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): May 15, 2013

 

 

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

Not Applicable

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:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

Item 1.01. Entry into a Material Definitive Agreement.

On May 15, 2013, Apricus Biosciences, Inc. (the “ Company ”) and Wells Fargo Bank, N.A. (the “ Rights Agent ”) entered into an Amendment and Termination of Shareholder Rights Agreement (the “ Amendment ”) with respect to the Shareholder Rights Agreement dated as of March 22, 2011 by and between the Company and the Rights Agent (the “ Rights Agreement ”) (i.e., its poison pill), which terminated the Company’s poison pill.

The Amendment changes the definition of “ Final Expiration Date ” in the Rights Agreement from March 22, 2021 to May 15, 2013, such that, as of 5:00 p.m. New York time on May 15, 2013, the rights to purchase Series D Junior Participating Cumulative Preferred Stock (the “ Series D Preferred Stock ”) issued pursuant to the Rights Agreement (the “ Rights ”) expired and are no longer outstanding and the Rights Agreement terminated. The foregoing summary of the Amendment is qualified in its entirety by reference to the full text of the Amendment, which is set forth as Exhibit 4.1 to this Current Report on Form 8-K and incorporated herein by reference.

The Rights Agreement is described in the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 24, 2011, and such description is incorporated herein by reference.

 

Item 1.02. Termination of a Material Definitive Agreement.

The information contained in Item 1.01 above is incorporated by reference into this Item 1.02.

 

Item 3.03. Material Modification to Rights of Security Holders.

The information contained in Item 1.01 above is incorporated by reference into this Item 3.03.

After the expiration of the Rights and termination of the Rights Agreement, on May 15, 2013 the Company filed with the Nevada Secretary of State a Certificate of Withdrawal relating to the certificate of designation of the Series D Preferred Stock (the “ Certificate of Withdrawal ”), which has the effect of returning the authorized shares that were previously designated as Series D Preferred Stock to the status of authorized but unissued shares of the preferred stock of the Company, without designation as to series or rights, preferences, privileges or limitations. The foregoing summary of the Certificate of Withdrawal is qualified in its entirety by reference to the full text of the Certificate of Withdrawal, which is set forth as Exhibit 3.1 to this Current Report on Form 8-K and incorporated herein by reference.

 

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

The information contained in the second paragraph of Item 3.03 above is incorporated by reference into this Item 5.03.

 

Item 5.07. Submission of Matters to a Vote of Security Holders.

The following is a brief description of each matter submitted to a vote at the Annual Meeting of Stockholders of the Company on May 15, 2013 (the “ Annual Meeting ”), as well as the number of votes cast with respect to each matter. For more information about these proposals, please refer to the Company’s proxy statement filed with the Securities and Exchange Commission on April 8, 2013.

The number of shares of common stock entitled to vote at the Annual Meeting was 30,342,513. The number of shares of common stock present or represented by valid proxy at the annual meeting was 24,230,850. All matters submitted to a binding vote of stockholders at the Annual Meeting were approved as described below.

The number of votes cast for and against, and the number of abstentions and broker non-votes with respect to the matters voted upon at the Annual Meeting, are set forth below:

Proposal No. 1: Election of Directors

Election of Class I directors: Dr. Kleanthis G. Xanthopoulos, Ph.D. received 4,922,151 votes for and 5,390,467 votes withheld and Paul V. Maier received 5,971,855 votes for and 4,340,763 votes withheld. There were 13,918,232 broker non-votes regarding the election of directors.

Members of the Board of Directors (the “ Board ”) are elected by a plurality vote, and therefore both of the nominees were elected to serve as Class I directors. However, the Company’s Corporate Governance Guidelines contain a majority vote policy for director elections whereby a director nominee who, in an uncontested election, receives a greater number of votes “withheld” than votes “for” his or her election must submit to the Company’s secretary a letter of resignation, subject to Board acceptance.

        Pursuant to this policy, because Dr. Xanthopoulos received more votes “withheld” than votes “for” his election, he submitted his conditional offer of resignation to the Company. The Corporate Governance/Nominating Committee (with Dr. Xanthopoulos abstaining) considered the results of the shareholder vote including the recommendation of Institutional Shareholder Services, Inc. (ISS) to withhold votes from Dr. Xanthopoulos for the Company’s past failure to submit the adoption of the poison pill to a shareholder vote. Given the fact that the Company’s Board of Directors had previously decided to terminate the poison pill, coupled with Dr. Xanthopoulos’s considerable scientific expertise, strategic business experience , and his past and expected future contributions to the Company’s Board of Directors, the Committee recommended to the Board that Dr. Xanthopoulos’s offer of resignation not be accepted. Subsequently, the Company’s Board (with Dr. Xanthopoulos abstaining) decided to not accept his offer of resignation.

Proposal No. 2: Ratify Selection of Auditors

Stockholders ratified the appointment of PricewaterhouseCoopers LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2013. The results of the voting included 21,650,095 votes for, 2,210,916 votes against, and 369,839 votes abstained. There were no broker non-votes regarding this proposal.

Proposal No. 3: Conduct an Advisory (Non-Binding) Vote on Executive Compensation

Stockholders approved, on an advisory basis, the executive compensation paid to the Company’s named executive officers. The results of the voting included 5,086,596 votes for, 5,006,806 votes against and 219,216 votes abstained. There were 13,918,232 broker non-votes regarding this proposal.

Proposal No. 4: Conduct an Advisory (Non-Binding) Vote on the Frequency of Holding Future Advisory Votes on Executive Compensation

Stockholders approved, on an advisory basis, future advisory (non-binding) votes on executive compensation every year. The results of the voting included 6,305,057 votes for one year, 3,552,993 votes for two years, 253,024 votes for three years and 201,544 votes abstained. There were 13,918,232 broker non-votes regarding this proposal.

Based on the votes cast on this proposal, the Board has determined that future say-on-pay votes will be held every year.

 

Item 8.01. Other Events.

On May 15, 2013, the Board approved an increase by 1,000,000 shares to the number of shares reserved for issuance under the Company’s 2012 Stock Long Term Incentive Plan (the “ Plan ”) pursuant to the Plan’s evergreen provision.

 

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit
No.

  

Description

3.1    Certificate of Withdrawal of Series D Junior Participating Cumulative Preferred Stock, dated May 15, 2013
4.1    Amendment and Termination of Shareholder Rights Agreement, dated May 15, 2013, by and between Apricus Biosciences, Inc. and Wells Fargo Bank, N.A.

 

2

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.

 

May 16, 2013     Apricus Biosciences, Inc.
   

/s/ Randy Berholtz

    Name:   Randy Berholtz
    Title:   Executive Vice President,
      General Counsel and Secretary

 

3

Exhibit Index

 

Exhibit
No.

  

Description

3.1    Certificate of Withdrawal of Series D Junior Participating Cumulative Preferred Stock, dated May 15, 2013
4.1    Amendment and Termination of Shareholder Rights Agreement, dated May 15, 2013, by and between Apricus Biosciences, Inc. and Wells Fargo Bank, N.A.

 

4

Exhibit 3.1

 

LOGO

 

USE BLACK INK ONLY. DO NOT HIGHLIGHT

  ABOVE SPACE IS FOR OFFICE USE ONLY

Certificate of Withdrawal of

Certificate of Designation

for Nevada Profit Corporations

(Pursuant to NRS 78.1955(6))

1. Name of corporation:

Apricus Biosciences, Inc.

2. Following is the resolution by the board of directors authorizing the withdrawal of Certificate of Designation establishing the classes or series of stock:

RESOLVED, that the withdrawal of the Certificate of Designation of the corporation’s Series D Junior Participating Cumulative Preferred Stock (originally filed in the office of the Nevada Secretary of State on March 22, 2011), in connection with and upon the effectiveness of that certain Amendment and Termination of Shareholder Rights Agreement, dated as of May 15, 2013, by and between the corporation and Wells Fargo Bank, N.A., is hereby authorized and approved in all respects.

3. No shares of the class or series of stock being withdrawn are outstanding.

4. Signature: (required)

 

LOGO

Filing Fee: $175.00

IMPORTANT : Failure to include any of the above information and submit with the proper fees may cause this filing to be rejected.

 

This form must be accompanied by appropriate fees.

 

Nevada Secretary of State Withdrawal of Designation

Revised: 3-12-09

Exhibit 4.1

Amendment and Termination of Shareholder Rights Agreement

This Amendment and Termination (this “ Amendment and Termination ”) of the Rights Agreement (as defined below) is entered into as of May 15, 2013, between Apricus Biosciences, Inc., a Nevada corporation (the “ Company ”), and Wells Fargo Bank, N.A., as Rights Agent (“ Wells Fargo ”). All capitalized terms used herein and not otherwise defined shall having the meaning ascribed to them in the Rights Agreement.

WITNESSETH:

WHEREAS, the Company is party to the Shareholder Rights Agreement, dated as of March 22, 2011 (the “ Rights Agreement ”) with Wells Fargo, as Rights Agent;

WHEREAS, the Board of Directors of the Company has determined to terminate the Rights Agreement and, in furtherance thereof, the Company desires to enter into this Amendment and Termination pursuant to which the Rights Agreement will be amended to provide that (i) the Rights will expire at the Close of Business on May 15, 2013, and (ii) the Rights Agreement will be terminated upon the expiration of the Rights; and

WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company may, prior to the occurrence of a Section 11(a)(ii) Event, supplement or amend any provision of the Rights Agreement without the approval of any holders of certificates representing shares of common stock of the Company.

NOW THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows:

1. Amendment to Section 7(a) . The first sentence of Section 7(a) of the Rights Agreement is hereby amended to read as follows:

“(a) Subject to Section 7(e) hereof, the registered holder of any Right Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein) in whole or in part at any time after the Distribution Date upon surrender of the Right Certificate, with the form of election to purchase and the certificate on the reverse side thereof duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price for the total number of one ten-thousandths of a share of Preferred Stock (or other securities, cash or other assets, as the case may be) as to which such surrendered Rights are then exercised, at or prior to the earlier of (i) the Close of Business on May 15, 2013 (the “ Final Expiration Date ”), (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the “ Redemption Date ”) or (iii) the time at which such Rights are exchanged as provided in Section 24 hereof (the earliest of (i), (ii) or (iii) being herein referred to as the “ Expiration Date ”). Except as set forth in Section 7(e) hereof and notwithstanding any other provision of this Agreement, any Person who prior to the Distribution Date becomes a record holder of shares of Common Stock of the Company may exercise all of the rights of a registered holder of a Right Certificate with respect to the Rights associated with such shares of Common Stock of the Company in accordance with the provisions of this Agreement, as of the date such Person becomes a record holder of shares of Common Stock of the Company.”

2. Termination . Upon expiration of the Rights in accordance with the terms of the Rights Agreement, as amended hereby, the Rights Agreement shall terminate and be of no further force or effect whatsoever without any further action on the part of the Company or the Rights Agent.

3. Governing Law . This Amendment and Termination shall be deemed to be a contract made under the laws of the State of Nevada and for all purposes shall be governed by and construed in accordance with the laws of such state applicable to contracts to be made and performed entirely within such state.

4. Counterparts . This Amendment and Termination may be executed in any number of counterparts, each of which shall for all purposes be deemed an original, and all of which together shall constitute but one and the same instrument.

[Remainder of page intentionally left blank]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment and Termination to be duly executed as of the day and year first above written.

 

Apricus Biosciences, Inc.
By:  

/s/ Steve Martin

Name:   Steve Martin
Title:   Senior Vice President, Chief Financial Officer

Wells Fargo Bank, N.A.

as Rights Agent

By:  

/s/ Matthew D. Paseka

Name:  

Matthew D. Paseka

Title:   Vice President