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): June 22, 2018
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Apricus Biosciences, 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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11975 El Camino Real, Suite 300, San Diego, CA
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92130
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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
(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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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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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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13a-4(c))
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
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Item 1.01
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Entry into a Material Definitive Agreement.
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On June 22, 2018, Apricus Biosciences, Inc. (the “Company”) entered into a subscription agreement amendment (the “Subscription Agreement Amendment”) with Sarissa Capital Domestic Fund LP (“Sarissa Domestic”) and Sarissa Capital Offshore Master Fund LP (“Sarissa Offshore” together with Sarissa Domestic, the “Investors”), which, among other things, removed the Investor’s preemptive rights with respect to future issuances of the Company's equity securities.
Concurrently with the Subscription Agreement Amendment, the Company entered into a warrant amendment (the “Warrant Amendment”) with Sarissa Offshore regarding the Company’s warrants to purchase common stock of the Company (the “Common Stock”), issued in February 2015 (the “February 2015 Warrants”) and January 2016 (together with the February 2015 Warrants, the “Warrants”), pursuant to which the exercise price of the Warrants was reduced from $0.71 to $0.42 per share.
The foregoing summaries of the Warrant Amendment and the Subscription Agreement Amendment are subject to, and qualified in their entirety by reference to, the Warrant Amendment and the Subscription Agreement Amendment, which are incorporated herein by reference to Exhibits 4.1 and 10.1, respectively.
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Item 3.02
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Unregistered Sales of Equity Securities.
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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 shares issuable upon exercise of the Warrants, were 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.
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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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Exhibit No.
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Description
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Amendment to Warrant to Purchase Common Stock, dated as of June 22, 2018, by and between the Company and Sarissa Offshore
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Amendment No. 1 to Subscription Agreement, dated as of June 22, 2018, by and between the Investors and the Company
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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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Apricus Biosciences, Inc.
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June 22, 2018
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By:
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/s/ Richard W. Pascoe
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Name: Richard W. Pascoe
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Title: Chief Executive Officer and Secretary
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APRICUS BIOSCIENCES, INC.
AMENDMENT TO
WARRANT TO PURCHASE COMMON STOCK
This Amendment to Warrant to Purchase Common Stock (this “
Amendment
”), dated as of June 22, 2018, is being entered into by and between Apricus Biosciences, Inc., a Nevada corporation (the “
Company
”) and Sarissa Capital Offshore Master Fund LP, a Cayman Islands exempted limited partnership (the “
Holder
”).
WHEREAS, the Holder is the record and beneficial owner of certain warrants (the “
Outstanding Warrants
”) to purchase shares of the Company’s common stock, par value $0.001 per share (“
Common Stock
”) set forth on
Exhibit A
hereto, issued pursuant to subscription agreements dated February 10, 2015 and January 12, 2016 by and among the Company and the Holder;
WHEREAS, concurrently with this Amendment, the Company, the Holder and Sarissa Capital Domestic Fund LP, a Delaware limited partnership, are entering into an amendment to the Subscription Agreement, dated as of January 12, 2016; and
WHEREAS, the Company and the Holder have agreed to amend the Outstanding Warrants in the manner provided in this Amendment (the Outstanding Warrants, as so amended, the “
Warrants
”).
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein below and other good and valuable consideration, the receipt and legal sufficiency of which are hereby mutually acknowledged, the Holder and the Company hereby agree as follows:
1.
Capitalized Terms
. Unless otherwise specified in this Amendment, all terms herein shall have the same meanings ascribed to them in the Outstanding Warrants.
2.
Amendments
. Section 1(b) of the Outstanding Warrants is amended and replaced in its entirety with the following:
“1(b)
Exercise Price
. For purposes of this Warrant, “Exercise Price” means $0.42 per share of Common Stock, subject to adjustment as provided herein.”
3.
No Other Amendment
. Except for the matters set forth in this Amendment, all other terms of the Warrants shall remain unchanged and in full force and effect.
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Governing Law
. This Amendment shall be governed by and construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Amendment shall be governed by, the laws of the State of New York, except for its conflicts of law provisions.
5.
Counterparts
. This Amendment may be executed in the original or by facsimile in two or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute but one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF,
each of the parties has caused this Amendment to be executed by its duly authorized representatives.
APRICUS BIOSCIENCES, INC.
By:
/s/ Richard W. Pascoe
Name: Richard W. Pascoe
Title: Chief Executive Officer
Address: 11975 El Camino Real, Suite 300
San Diego, CA
Agreed to and accepted:
SARISSA CAPITAL OFFSHORE MASTER FUND LP
By: Sarissa Capital Offshore Fund GP LLC, its general partner
By:
/s/ Mark DiPaolo
Name: Mark DiPaolo
Title: Authorized Person
Address: 660 Steamboat Road, 3rd Floor
Greenwich, CT 06830
Exhibit A
Outstanding Warrants to be Amended
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Warrant No.
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Holder
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Issuance Date
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Shares Underlying Warrant
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AMENDMENT NO. 1
TO SUBSCRIPTION AGREEMENT
This AMENDMENT NO. 1 TO SUBSCRIPTION AGREEMENT (this “
Amendment
”) is dated as of June 22, 2018, by and among Sarissa Capital Domestic Fund LP, a Delaware limited partnership (“
Sarissa Domestic
”), Sarissa Capital Offshore Master Fund LP, a Delaware limited partnership (together with Sarissa Domestic, the “
Investors
”) and Apricus Biosciences, Inc., a Nevada corporation (the “
Company
”). The Investors and the Company are each referred to herein by name or, individually, as a “
Party
” or collectively, as “
Parties
.”
WHEREAS, the Parties have previously entered into that certain Subscription Agreement, dated as of January 12, 2016 (the “
Agreement
”);
WHEREAS, concurrently with this Amendment, the Parties are entering into an amendment to the currently outstanding warrants to purchase shares of the Company’s common stock held by the Investors to, among other things, reduce the exercise price of such warrants (the “
Warrant Amendment
”); and
WHEREAS,
the Parties desire to amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein below and other good and valuable consideration, the receipt and legal sufficiency of which are hereby mutually acknowledged, the Investors and the Company hereby agree as follows:
1.
Capitalized Terms
. Unless otherwise specified in this Amendment, all terms herein shall have the same meanings ascribed to them in the Agreement.
2.
Amendments
.
(a) The Parties hereby amend and restate in its entirety Section 19 of Annex I of the Agreement as follows:
“
19
[Reserved].”
(b) The Parties hereby amend and restate in its entirety Section 20 of Annex I of the Agreement as follows:
“20. Termination of Covenants under Prior Subscription Agreement
. Upon execution of this Agreement by the Company and the Investors, Sections 17, 18, and 19 of that certain Subscription Agreement between the Company and the Investors dated February 10, 2015 (the “
Prior Subscription Agreement
”), shall thereafter be of no further force or effect.”
3.
No Other Amendment
. Except for the matters set forth in this Amendment, all other terms of the Agreement shall remain unchanged and in full force and effect.
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Governing Law
. This Amendment shall be governed by and construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Amendment shall be governed by, the laws of the State of New York, except for its conflicts of law provisions.
5.
Counterparts
. This Amendment may be executed in the original or by facsimile in two or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute but one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF,
each of the Parties has caused this Amendment to be executed by its duly authorized representatives.
SARISSA CAPITAL DOMESTIC FUND LP
By: Sarissa Capital Fund GP LP, its general partner
By:
/s/ Mark DiPaolo
Name: Mark DiPaolo
Title: Authorized Person
Address: 660 Steamboat Road, 3rd Floor
Greenwich, CT 06830
SARISSA CAPITAL OFFSHORE MASTER FUND LP
By: Sarissa Capital Offshore Fund GP LLC, its general partner
By:
/s/ Mark DiPaolo
Name: Mark DiPaolo
Title: Authorized Person
Address: 660 Steamboat Road, 3rd Floor
Greenwich, CT 06830
APRICUS BIOSCIENCES, INC.
By:
/s/ Richard W. Pascoe
Name: Richard W. Pascoe
Title: Chief Executive Officer
Address: 11975 El Camino Real, Suite 300
San Diego, CA
Signature Page to Amendment No. 1 to Subscription Agreement