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): April 20, 2017
 
Apricus Biosciences, Inc.
(Exact name of registrant as specified in its charter)
 
Nevada
0-22245
87-0449967
(State or other jurisdiction of
incorporation)
(Commission File Number)
(I.R.S. Employer Identification No.)
 
11975 El Camino Real, Suite 300, San Diego, CA
92130
(Address of principal executive offices)
(Zip Code)
 
Registrant’s telephone number, including area code (858) 222-8041
 
 
 
 
 (Former name or former address, if changed, since last report.)
 
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:
 
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13a-4(c))
 




1


Item 1.01
Entry into a Material Definitive Agreement.

On April 20, 2017, Apricus Biosciences, Inc. (the “Company”) entered into a warrant amendment (the “Warrant Amendment”) with the holders (the “Holders”) of the Company’s warrants to purchase common stock of the Company (the “Common Stock”), issued in September 2016 (the “September Warrants”), pursuant to which, among other things, (i) the exercise price of the September Warrants was reduced to $1.55 per share (the exercise price of the warrants sold in the public offering as described below), and (ii) the date upon which such September Warrants become exercisable was changed to the effective date of a the proposed amendment to the Company’s Articles of Incorporation to increase the number of authorized shares of Common Stock (the “Charter Amendment”).

The foregoing summary of the Warrant Amendment is subject to, and qualified in its entirety by reference to, the Warrant Amendment, which is attached hereto as Exhibit 4.1, and incorporated herein by reference.


Item 3.02
Unregistered Sales of Equity Securities.

To the extent required by Item 3.02 of Form 8-K, the information regarding the Warrant Amendment set forth under Item 1.01 above is incorporated herein by reference.

The September Warrants, and the shares issuable upon exercise of the September Warrants, were sold and issued without registration under the Securities Act of 1933, as amended (the “Securities Act”), in reliance on the exemptions provided by Section 4(a)(2) of the Securities Act as transactions not involving a public offering and Rule 506 promulgated under the Securities Act as sales to accredited investors, and in reliance on similar exemptions under applicable state laws.


Item 8.01
Other Events.

On April 20, 2017, the Company entered into an underwriting agreement (the “Underwriting Agreement”) with H.C. Wainwright & Co., LLC (the “Underwriter”), pursuant to which the Company agreed to sell to the Underwriter in an underwritten public offering an aggregate of 5,030,000 units (the "Units"). Each Unit consists of one share of Common Stock (the “Common Shares”), and one warrant to purchase 0.75 of a share of Common Stock (the “Warrants”), and shall be sold at a public offering price of $1.40 per Unit. The shares of Common Stock underlying the Warrants are referred to herein as the “Warrant Shares.” The shares of Common Stock and Warrants are immediately separable and will be issued separately in the offering.

The gross proceeds to the Company from the offering are expected to be approximately $7.0 million, before deducting underwriting discounts and commissions and other estimated offering expenses, and excluding any proceeds the Company may receive upon exercise of the Warrants to be issued in the offering. The offering is expected to close on or about April 26, 2017, subject to the satisfaction of customary closing conditions.

The Company does not currently have a sufficient number of authorized Common Stock to cover the Warrant Shares, and as a result, the Warrants will become exercisable only following the Company's announcement that it has received stockholder approval of the Charter Amendment and the Charter Amendment has become effective. The Warrants will expire five years from the date the warrants are first exercisable. The exercise price of the Warrants is $1.55 per share of Common Stock. The Warrants may not be exercised by the holder to the extent that the holder, together with its affiliates, would beneficially own, after such exercise more than 4.99% (or, at the election of investor prior to issuance of any warrants, 9.99%) of the Common Stock then outstanding (subject to the right of the holder to increase or decrease such beneficial ownership limitation upon notice to the Company, provided that such limitation cannot exceed 9.99%) and provided that any increase in the beneficial ownership limitation shall not be effective until 61 days after such notice is delivered. The Company does not plan to apply to list the Warrants on the NASDAQ Capital Market, any other national securities exchange or any other nationally recognized trading system.
    
The Underwriting Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the Underwriter, including for liabilities under the Securities Act, other obligations of the parties and termination provisions. The representations, warranties and covenants contained in the Underwriting Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties.





2



The Common Shares, Warrants and Warrant Shares are being issued and sold pursuant to an effective registration statement on Form S-1, which was previously filed with the Securities and Exchange Committee (the "SEC") and declared effective on April 20, 2017 (File No. 333-217036) (the "Registration Statement"), and a related prospectus. This description of the offering is a summary only, is not intended to be complete, and is qualified in its entirety by reference to the Form of Underwriting Agreement and the Form of Warrant, which are filed as Exhibits 1.1 and 4.9, respectively, to the Registration Statement and incorporated herein by reference.

On April 21, 2017, the Company issued a press release announcing that the Company had priced the offering. A copy of the press releases is attached as Exhibit 99.1 hereto.


Item 9.01
Financial Statements and Exhibits.     

(d) Exhibits.
Exhibit No.
 
Description
4.1
 
Form of Warrant Amendment
99.1
 
Press Release of the Company, dated April 21, 2017


*    *    *

3


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.

 
Apricus Biosciences, Inc.
 
 
Date: April 21, 2017
By:
/s/ Richard W. Pascoe
 
 
Name: Richard W. Pascoe
 
 
Title: Chief Executive Officer and Secretary

4


Exhibit 4.1


APRICUS BIOSCIENCES, INC.
AMENDMENT TO
SECURITIES PURCHASE AGREEMENT
AND
WARRANT TO PURCHASE COMMON STOCK

This Amendment, dated as of April 20, 2017 (this “ Amendment ”), to that certain Securities Purchase Agreement (“ Purchase Agreement ”), dated as of September 22, 2016, by and among Apricus Biosciences, Inc. (the “ Company ”) and the purchaser signatory hereto (the “ Holder ”) and that certain Common Stock Purchase Warrant dated as of September 28, 2016 issued pursuant thereto (the “ Warrant ”) and is entered into by and between the Company and the Holder.

RECITALS

A.      The Company has filed a registration statement on Form S-1, File No. 333-217036 (the “ Registration Statement ”) pursuant to which it will offer shares (the “ Offering Shares ”) of common stock, $0.001 par value per share, of the Company (the “ Common Stock ”), warrants to purchase Common Stock (“ Public Offering Warrants ”) and shares of Common Stock issuable upon exercise of the Public Offering Warrants (the “ Warrant Shares ” and together with the Offering Shares, the “ Shares ”) (collectively, the “ Offering ”).

B.      The Company currently does not have sufficient authorized share capital for the issuance of all of the Shares based on the number of outstanding shares of Common Stock and the number of shares of Common Stock reserved for future issuance and has requested that the Holder permit the Company to unreserve shares underlying the Warrant for issuance in the Offering, among other things.

C.      The Holder and the Company each desire to amend the Purchase Agreement and Warrant on the terms and conditions set forth below.

AGREEMENT
    
THE PARTIES AGREE AS FOLLOWS:

1.
The Purchase Agreement and Warrant shall be amendment as follows:

a.
Initial Exercise Date . The “ Initial Exercise Date ” of the Warrants shall be amended to mean the effective date (the “ Amendment Effectiveness Date ”) of the upcoming amendment to the Company’s Articles of Incorporation to increase the number of authorized shares of Common Stock.

b.
Amendment of Section 4.9 of the Purchase Agreement . Unless and until the Amendment Effectiveness Date occurs, the Holder hereby waives the Company’s obligation to reserve any shares of Common Stock for issuance pursuant to the Purchase Agreement, the Warrant or otherwise. The Holder hereby authorizes the Company to restore any and all shares of Common Stock heretofore reserved for issuance pursuant to the Purchase Agreement or the Warrant to the status of unreserved shares of Common Stock available for issuance.


1


c.
Amendment of Section 5(d) of the Warrant . Unless and until the Amendment Effectiveness Date occurs, the Holder hereby waives the Company’s obligation to reserve any shares of Common Stock for issuance pursuant to the Purchase Agreement, the Warrant or otherwise. The Holder hereby authorizes the Company to restore any and all shares of Common Stock heretofore reserved for issuance pursuant to the Purchase Agreement or the Warrant to the status of unreserved shares of Common Stock available for issuance.

d.
Reduction in Exercise Price . The Exercise Price of the Warrant is hereby reduced to equal to the warrant exercise price of the Public Offering Warrants, subject to adjustment as provided in the Warrant.

e.
Amendment to Section 2(c) of the Warrant . Section 2(c) of the Warrant is hereby amended and restated to be identical to Section 2(c) of the Public Offering Warrants.

f.
Amendment to Section 3(d) of the Warrant . Section 3(d) of the Warrant is hereby amended and restated to be identical to Section 3(d) of the Public Offering Warrants.

g.
Reservation of Warrant Shares . Upon the Amendment Effectiveness Date, the reservation of all of the Warrant Shares shall have first priority over the reservation of any other securities of the Company.

2.
No Changes . Except as amended by this Amendment, all other terms of the Purchase Agreement and Warrant shall continue in full force and effect.

3.
Conflict . If the terms of this Amendment conflict with the terms of the Purchase Agreement or Warrant, the terms of this Amendment shall control.

4.
Counterparts . This Amendment may be executed in one or more counterparts, each of which shall be an original and all of which shall together constitute one and the same document. The Holder agrees and acknowledges that the Holder’s signature to this Amendment also constitutes the Holder’s execution of, and agreement to, the Purchase Agreement and Warrant.

5.
Governing Law . This Amendment shall be governed by the laws of the State of New York, notwithstanding its conflict of laws provisions.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
    

2


IN WITNESS WHEREOF, the parties have caused this Amendment to Common Stock Purchase Warrant and the Purchase Agreement to be executed as of the date first set forth above.


APRICUS BIOSCIENCES, INC.


By:__________________________________
Its:___________________________________


HOLDER


By:___________________________________
Its:____________________________________





3



Exhibit 99.1

APRICUSLOGOPRINT.JPG

APRICUS BIOSCIENCES ANNOUNCES PRICING OF $7.0 MILLION PUBLIC OFFERING

SAN DIEGO, CA, April 21, 2017 - Apricus Biosciences, Inc. (Nasdaq:APRI), a biopharmaceutical company advancing innovative medicines in urology and rheumatology, today announced the pricing of an underwritten public offering of an aggregate of 5,030,000 units, with each unit consisting of one share of Apricus common stock and one warrant to purchase 0.75 of a share of common stock, at a public offering price of $1.40 per unit. The shares of common stock and warrants are immediately separable and will be issued separately in this offering. Apricus’ gross proceeds from this offering are expected to be approximately $7.0 million, before deducting underwriting discounts and commissions and other estimated offering expenses, and excluding any proceeds Apricus may receive upon exercise of the warrants to be issued in this offering. The offering is expected to close on or about April 26, 2017, subject to the satisfaction of customary closing conditions.

Rodman & Renshaw, a unit of H.C. Wainwright & Co. is acting as sole book-running manager for the offering.

The warrants will become exercisable only following Apricus’ announcement that it has received shareholder approval of an amendment to its Amended and Restated Articles of Incorporation to increase the number of authorized shares of common stock to a total of 30,000,000 shares and such amendment has become effective. The warrants will expire five years from the date they are first exercisable, and have an exercise price of $1.55 per share.

Apricus intends to use the net proceeds of this offering to fund activities in connection with its planned re-submission of its NDA for Vitaros to the FDA and for general corporate purposes and working capital.

The securities described above are being issued and sold pursuant to an effective registration statement on Form S-1, which was previously filed with the Securities and Exchange Committee (the "SEC") and declared effective on April 20, 2017 (File No. 333-217036). The offering of these securities will be made only by means of a prospectus. Copies of the final prospectus, when available, may be obtained at the SEC’s website located at http://www.sec.gov and may also be obtained by calling H.C. Wainwright & Co., LLC at (646) 975-6996 or requesting a copy by email at placements@hcwco.com .

This press release shall not constitute an offer to sell or the solicitation of an offer to buy these securities, nor shall there be any sale of these securities in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction.

About Apricus Biosciences, Inc .

Apricus Biosciences, Inc. (APRI) is a biopharmaceutical company advancing innovative medicines in urology and rheumatology. Apricus has two product candidates currently in development. Vitaros is a product candidate in the United States for the treatment of erectile dysfunction, which is in-licensed from Warner Chilcott Company, Inc., now a subsidiary of Allergan plc (Allergan). RayVa is our product candidate in Phase

1



2 development for the treatment of the circulatory disorder Raynaud’s phenomenon, secondary to scleroderma, for which Apricus owns worldwide rights.

Vitaros ™ is Apricus’ trademark in the United States, which is pending registration and subject to the agreement with Allergan. Vitaros ® is a registered trademark of Ferring B.V. in certain countries outside of the United States. RayVa ™ is Apricus’ trademark, which is registered in certain countries throughout the world and pending registration in the United States.

Forward Looking Statements

Certain statements contained in this news release, other than statements of fact that are independently verifiable at the date hereof, may constitute forward-looking information and forward-looking statements (collectively "forward-looking statements" within the meaning of applicable securities laws). Such statements, based as they are on the current expectations of management of Apricus and upon what management believes to be reasonable assumptions based on information currently available to it, inherently involve numerous risks and uncertainties, known and unknown, many of which are beyond Apricus’ control. Such statements can usually be identified by the use of words such as "may," "would," "believe," "intend," "plan," "anticipate," or "estimate" and other similar terminology, or state that certain actions, events or results "may" or "would" be taken, occur or be achieved. Forward-looking statements in this release include, but are not limited to, statements related to the expected completion, timing and size of the public offering of units and Apricus’ expected used of the proceeds from the offering. Whether actual results and developments will conform with our expectations and predictions is subject to a number of risks, assumptions and uncertainties, many of which are beyond our control, and the effects of which can be difficult to predict. These risks include those associated with market risks and uncertainties and the satisfaction of customary closing conditions for an offering of securities, and other risks described in Apricus’ filings with the SEC. In evaluating any forward-looking statements in this release, Apricus cautions readers not to place undue reliance on any forward-looking statements. Unless otherwise required by applicable securities laws, Apricus does not intend, nor does it undertake any obligation, to update or revise any forward-looking statements contained in this news release to reflect subsequent information, events, results or circumstances or otherwise.

# # #

CONTACT:

Matthew Beck
mbeck@troutgroup.com
The Trout Group
(646) 378-2933


2