Unassociated Document
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
Date of
Report (Date of earliest event reported): January 4, 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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6330
Nancy Ridge Drive, Suite 103
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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) 450-0048
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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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o
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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
3.01.
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Notice
of Delisting or Failure to Satisfy a Continued Listing Rule or Standard;
Transfer of Listing.
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On
January 4, 2010, NexMed, Inc. (the “Company”) received an expected notice of
non-compliance from The NASDAQ Stock Market LLC based upon its failure to
solicit proxies and hold an annual meeting of shareholders for fiscal 2008 by
December 31, 2009, as required by NASDAQ Listing Rules 5620(a) and 5620(b),
which could serve as an additional basis for the delisting of the Company’s
securities from The NASDAQ Capital Market. The Company had discussed this matter
with the NASDAQ Listing Qualifications Panel (the “Panel”) at a hearing on
November 12, 2009, and explained that it planned to postpone the 2008 annual
meeting due to its ongoing acquisition of Bio-Quant, Inc. and would not be able
to incorporate all of the relevant acquisition related materials in the proxy
statement for the meeting in a timely manner.
As the
Company previously announced on December 18, 2009, the Panel granted its request
to remain listed on The NASDAQ Capital Market, subject to the condition that it
evidence stockholders’ equity of at least $2.5 million or a market value of
listed securities of at least $35 million on or before March 31, 2010. The
determination followed the hearing before the Panel on November 12, 2009, at
which time the Company presented its plan to evidence compliance with all
requirements for continued listing on The NASDAQ Capital Market, including the
proxy solicitation/annual meeting and bid price requirements (notwithstanding
the fact that the Company was not yet deficient with respect to those
standards).
As
provided by NASDAQ’s most recent notice, the Company plans to timely make a
formal written submission to the Panel presenting its plan to evidence
compliance with the proxy solicitation and annual meeting requirements.
While it intends to file a proxy statement for a special meeting of shareholders
to be held within the next sixty days to consider amending its Articles of
Incorporation and to authorize more common stock for issuance, that meeting may
not be conducted would not qualify as an annual meeting since the proxy
statement will not incorporate audited financial statements for the fiscal year
ended December 31, 2009. As a result, in order to satisfy NASDAQ’s annual
meeting requirement, the Company plans to file a proxy statement for a joint
2008/2009 annual meeting promptly following the filing of its Annual Report on
Form 10-K for fiscal 2009 in March 2010. Accordingly, the Company is
asking the Panel to modify its previously issued decision in accordance with the
Company’s revised plan of compliance. However, there can be no assurance
that the Panel will grant the Company’s request.
Also as
previously announced, the Company remains subject to a grace period through
January 25, 2010 to evidence compliance with the $1.00 bid price requirement for
continued listing on NASDAQ. In the event the Company does not evidence
compliance with the bid price requirement by that date, it expects to receive an
additional formal notice of non-compliance and to be afforded an opportunity to
request an exception from the Panel to evidence compliance with the minimum bid
price requirement. In that regard, the Company will implement a reverse
stock split, if necessary, to evidence compliance with NASDAQ’s minimum bid
price requirement, which action may be taken at any time at the discretion of
the Company’s Board of Directors.
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:
January 8, 2010