UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
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)
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November 20, 2009
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NexMed,
Inc.
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(Exact
name of registrant as specified in its
charter)
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Delaware
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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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89
Twin Rivers Drive, East Windsor, New Jersey
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08520
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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 (609)
371-8123
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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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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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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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o
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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
1.01
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ENTRY
INTO A MATERIAL DEFINITIVE
AGREEMENT.
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On
November 20, 2009, NexMed, Inc. (the “Company”) and BQ Acquisition Corp., a
wholly-owned subsidiary of the Company (“Merger Sub”), entered into an Agreement
and Plan of Merger (the “Merger Agreement”) with Bio-Quant, Inc. (“Bio-Quant”),
pursuant to which Merger Sub will merge with and into Bio-Quant (the “Merger”),
with Bio-Quant continuing as the surviving corporation and a wholly-owned
subsidiary of the Company.
Pursuant
to the Merger Agreement, at the effective time of the Merger (the “Effective
Time”), each outstanding share of common stock, par value $0.01 per share, of
Bio-Quant (“Bio-Quant Shares”), will be canceled and will be converted
automatically into the right to receive 913.96 shares of common stock, par value
$0.001 per share, of the Company (“NexMed Shares”), as well as a promissory note
issued by the Company (each, a “Note”) in the original principal amount of
$2,771.37. Upon closing of the Merger, Bio-Quant shareholders
will receive an aggregate of 4,000,000 NexMed Shares and Notes in the aggregate
original principal amount of $12,129,010. All NexMed Shares issued to
Bio-Quant shareholders will be restricted stock.
The Notes
will bear interest at a rate of 10% per annum, with all principal and interest
accrued thereunder becoming due and payable one year from the closing date of
the Merger. The terms of the Notes provide that the principal amounts
and all interest thereunder are payable by the Company in cash or, at the
Company’s option, in NexMed Shares, which shall be valued at the fixed price of
$0.168 per share. The Merger Agreement provides that if the Company
repays the Notes in NexMed Shares, the total number of NexMed Shares issuable to
Bio-Quant shareholders shall not exceed 19.99% of outstanding NexMed Shares at
the Effective Time unless the Company receives stockholder approval to do
so. If the Company receives such stockholder approval, the total
number of NexMed Shares issued to Bio-Quant shareholders in the Merger will not
exceed 45% of outstanding NexMed Shares immediately prior to the Effective
Time.
At
the closing of the Merger, Bassam Damaj, Ph. D., the current Chief
Executive Officer of Bio-Quant, will become the Chief Executive Officer of
NexMed. Vivian Liu, the current Chief Executive Officer of the
Company, will become the Executive Vice President and Chairman of the Board of
the Company. In addition, the Board of Directors of the Company
post-Merger will consist of four directors appointed by the Company, who will be
Vivian Liu, Richard J. Berman, Leonard A. Oppenheim and a fourth director to be
selected by the Company prior to closing, and three directors appointed by
Bio-Quant, who will be Dr. Damaj, Henry Esber, Ph. D. and Roberto Crea, each of
whom is a current director of Bio-Quant.
The
Merger is expected to be completed by the end of 2009, subject to the Bio-Quant
shareholders’ approval of the Merger and the satisfaction of other customary
closing conditions. Certain key shareholders of Bio-Quant have agreed
to vote in favor of approval of the Merger.
The
Merger Agreement requires that, as soon as practicable after the Effective Time,
the Company will hold a special meeting of its stockholders to approve, among
other items, an increase in the Company’s authorized shares to 270,000,000, an
increase in the number of shares authorized and reserved under the Company’s
2006 Stock Incentive Plan by 15,000,000 and the Company’s ability to pay all
outstanding amounts under the Notes in NexMed Shares. The Company has
agreed, subject to such stockholder approval, (i) to issue to Bio-Quant
employees a total of 2,370,787 shares of restricted stock or restricted
stock units, (ii) to issue to certain employees of the Company and its
subsidiaries options to purchase a total of 1,985,287 NexMed Shares, with
such persons and the number of NexMed Shares underlying their respective grant
to be recommended by the Company’s Chief Executive Officer to the
Compensation Committee, and (iii) to issue warrants to purchase a total of
2,521,681 NexMed Shares to those persons determined by the Company’s Chief
Executive Officer, in each case on terms specified in the Merger
Agreement.
Under the
Merger Agreement, neither the Company nor Bio-Quant may solicit or engage in
discussions or negotiations with a third party regarding an acquisition of the
stock or assets of the Company or Bio-Quant. However, if the
Company’s Board of Directors determines in good faith that it has received an
unsolicited bona fide Superior Proposal (as defined in the Merger Agreement),
the Company may terminate the Merger Agreement. In the event of such
termination, the Company must pay to Bio-Quant a fee of $650,000, plus the
amount of Bio-Quant’s reasonable expenses resulting from the proposed
transaction.
The
Merger Agreement contains customary representations, warranties, covenants and
agreements made by the Company, Merger Sub and Bio-Quant as of specific dates
that were made for purposes of that contract between the parties and are subject
to qualifications and limitations, including by information contained in
disclosure schedules that the parties exchanged upon execution of the Merger
Agreement. In addition, certain representations and warranties may be
subject to contractual standards of materiality different from those generally
applicable to stockholders, or may have been used for the purpose of allocating
risk between the parties rather than establishing matters as
facts. Stockholders are not third-party beneficiaries under the
Merger Agreement and should not rely on the representations, warranties and
covenants or any descriptions thereof as characterizations of the actual state
of facts or condition of the Company or any of its subsidiaries.
The
foregoing description of the Merger Agreement does not purport to be complete
and is qualified in its entirety by reference to the Merger Agreement, which is
filed as Exhibit 2.1 hereto, and is incorporated herein by
reference.
Investors
are cautioned that the Company may not be able to complete the proposed
transaction on the terms summarized above or other acceptable terms, or at all,
due to a number of factors, including the failure of the parties to satisfy the
closing conditions set forth in the Merger Agreement.
For
further information, please refer to the press release of the Company, dated
November 23, 2009, which is attached hereto as Exhibit 99.1 and incorporated
herein by reference.
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ITEM
9.01
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FINANCIAL
STATEMENTS AND EXHIBITS.
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(d)
Exhibits.
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2.1
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Agreement
and Plan of Merger, dated November 20, 2009, by and among NexMed, Inc.,
Bio-Quant, Inc., BQ Acquisition Corp., Ali Samer Al-Assaad, as Shareholder
Representative, and as to Sections 4.1(c) and Article VIII thereof, Bassam
Damaj, Edward Cox and Henry Esber, and the exhibits
thereto.
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99.1
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Press
Release issued by NexMed, Inc., dated November 23,
2009.
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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:
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Mark
Westgate |
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Title:
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Vice
President and Chief Financial Officer
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