Attached files
file | filename |
---|---|
EX-4.7 - SEELOS THERAPEUTICS, INC. | v197007_ex4-7.htm |
EX-5.1 - SEELOS THERAPEUTICS, INC. | v197007_ex5-1.htm |
EX-4.6 - SEELOS THERAPEUTICS, INC. | v197007_ex4-6.htm |
EX-4.1 - SEELOS THERAPEUTICS, INC. | v197007_ex4-1.htm |
EX-5.2 - SEELOS THERAPEUTICS, INC. | v197007_ex5-2.htm |
EX-10.30 - SEELOS THERAPEUTICS, INC. | v197007_ex10-30.htm |
As
filed with the Securities and Exchange Commission on September 28, 2010
Registration
No. 333-169132
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
Amendment
No. 2
to
Form S-1
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Apricus
Biosciences, Inc.
(Exact
name of registrant as specified in its charter)
Nevada
|
2834
|
87-0449967
|
(State
or other jurisdiction of
|
(Primary
Standard Industrial
|
(I.R.S.
Employer
|
incorporation
or organization)
|
Classification
Code Number)
|
Identification
No.)
|
6330
Nancy Ridge Drive, Suite 103
San
Diego, California 92121
(858)
222-8041
(Address, including zip code and
telephone number, including area code, of registrant’s principal executive
offices)
Bassam
B. Damaj, Ph.D.
President
and Chief Executive Officer
6330
Nancy Ridge Drive, Suite 103
San
Diego, California 92121
(858)
222-8041
(Name, address, including zip code
and telephone number, including area code, of agent for
service)
Copies
to:
Ryan
Murr, Esq.
|
Kyle
Guse, Esq.
|
Goodwin
Procter LLP
|
McDermott
Will & Emery LLP
|
Three
Embarcadero Center, 24th
Floor
|
275
Middlefield Road
|
San Francisco,
California 94111-4003
|
Menlo
Park, California 94025
|
(415) 733-6000
(phone)
|
(650)
815-7400 (phone)
|
(415)
677-9041 (facsimile)
|
(650)
815-7401 (facsimile)
|
Approximate date of commencement of
proposed sale to public: as soon as
practicable after this Registration Statement is declared
effective.
If any of the
securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the
following box. R
If this Form is
filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, check the following box
and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. £
If this Form is a
post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering.
£
If this Form is a
post-effective amendment filed pursuant to Rule 462(d) under the Securities
Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering.
£
Indicate by check mark whether the
registrant is a large accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of “large accelerated
filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
Large
accelerated filer £
|
Accelerated
filer £
|
Non-accelerated
filer £
|
Smaller reporting company R
|
(Do not check if a smaller
reporting company)
|
CALCULATION
OF REGISTRATION FEE
|
||||||||
Title
of Each Class of Securities to be Registered
|
Proposed
maximum aggregate offering price (1)(2)
|
Amount
of registration fee (4)
|
||||||
Units
Consisting of Common Stock and Warrants
|
$ | 10,000,000 | $ | 713 | ||||
Common
Stock Underlying Units (3)
|
- | - | ||||||
Warrants
Underlying Units (3)
|
- | - | ||||||
Common
Stock Underlying Warrants
|
$ | 4,200,000 | $ | 300 | ||||
Total
|
$ | 14,200,000 | $ | 1013 |
(1)
Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the
“Securities Act”).
|
||||||||
(2) Pursuant
to Rule 416(a) of the Securities Act, this registration statement shall be
deemed to cover additional securities that may be offered or issued to
prevent dilution resulting from stock splits, stock dividends or similar
transactions.
|
||||||||
(3) No
fee required pursuant to Rule 457 under the Securities
Act.
|
||||||||
(4) Fee
of $1,010 previously paid.
|
||||||||
The Registrant hereby amends this
Registration Statement on such date or dates as may be necessary to delay its
effective date until the registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the
Registration Statement shall become effective on such date as the Securities and
Exchange Commission, acting pursuant to said Section 8(a), may
determine.
Explanatory
Note
The purpose of this Amendment No. 2 is to
amend Item 13 and to file Exhibits 4.1, 4.6, 4.7, 5.1, 5.2 and 10.30 to
this Registration Statement on Form S-1 (Registration No. 333-169132).
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance
and Distribution.
The
expenses (other than placement agent fees) payable by us in connection with this
offering are as follows:
Amount
|
||||
Securities
and Exchange Commission registration fee
|
$ | 1,537 | ||
Financial
Industry Regulatory Authority, Inc. fee
|
$ | 1,917 | ||
Accountants’
fees and expenses
|
$ | 25,000 | ||
Legal
fees and expenses
|
$ | 150,000 | ||
Transfer
Agent’s fees and expenses
|
$ | 5,200 | ||
Printing
and engraving expenses
|
$ | 25,000 | ||
Miscellaneous
|
$ | 41,346 | ||
Total
Expenses
|
$ | 250,000 |
All
expenses are estimated except for the Securities and Exchange Commission fee and
the Financial Industry Regulatory Authority, Inc. fee.
Item 14. Indemnification of Directors
and Officers.
Our
officers and directors are indemnified under Nevada law, our Amended and
Restated Articles of Incorporation and our Second Amended and Restated 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 by the laws of the State of Nevada in effect from time to time.
Our Second Amended and Restated By-Laws contain provisions that implement the
indemnification provisions of our Amended and Restated Articles of
Incorporation.
Pursuant
to Article X of our Amended and Restated Articles of Incorporation, 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. This Article X also says that if Nevada law is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors or officers, the liability of a director or officer of
the corporation shall be eliminated or limited to the fullest extent permitted
by Nevada law, as so amended from time to time. Pursuant to Section 8.1 of our
Amended and Restated By-Laws, no officer or director shall be personally liable
for any obligations arising out of any of his or her acts or conduct performed
for or on our behalf. Nevada Revised Statutes Section 78.138 currently provides
that, except as otherwise provided in the Nevada Revised Statutes, a director or
officer shall not be individually liable to us or our stockholders or creditors
for any damages as a result of any act or failure to act in his or her capacity
as a director or officer unless it is proven that (i) the director’s or
officer’s acts or omissions constituted a breach of his or her fiduciary duties
as a director or officer and (ii) such breach involved intentional misconduct,
fraud or a knowing violation of the law.
Pursuant
to Article XI of our Amended and Restated Articles of Incorporation, we shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, by reason of
the fact that he or she is or was or has agreed to become a director or officer
of our company or is serving at our request as a director or officer of another
entity or enterprise or by reason of actions alleged to have been taken or
omitted in such capacity or in any other capacity while serving as a director or
officer, to the fullest extent permitted by applicable law, against any and all
loss, liability and expenses, including attorneys’ fees, costs, damages,
judgments, fines, amounts paid in settlement, and ERISA excise taxes or
penalties, actually and reasonably incurred by such person in connection with
such action, suit or proceeding, including any appeal. This right to
indemnification shall continue for any person who has ceased to be a director or
officer and shall inure to the benefit of his or her heirs, next of kin,
executors, administrators and legal representatives.
Article
XI of our Amended and Restated Articles of Incorporation also provides that we
shall pay the expenses of directors and officers incurred as a party to any
threatened, pending or completed action, suit or proceeding, as they are
incurred and in advance of the final disposition of the action, suit or
proceeding, but, if applicable law so requires, only upon receipt by us of an
undertaking from the director or officer to repay the advanced amounts in the
event it is ultimately determined by a final decision, order or decree of a
court of competent jurisdiction that the director or officer is not entitled to
be indemnified for such expenses.
Section
8.1 of our Second Amended and Restated By-Laws requires us to 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 or 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 Revised Statutes; 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 indemnified in taking any action or making any payment or
in refusing to do so in reasonable reliance upon the advice of
counsel.
Section
78.7502 of the Nevada Revised Statutes permits a corporation to indemnify a
present or former director, officer, employee or agent of the corporation, or of
another entity or enterprise for which such person is or was serving in such
capacity at the request of the corporation, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, except an action by or in the right of the corporation,
against expenses, including attorneys’ fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection therewith, arising
by reason of such person’s service in such capacity if such person (i) is not
liable pursuant to Section 78.138 of the Nevada Revised Statutes, or (ii) 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 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 the
corporation, however, 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 or for amounts paid in settlement 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, such person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
Section
78.751 of the Nevada Revised Statutes permits any discretionary indemnification
under Section 78.7502 of the Nevada Revised Statutes, unless ordered by a court
or advanced to a director or officer by the corporation in accordance with the
Nevada Revised Statutes, to be made by a corporation only as authorized in each
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances. The determination of
indemnification 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 action, suit or proceeding
cannot be obtained, by independent legal counsel in a written
opinion.
We also
maintain directors and officers liability insurance with Carolina Casualty
Insurance Company and RSUI Indemnity Company with total liability limits of
$10,000,000 per occurrence and in the aggregate. With some exceptions (fraud and
Section 16(b) violations, for example) this coverage extends to most securities
law claims.
Item 15. Recent Sales of Unregistered
Securities.
In the
three years preceding the filing of this registration statement, we have sold
and issued the following unregistered securities:
On
October 26, 2007, we issued an 8% senior secured promissory note in the
principal amount of $3,000,000 and a warrant to purchase 30,000 shares of our
common stock at an exercise price of $22.80 to an investor. The warrant
was initially exercisable for 23,333 shares and the remaining 6,667 shares were
to vest if the note had remained outstanding on October 26, 2008. As of
June 30, 2008, the warrant for the remaining 6,667 shares was cancelled.
The note and warrant were issued in reliance upon an exemption from registration
as provided by Rule 506 of Regulation D.
On May
12, 2008, we entered into a binding commitment for a $3,000,000 equity line with
an investor, pursuant to which we could draw down on the equity line and repay
such funds in the form of shares of our common stock at the investor’s option,
which share repayment shall equal the amount of the drawdown divided by
$15.15. In addition, we issued a warrant to purchase 16,667 shares of our
common stock at an exercise price of $15.15 to the investor. No draw downs
were made on the equity line and the equity line has since been
withdrawn.
On June
30, 2008, we issued 7% convertible promissory notes to two investors for an
aggregate principal amount of $5,750,000. The notes may be repaid in
shares of our common stock, subject to certain exceptions, at the lesser of
$1.20 less than, or a price of 95% of, a five-day weighted average of the market
price of our common stock prior to the time of payment. In addition, the
notes are convertible into shares of our common stock, with $4,750,000
convertible at $30.00 per share on or before the due date and $1,000,000
convertible at $26.25 per share on or before December 31, 2008. On May 27,
2009, we issued 43,960 shares of common stock at a price of $3.45 per share to
the note holders in repayment of $150,000 principal amount plus interest.
On June 11, 2009, we issued 32,710 shares of common stock at a price of $3.45
per share to the note holders in repayment of $150,000 principal amount plus
interest. On July 23, 2009, we issued 125,559 shares of common stock a
price of $2.40 per share to the note holders in repayment of $300,000 principal
amount plus interest. On July 29, 2009, we issued 44,695 shares of common
stock at a price of $2.25 per share to the note holders in repayment of $100,000
principal amount plus interest. On September 16, 2009, we issued 157,915
shares of common stock at a price of $2.25 share to the note holders in
repayment of $350,000 principal amount plus interest. On October 14, 2009,
we issued 146,230 shares of common stock at a price of $2.40 per share to the
note holders in repayment of $350,000 principal amount plus interest. On
October 15, 2009, we issued 111,435 shares of common stock at a price of $2.25
per share to the note holders in repayment of $250,000 principal amount plus
interest. On November 10, 2009, we issued additional notes (the “November
Notes”) to the existing investors for an aggregate principal amount of $750,000
and also amended the existing notes such that the conversion price of $750,000
in principal amount of the notes changed from $30.00 per share to $2.10 per
share. On November 24, December 7, 9 and 14, 2009, we issued 361,319
shares of common stock to the note holders in repayment of $500,000, $125,000,
$35,000 and $90,000, respectively, for a total of $750,000 in principal amount
plus interest pursuant to the November 10, 2009 amendment to the existing
notes. On January 26, 2010, we issued 53,333 shares of common stock at a
price of $7.50 per share to the note holders in repayment of $397,988 principal
amount plus interest. The remaining balances outstanding on the existing
notes and the November Notes were repaid in full on March 15, 2010.
On
December 14, 2009, we entered into the merger agreement with Bio-Quant, Inc.
Pursuant to the agreement, at the effective time of the merger, each outstanding
share of common stock of Bio-Quant was cancelled and converted into the right to
receive 913.96 shares of our common stock as well as a promissory note in the
original principal amount of $2,771.37. In connection with the closing of
the merger, we issued an aggregate of 4,000,000 shares of common stock and
promissory notes in the aggregate original principal amount of $12,129,010 to
the shareholders of Bio-Quant. A portion of such shares of common stock
were placed in escrow to satisfy potential indemnification claims arising under
the merger agreement. The principal and accrued interest on the notes may
be payable in shares of our common stock valued at the fixed price of $2.52 per
share. On January 11, 2010, we issued 140,500 shares of common stock to
the note holders in repayment of $261,016 principal amount plus interest.
On March 17, 2010, we issued 862,710 shares of common stock to the note holders
in repayment of $1,969,185 principal amount plus interest. On June 21,
2010, the promissory notes were repaid in full with the issuance of 3,639,410
shares of our common stock to repay the remaining outstanding principal amount
of $10,159,825 plus interest. With respect to shareholders of Bio-Quant who were
not “U.S. persons,” as defined in Regulation S promulgated under the Securities
Act of 1933, as amended (the “Securities Act”), the shares and the notes were
issued in an offshore transaction exempt from registration under Regulation
S.
Commencing
January 22, 2010, we entered into subscription agreements for unsecured
promissory notes in an aggregate principal amount of approximately $2,300,000
with certain investors. The notes may be repaid in shares of our common
stock. The weighted average conversion price of the notes was $5.55 per
share, with the conversion prices ranging from $5.40 per share to $6.00 per
share. On March 17, 2010, the notes were repaid in full with the issuance
of 415,504 shares of our common stock.
On March
15, 2010, we issued 7% convertible promissory notes to three investors for an
aggregate principal amount of $4,000,000. The notes are convertible into
shares of our common stock at $8.70 per share, which may be subject to
adjustment, on or before the maturity date of December 31, 2012 at the holders’
option. The notes have a coupon rate of 7% per annum, which is payable in
shares of common stock if our net cash balance is less than $3 million at the
time of payment. If interest is paid in shares, then the price of the
stock issued will be the lesser of $1.20 below, or 95% of, the five-day weighted
average of the market price of our common stock prior to the time of
payment. On June 3, 2010, the conversion price of the notes was adjusted
to $8.58 per share. The notes were issued in reliance upon an exemption
from registration as provided by Rule 506 of Regulation D.
No
underwriters were used in the foregoing transactions. Unless otherwise
stated, the sales of securities described above were deemed to be exempt from
registration pursuant to Section 4(2) of the Securities Act as transactions by
an issuer not involving a public offering. All of the purchasers in these
transactions represented to us in connection with their purchase that they were
acquiring the securities for investment and not distribution, that they could
bear the risks of the investment and could hold the securities for an indefinite
period of time. Such purchasers received written disclosures that the
securities had not been registered under the Securities Act and that any resale
must be made pursuant to a registration or an available exemption from such
registration. All of the foregoing securities are deemed restricted securities
for the purposes of the Securities Act.
Item 16. Exhibits and Financial
Statement Schedules.
(a) Exhibits.
See the
Exhibit Index on the page immediately following the signature page for a
list of exhibits filed as part of this registration statement on Form S-1,
which Exhibit Index is incorporated herein by reference.
Item 17.
Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i)
To include any prospectus required by section 10(a)(3) of the Securities
Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) of this chapter) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement;
and
(iii)
To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
(2) That,
for the purposes 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 therein, and the offering of the
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.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 in a
primary offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned
registrant will be a seller to the purchaser and will be considered to offer or
sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b)
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant 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, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(c) The
undersigned registrant hereby undertakes that:
(1) For
purposes 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 upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of San Diego, state of
California, on this 28th day of September, 2010.
APRICUS
BIOSCIENCES, INC.
|
|||
By:
|
/s/
Bassam Damaj
|
||
Name:
|
Bassam
B. Damaj
|
||
Title:
|
President,
Chief Executive Officer and
Director
|
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
|
|||
President,
Chief Executive Officer and
|
September
28, 2010
|
||||
/s/
Bassam Damaj
|
Director
(Principal Executive Officer)
|
||||
Bassam
B. Damaj, Ph.D.
|
|||||
Chief
Financial Officer (Principal Financial
|
September
28, 2010
|
||||
/s/ Mark Westgate |
Officer
and Principal Accounting Officer)
|
||||
Mark
Westgate
|
|||||
September
28, 2010
|
|||||
*
|
Director
|
||||
Roberto
Crea
|
|||||
September
28, 2010
|
|||||
*
|
Executive
Vice President and Director
|
||||
Henry
J. Esber
|
|||||
September
28, 2010
|
|||||
* |
Director
|
||||
Deirdre
Y. Gillespie
|
|||||
Executive
Vice President, Chairman and
|
September
28, 2010
|
||||
*
|
Director
|
||||
Vivian
H. Liu
|
|||||
September
28, 2010
|
|||||
*
|
Director
|
||||
Leonard
A. Oppenheim
|
|||||
September
28, 2010
|
|||||
*
|
Director
|
||||
Russell
Ray
|
|
|
|||
* By: | /s/ Mark Westgate | ||||
Mark Westgate | |||||
(Attorney-in-fact) |
EXHIBIT LIST
EXHIBITS
NO.
|
DESCRIPTION
|
|
2.1
|
Agreement
and Plan of Merger by and among the Company, BQ Acquisition Corp.,
Bio-Quant, Inc., and certain other parties listed therein, dated as of
November 20, 2009 (incorporated herein by reference to Exhibit 2.1 to the
Company’s Current Report on Form 8-K filed with the Securities and
Exchange Commission on November 23, 2009).
|
|
3.1
|
Amended
and Restated Articles of Incorporation of the Company (incorporated herein
by reference to Exhibit 2.1 to the Company’s Registration Statement on
Form 10-SB filed with the Securities and Exchange Commission on March 14,
1997).
|
|
3.2
|
Certificate
of Amendment to Articles of Incorporation of the Company, dated June 22,
2000 (incorporated herein by reference to Exhibit 3.2 to the Company’s
Annual Report on Form 10-K filed with the Securities and Exchange
Commission on March 31, 2003).
|
|
3.3
|
Certificate
of Amendment to the Company’s Articles of Incorporation, dated June 14,
2005 (incorporated herein by reference to Exhibit 3.4 to the Company’s
Annual Report on Form 10-K filed with the Securities and Exchange
Commission on March 16, 2006).
|
|
3.4
|
Certificate
of Amendment to Amended and Restated Articles of Incorporation of the
Company, dated March 3, 2010 (incorporated herein by reference to Exhibit
3.6 to the Company’s Annual Report on Form 10-K filed with the Securities
and Exchange Commission on March 31, 2010).
|
|
3.5
|
Certificate
of Correction to Certificate of Amendment to Amended and Restated Articles
of Incorporation of the Company, dated March 3, 2010 (incorporated herein
by reference to Exhibit 3.7 to the Company’s Annual Report on Form 10-K
filed with the Securities and Exchange Commission on March 31, 2010).
|
|
3.6
|
Certificate
of Change filed with the Nevada Secretary of State (incorporated herein by
reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K with
the Securities Exchange Commission on June 17, 2010).
|
|
3.7 | Certificate of Amendment to Amended and Restated Articles of Incorporation of the Company, dated September 10, 2010 (incorporated herein by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on September 10, 2010). | |
3.8 | Third Amended and Restated Bylaws (incorporated herein by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on September 10, 2010). | |
4.1
|
Form
of Common Stock Certificate.
|
|
4.2
|
Form
of Warrant, dated November 30, 2006 (incorporated herein by reference to
Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the
Securities and Exchange Commission on December 4, 2006).
|
|
4.3
|
Form
of Warrant, dated December 20, 2006 (incorporated herein by reference to
Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the
Securities and Exchange Commission on December 21, 2006).
|
|
4.4
|
Form
of Warrant, dated October 26, 2007 (incorporated herein by reference to
Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the
Securities and Exchange Commission on October 31, 2007).
|
|
4.5
|
Form
of Warrant (incorporated herein by reference to Exhibit 4.4 to the
Company’s Registration Statement on Form S-3 filed with the Securities and
Exchange Commission on July 29, 2008).
|
4.6
|
Form
of Warrant.
|
|
4.7
|
Form
of Warrant Certificate.
|
|
5.1
|
Opinion
of Brownstein Hyatt Farber Schreck, LLP.
|
|
5.2 | Opinion of Goodwin Procter LLP. | |
10.1*
|
Amended
and Restated NexMed, Inc. Stock Option and Long-Term Incentive
Compensation Plan (incorporated herein by reference to Exhibit 10.1 filed
with the Company’s Quarterly Report on Form 10-Q filed with the Securities
and Exchange Commission on May 15, 2001).
|
|
10.2*
|
The
NexMed, Inc. Recognition and Retention Stock Incentive Plan (incorporated
herein by reference to Exhibit 99.1 filed with the Company's Current
Report on Form 8-K filed with the Securities and Exchange Commission on
May 28, 2004).
|
|
10.3
|
License
Agreement dated March 22, 1999 between NexMed International Limited and
Vergemont International Limited (incorporated herein by reference to
Exhibit 10.7 of the Company’s Annual Report on Form 10-KSB filed with the
Securities and Exchange Commission on March 16, 2000).
|
|
10.4*
|
Employment
Agreement dated February 26, 2002 by and between the Company and Dr.
Y. Joseph Mo (incorporated herein by reference to Exhibit 10.7 of the
Company’s Form 10-K filed with the Securities and Exchange Commission on
March 29, 2002).
|
|
10.5*
|
Amendment
to Employment Agreement, dated September 26, 2003, by and between Dr. Y.
Joseph Mo and the Company (incorporated herein by reference to Exhibit
10.4 to the Company’s Quarterly Report on Form 10-Q filed with the
Securities and Exchange Commission on November 12, 2003).
|
|
10.6*
|
Stock
Option Grant Agreement between the Company and Leonard A. Oppenheim dated
November 1, 2004 (incorporated herein by reference to Exhibit 10.2 to the
Company’s Quarterly Report on Form 10-Q filed with the Securities and
Exchange Commission on November 9, 2004).
|
|
10.7*
|
Form
of Stock Option Grant Agreement between the Company and its Directors
(incorporated herein by reference to Exhibit 10.29 to the Company’s Annual
Report on Form 10-K filed with the Securities and Exchange Commission on
March 16, 2005).
|
|
10.8+
|
License
Agreement, dated September 13, 2005, by and among the Company, NexMed
International Limited and Novartis International Pharmaceutical Ltd.
(incorporated herein by reference to Exhibit 99.1 to the Company’s Current
Report on Form 8-K filed with the Securities and Exchange Commission on
September 15, 2005).
|
|
10.9*
|
Employment
Agreement, dated December 15, 2005, by and between the Company and Mark
Westgate (incorporated herein by reference to Exhibit 10.31 to the
Company’s Annual Report on Form 10-K filed with the Securities and
Exchange Commission on March 16, 2006).
|
|
10.10*
|
NexMed,
Inc. 2006 Stock Incentive Plan (incorporated herein by reference to Annex
A of the Company’s Definitive Proxy Statement filed with the Securities
and Exchange Commission on April 6, 2006).
|
|
10.11
|
Securities
Purchase Agreement, dated November 30, 2006, by and among the Company,
NexMed (U.S.A.), Inc. and Metronome LPC 1, Inc. (incorporated herein by
reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K
filed with the Securities and Exchange Commission on December 4, 2006).
|
|
10.12
|
Common
Stock and Warrant Purchase Agreement, dated December 20, 2006
(incorporated herein by reference to Exhibit 10.1 to the Company’s Current
Report on Form 8-K filed with the Securities and Exchange Commission on
December 21, 2006).
|
|
10.13
|
Amendment
to License Agreement, effective as of February 13, 2007, by and among
Novartis International Pharmaceutical Ltd., the Company and NexMed
International Limited (incorporated herein by reference to Exhibit 99.1 to
the Company’s Form 8-K filed with the Securities and Exchange Commission
on February 23, 2007).
|
10.14
+
|
License
Agreement, dated November 1, 2007, by and between the Company and Warner
Chilcott Company, Inc. (incorporated herein by reference to Exhibit 10.31
to the Company’s Annual Report on Form 10-K filed with the Securities and
Exchange Commission on March 12, 2008).
|
|
10.15
|
Purchase
Agreement, dated October 26, 2007, by and between the Company and Twin
Rivers Associates, LLC (incorporated herein by reference to Exhibit 10.1
to the Company’s Current Report on Form 8-K filed with the Securities and
Exchange Commission on October 31, 2007).
|
|
10.16
|
Senior
Secured Note dated October 26, 2007, between NexMed, Inc. and Twin Rivers
Associates, LLC (incorporated herein by reference to Exhibit 10.2 to the
Company’s Current Report 8-K filed with the Securities and Exchange
Commission on October 31, 2007).
|
|
10.17
|
Side
Letter, dated June 26, 2008, to License Agreement by and among Novartis
International Pharmaceutical Ltd., the Company and NexMed International
Limited (incorporated herein by reference to Exhibit 10.1 to the Company’s
Current Report on Form 8-K filed with the Securities and Exchange
Commission on July 1, 2008).
|
|
10.18*
|
NexMed,
Inc. Amendment to 2006 Stock Incentive Plan (incorporated by reference to
Appendix A of the Company’s Definitive Proxy Statement filed with the
Securities and Exchange Commission on April 18, 2008).
|
|
10.19
|
Asset
Purchase Agreement, dated February 3, 2009, between Warner Chilcott
Company, Inc. and the Company (incorporated herein by reference to Exhibit
10.1 to the Company’s Current Report on Form 8-K filed with the Securities
and Exchange Commission on February 5, 2009).
|
|
10.20
|
License
Agreement, dated February 3, 2009, between Warner Chilcott Company, Inc.
and the Company (incorporated herein by reference to Exhibit 10.2 to the
Company’s Current Report on Form 8-K filed with the Securities and
Exchange Commission on February 5, 2009).
|
|
10.21*
|
Amended
and Restated Employment Agreement, dated December 14, 2009, by and between
NexMed, Inc. and Vivian H. Liu (incorporated herein by reference to
Exhibit 10.42 to the Company’s Annual Report on Form 10-K filed with the
Securities and Exchange Commission on March 31, 2010).
|
|
10.22*
|
Employment
Agreement, dated December 14, 2009, by and between NexMed, Inc. and Bassam
Damaj, Ph.D. (incorporated herein by reference to Exhibit 10.43 to the
Company’s Annual Report on Form 10-K filed with the Securities and
Exchange Commission on March 31, 2010).
|
|
10.23
|
Purchase
Agreement, dated March 15, 2010, by and between NexMed, Inc. and the
Purchasers named therein (incorporated herein by reference to Exhibit
10.44 to the Company’s Annual Report on Form 10-K filed with the
Securities and Exchange Commission on March 31, 2010).
|
|
10.24
|
Registration
Rights Agreement, dated March 15, 2010 (incorporated herein by reference
to Exhibit 10.45 to the Company’s Annual Report on Form 10-K filed with
the Securities and Exchange Commission on March 31, 2010).
|
|
10.25
|
Form
of 7% Convertible Note Due December 31, 2012 (incorporated herein by
reference to Exhibit 10.46 to the Company’s Annual Report on Form 10-K
filed with the Securities and Exchange Commission on March 31, 2010).
|
|
10.26
|
NexMed,
Inc. Subscription Agreement and Instructions (incorporated herein by
reference to Exhibit 10.47 to the Company’s Annual Report on Form 10-K
filed with the Securities and Exchange Commission on March 31, 2010).
|
|
10.27
|
Form
of Unsecured Promissory Note (incorporated herein by reference to Exhibit
10.48 to the Company’s Annual Report on Form 10-K filed with the
Securities and Exchange Commission on March 31, 2010).
|
|
10.28
|
Sales
Agreement, dated as of April 21, 2010, by and between the Company and
Brinson Patrick Securities Corporation (incorporated herein by reference
to Exhibit 10.1 to the Company’s Form 8-K filed with the Securities and
Exchange Commission on April 21, 2010).
|
10.29
|
Engagement
Letter by and between the Company and Dawson James Securities, Inc. dated
as of August 16, 2010 (incorporated by reference to Exhibit 10.29 to
Amendment No. 1 to the Company’s
Registration Statement on Form S-1 filed with the Securities and Exchange
Commission on September 13, 2010).
|
|
10.30
|
Warrant
Agent Agreement by and between the Company and Wells Fargo Bank, N.A.,
dated as of September 17, 2010.
|
|
10.31 | Form of Lock-Up Agreement (incorporated by reference to Exhibit 10.31 to Amendment No. 1 to the Company’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on September 13, 2010). . | |
21.1
|
Subsidiaries
(incorporated herein by reference to Exhibit 21 to the Company’s Annual
Report on Form 10-K filed with the Securities and Exchange Commission on
March 31, 2010).
|
|
23.1
|
Consent
of Amper, Politziner & Mattia, LLP, independent registered
public accounting firm (previously filed).
|
|
23.2
|
Consent
of Brownstein Hyatt Farber Schreck, LLP (included in Exhibit
5.1).
|
|
23.3 | Consent of Goodwin Procter LLP (included in Exhibit 5.2). | |
24.1
|
Power
of Attorney (previously filed).
|
*
|
Management
compensatory plan or arrangement required to be filed as an exhibit
pursuant to Item 15(c) of Form
10-K.
|
+
|
Portions
of this exhibit have been omitted pursuant to a request for confidential
treatment with the Securities and Exchange Commission. Such portions have
been filed separately with the Securities and Exchange
Commission.
|
II-10