.
The
number of shares of common stock entitled to vote at the annual meeting was
126,902,281. The number of shares of common stock present or
represented by valid proxy at the annual meeting was 88,812,446. All
matters submitted to a vote of our stockholders at the annual meeting were
approved and all director nominees were elected. However, because
Richard J. Berman was elected as a Class II director by a plurality vote, but
where there were more votes “against” than “for” his election, Mr. Berman has
tendered a conditional resignation to the Board of Directors, which resignation
will be considered by the Corporate Governance / Nominating Committee (with Mr.
Berman abstaining) and then by the full Board of Directors (also with Mr. Berman
abstaining) pursuant to the Company’s Majority Vote Policy (the “
Majority Vote
Policy
”). The decision whether to accept Mr. Berman’s
conditional resignation previously tendered under the Majority Vote Policy will
be announced by a subsequent Current Report on Form 8-K or in a periodic report
to be filed under the Securities Exchange Act of 1934.
The
number of votes cast for and against and the number of abstentions and broker
non-votes with respect to each matter voted upon are set forth
below:
(i) Election
of two Class I Directors
Director
Nominee
|
Votes
For
|
Votes
Withheld
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Roberto
Crea, Ph.D.
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32,828,978
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210,747
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Vivian
Liu
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26,244,158
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6,795,567
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(ii) Election
of two Class II Directors
Director
Nominee
|
Votes
For
|
Votes
Withheld
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Richard
J. Berman
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8,603,455
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24,436,270
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Henry
Esber, Ph.D.
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32,613,188
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426,537
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There were 55,740,041 broker non-votes
regarding the election of directors.
(iii) Ratification
of Auditors
Stockholders
ratified the appointment of Amper, Politziner & Mattia LLP as the Company’s
independent registered public accounting firm for the fiscal year ending
December 31, 2010. The results of the voting included 86,554,590
votes for, 1,317,545 votes against, and 907,631 votes abstained.
There were no broker non-votes
regarding this proposal.
(iv) Amendment
of 2006 Stock Incentive Plan
Stockholders approved the amendment of
the Company’s 2006 Stock Incentive Plan to increase the number of shares of
common stock reserved for issuance thereunder and to limit the size of annual
awards to any one recipient. The results of the voting included
24,203,775 votes for, 8,736,508 votes against and 99,442 votes
abstained.
There were 55,740,041 broker non-votes
regarding this proposal.
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(v)
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Issuance
of Common Stock in Satisfaction of Amounts Owed Under Promissory
Notes
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Stockholders approved a proposal
authorizing the issuance of shares of common stock (the “
Share Issuance
Authorization
”) in satisfaction of amounts owed under promissory notes
issued in connection with the Company’s acquisition of Bio-Quant, Inc. (the
“
Bio-Quant
Notes
”). The results of the voting included 24,338,756 votes
for, 8,484,406 votes against and 216,563 votes abstained.
There were 55,740,041 broker non-votes
regarding this proposal.
Item
3.02. Unregistered
Sale of Equity Securities.
The
disclosure set forth below under Item 8.01 regarding the issuance of the Shares
is incorporated herein by reference.
Item
8.01 Other
Events
Following the approval of the Share
Issuance Authorization, the independent members of the Board of Directors
approved the repayment of the Bio-Quant Notes through the issuance of shares of
Common Stock. Assuming a repayment date of June 1, 2010, the
aggregate outstanding principal and accrued interest under the Bio-Quant Notes
will be approximately $10.1 million. The Bio-Quant Notes are expected
to be repaid on or about that date through the issuance of a total of
approximately 54,300,000 shares of Common Stock (the “
Shares
”),
which represents a repayment price of $0.168 per share, except for Company
officers who are also holders of Bio-Quant Notes and who agreed to receive
approximately 30,850,000 Shares in repayment of approximately $6.2 million of
principal and interest owed which results in an effective repayment price of
$0.20 per share, representing a premium of approximately 20% from the agreed
upon repayment price.
Pursuant to the terms of the Agreement
and Plan of Merger, dated November 20, 2009 (the “
Merger
Agreement
”), under which the Bio-Quant Notes were initially issued, the
Company will place into escrow approximately 19,345,000 shares of common stock
to satisfy potential indemnification claims arising under the Merger Agreement,
of which 13,369,000 shares are expected to be released from escrow on December
14, 2010 and the remaining 2,976,000 shares will remain in escrow to satisfy
potential indemnification claims through June 14, 2011.
The Shares are being issued in a
private placement transaction that is exempt from registration under Section
4(2) of the Securities Act of 1933, as amended. Accordingly, the
Shares will be subject to resale limitations and may be resold only pursuant to
an effective registration statement or a exemption from
registration.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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NEXMED,
INC.
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By:
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/s/
Mark Westgate
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Name:
Mark Westgate
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Title:
Vice President and Chief Financial Officer
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Date:
May 27, 2010
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