PediatRx Inc.: Exhibit 10.41 - Filed by newsfilecorp.com






Exhibit 10.41 

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND
REPLACED WITH “***”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED
SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 24B-2 OF THE
EXCHANGE ACT OF 1934. 

CO-PROMOTION AGREEMENT 

          This
CO-PROMOTION AGREEMENT (this “Agreement”) is made as of February 21st,
2012 (the “Effective Date”), by and between Apricus Biosciences, Inc., a
Nevada corporation (“Apricus”), and PediatRx Inc., a Nevada corporation
(“PediatRx”). Each of Apricus and PediatRx is referred to herein
individually as a “party” and collectively as the “parties.” 

          WHEREAS,
Apricus and PediatRx are parties to that certain Binding Term Sheet dated
January 26, 2012 (the “Term Sheet”), pursuant to which, inter
alia, the parties agreed to enter into this Agreement with respect to the
promotion, manufacture and sale of Granisol® in the United States; and 

          WHEREAS,
this Agreement will supersede and replace the Term Sheet, insofar as it relates
to the terms of this Agreement. 

          NOW,
THEREFORE, in consideration of the foregoing and of the mutual covenants herein
contained, the parties hereto intending to be legally bound hereby agree as
follows: 

ARTICLE 1 
DEFINITIONS 

          As
used in this Agreement, the following terms shall have the following meanings:


          Section
1.1      “Act” means the United States
Federal Food, Drug and Cosmetic Act, 21 U.S.C. 301, et. seq., as it may be
amended from time to time, and the regulations promulgated thereunder, including
the Generic Drug Act. 

          Section
1.2      “Adverse Drug Experience” means any
“adverse drug experience” as defined or contemplated by 21 C.F.R. 314.80 or
312.32, associated with a Product. 

          Section
1.3      “Adverse Drug Experience Report” means
any oral, written or electronic report of any Adverse Drug Experience
transmitted to any Person. 

          Section
1.4      “Affiliate” means, with respect to any
Person, any other Person that directly or indirectly controls, is controlled by
or is under common control with, such first Person. For the purposes of this
definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as applied to
any Person, means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of that Person, whether
through the ownership of voting securities, by contract or otherwise. 




          Section
1.5      “Agreement Month” means each calendar
month during the Term (including any partial calendar month in the case of the
first and last calendar months of the Term). 

          Section
1.6      “Agreement Quarter” means the Initial
Agreement Quarter, each successive period of three months during the Term after
the Initial Agreement Quarter and the Final Agreement Quarter. 

          Section
1.7      “Agreement Year” means the Initial
Agreement Year, each successive period of twelve months during the Term and the
Final Agreement Year. 

          Section
1.8      “Allocable Percentage” for a particular
period means the pull-through percentage determined by dividing (a) the total
number of units of Product shipped by wholesalers during such period to
individual locations where PediatRx Detailed the Product during such period in
accordance with the call plan agreed upon by the parties under Section 2.12, by
(b) the total number of units of Product shipped by the wholesalers during such
period, based on Prescriber Data for such period. 

          Section
1.9      “ANDA” means Abbreviated New Drug
Application. 

          Section
1.10      “API” means granisetron HCl. 

          Section
1.11      “Apricus Allocable Costs” means one
minus the Allocable Percentage multiplied by PediatRx COGS, plus all other
out-of-pocket costs incurred by PediatRx to the extent directly related to the
generation of Apricus-Generated Net Sales. 

          Section
1.12      “Apricus-Generated Net Sales” means,
with respect to sales of Product by PediatRx and its Affiliates for a particular
period, one minus the Allocable Percentage for such period multiplied by Net
Sales by PediatRx and its Affiliates for such period. 

          Section
1.13      “Apricus-Manufactured Product” means
any Product, the responsibility for Manufacturing of which has been transferred
to Apricus pursuant to Section 4.1. 

          Section
1.14      “Apricus-Manufactured Samples” means
Samples, the responsibility for Manufacturing of which has been transferred to
Apricus pursuant to Section 4.1. 

          Section
1.15      “Apricus Sales Force” means the field
force of Sales Representatives employed or engaged by Apricus, including
field-based sales force management such as regional and district sales managers.


          Section
1.16      “Apricus Trademarks” means the
trademarks set forth on Schedule A, including the “Apricus” trademark and
associated design and logo. 

          Section
1.17      “Assigned Agreement” means any of the
Third Party Agreements which Apricus timely elects to have assigned to it
pursuant to Section 4.4 hereto. For the avoidance of doubt, Assigned Agreements
exclude the Retained Contracts. 




          Section
1.18      “cGMP” shall mean current “Good
Manufacturing Practices” as such term is defined from time to time by the FDA or
other relevant Regulatory Authority having jurisdiction over the manufacture or
sale of a Product pursuant to its regulations, guidelines or otherwise. 

          Section
1.19      “COGS” means, for a particular period,
the applicable party’s cost of goods sold (calculated in accordance with Section
5.3(b) for the Product in the Territory for such period. 

          Section
1.20      “Commercialize” means to Manufacture,
have Manufactured, Promote, market, sell and distribute the Product in the
Territory.

          Section
1.21      “Confidentiality Agreement” means that
certain Confidential Disclosure Agreement, dated as of November 18, 2011,
between Apricus and PediatRx. 

          Section
1.22      “Control” or “Controlled”
means, with respect to patents, know-how or other intellectual property rights
of any kind, the possession by a party of the ability to grant a license or
sublicense of such rights as contemplated by this Agreement, without violating
the terms of any agreement or other arrangement with any Third Party. 

          Section
1.23      “Co-Pay Program” means the Product
co-pay program which PediatRx has used in the past with One2One Health Media.


          Section
1.24      “Customers” means Third Party
wholesalers, retailer pharmacies, mail-order pharmacies, group purchasing
organizations or other organizations that purchase the Product in the Territory.


          Section
1.25      “OPDP” means the FDA’s Office of
Prescription Drug Promotion, or any successor Regulatory Authority performing
comparable functions in the Territory. 

          Section
1.26      “Detail” means an in-person,
face-to-face sales presentation of a Product made by a Sales Representative to a
Professional. 

          Section
1.27      “Domain Name” has the meaning set
forth in Section 2.6. 

          Section
1.28      “Encumbrance” means any lien, pledge,
security interest, right of first refusal, option, title defect, license,
restriction or other adverse claim or interest or encumbrance of any kind or
nature whatsoever, whether or not perfected, including any restriction on use,
transfer, receipt of income or exercise of any other attribute of ownership.


          Section
1.29      “Exclusive Area” means the states of
California, Florida, Illinois, Massachusetts, New York and Texas. 

          Section
1.30      “FDA” means the United States
Food and Drug Administration or any successor agency performing comparable
functions in the Territory. 




          Section
1.31      “Final Agreement Quarter” means the
period commencing on the first day following the last full Agreement Quarter
during the Term and ending on the last day of the Term. 

          Section
1.32      “Final Agreement Year” means the
period commencing on the first day following the last full Agreement Year during
the Term and ending on the last day of the Term. 

          Section
1.33      “First Sales Booking Date” means
the Effective Date, unless otherwise agreed by the parties. 

          Section
1.34      “Force Majeure Event” has the meaning
set forth in Section 14.7. 

          Section
1.35      “GAAP” has the meaning set forth in
Section 5.3(b) . 

          Section
1.36      “General and Administrative Expenses”
means the general administration expenses incurred by a party or any of its
Affiliates to the extent directly related to the Promotion, importation,
distribution or sale of a Product in the Territory. 

          Section
1.37      “Generic Drug Act” has the
meaning set forth in Section 8.1(i) . 

          Section
1.38      “Governmental Authority” shall mean
any court, agency, authority, department, regulatory body or other
instrumentality of any government or country or of any national, federal, state,
provincial, regional, county, city or other political subdivision of any such
government or any supranational organization of which any such country is a
member, which has competent and binding authority to decide, mandate, regulate,
enforce, or otherwise control the activities of the parties contemplated by this
Agreement. 

          Section
1.39      “Initial Agreement Quarter” means the
period commencing on the Effective Date and ending on March 31, 2012. 

          Section
1.40      “Initial Agreement Year” means the
period commencing on the Effective Date and ending on December 31, 2012.

          Section
1.41      “Legal Requirements” means laws, rules
and regulations of any Governmental Authority in the Territory, including, for
clarity, all guidelines, policies and procedures referenced in Section 3.3 of
this Agreement. 

          Section
1.42      “Manufacture,” “Manufactured”
and “Manufacturing” mean all operations involved in the manufacture,
receipt, incoming inspection, storage and handling of raw materials, and the
manufacture, processing, purification, packaging, labeling, warehousing, quality
control testing (including in-process release and stability testing), shipping
and release of Product. 

          Section
1.43      “Medical Affairs Expenses” incurred by
a party means, with respect to a particular period, all out-of-pocket costs
incurred by the applicable party related to the handling of medical inquiries
during such period, to the extent attributable to the Product. 

          Section
1.44      “Net Operating Income” means, for a
particular period, Net Sales of Product by the applicable party and its
Affiliates for such period, less (i) the portion of such Net Sales that represent PediatRx-Generated Net Sales, (ii) COGS
(other than for Apricus-Generated Net Sales), (iii) Sales and Marketing Expenses
and (iv) General and Administrative Expenses for such period, plus (v) PediatRx
Allocable Costs for such period, plus (vi) any amounts paid by PediatRx to
Apricus pursuant to Section 5.2(b) for such period. For clarity, for the
purposes of calculating PediatRx’s Net Operating Income under Section 7.6, each
of PediatRx-Generated Net Sales and PediatRx Allocable Costs shall be considered
to be zero. 




          Section
1.45      “Net Sales” means, with respect to a
Product, for a particular period, the gross amount invoiced on sales of such
Product in the Territory recognized as gross revenue in accordance with GAAP by
a party or its Affiliates to independent, unrelated Third Parties during such
period in bona fide arms’ length transactions, less the following deductions,
calculated to arrive at net sales in accordance with GAAP: (a) freight,
insurance (but only insurance with respect to shipping the Product) and other
transportation charges; (b) any sales, use, value-added, excise taxes or duties
or allowances on the selling price of the Product; (c) chargebacks, trade,
quantity and cash discounts and rebates, including governmental rebates; (d)
allowances or credits, including allowances or credits on account of rejection,
defects or returns of the Product, or because of a retroactive price reduction;
(e) redemption costs associated with any voucher, coupon, loyalty card or other
co-pay assistance programs for the Product; and (f) fees paid to wholesalers,
group purchasing organizations, pharmacy benefit managers and the like based on
the sale or dispensing of the Product. Net Sales shall not include a sale or
transfer to an Affiliate for resale or if done for clinical, regulatory or
governmental purposes where no consideration is received; but the resale by such
Affiliate shall be considered a sale of such Product. In the event a party
licenses sublicenses rights to distribute and sell Product in the Territory, Net
Sales shall include any portion of the licensee’s or sublicensee’s Net Sales
with respect to Product received by such party from the sublicensee during the
Term in the Territory.

          Section
1.46      “Non-Exclusive Area” means the parts
of the Territory other than the Exclusive Area. 

          Section
1.47      “Order” means any award, decision,
injunction, judgment, decree, order, ruling, or verdict entered, issued, made,
or rendered by any Governmental Authority or by any arbitrator. 

          Section
1.48      “PDMA” means the Prescription Drug
Marketing Act, as amended, and the rules and regulations promulgated thereunder.


          Section
1.49      “PediatRx Allocable Costs” means the
Allocable Percentage multiplied by Apricus COGS, plus all other out-of-pocket
costs incurred by Apricus to the extent directly related to the generation of
PediatRx-Generated Net Sales. 

          Section
1.50      “PediatRx-Generated Net Sales” means,
with respect to sales of Product by Apricus and its Affiliates for a particular
period, the Allocable Percentage for such period multiplied by Net Sales by
Apricus and its Affiliates for such period. 

          Section
1.51      “PediatRx Promotional Materials” has
the meaning set forth in Section 2.12(d) . 




          Section
1.52      “PediatRx Sales Force” means the field
force of Sales Representatives employed or contracted by PediatRx. 

          Section
1.53      “PediatRx Trademarks” means (a)
Granisol® (the “PediatRx Product Trademark”) and (b) PediatRx
TM(the “PediatRx Corporate Trademark”). The PediatRx Trademarks are
attached hereto as Schedule C. 

          Section
1.54      “Person” means any individual,
corporation (including any non-profit corporation), general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, labor union, or other entity or Governmental
Authority. 

          Section
1.55      “Post-Marketing Development” means,
with respect to Product, the conduct of any phase IV clinical studies, quality
of life assessments, pharmacoeconomic, label expansion or other post-marketing
studies. 

          Section
1.56      “Prescriber Data” means data provided
by a Third Party which measures individual locations in the Territory during a
specified time period, from a source mutually agreed in writing by the parties
(it being understood that wholesaler “867” data is a source agreeable to the
parties). 

          Section
1.57      “Product” means Granisol® (granisetron
HCl) oral solution. 

          Section
1.58      “Product Complaints” means any report
concerning the quality, purity, quantity, weight, pharmacologic activity,
labeling, identity or appearance of a Product. 

          Section
1.59      “Product ANDA” means ANDA #078334
approved by FDA on February 28, 2008, including any and all amendments and
supplements thereto and all written FDA communications related thereto. 

          Section
1.60      “Professional” means a physician or
other health care practitioner who is permitted by law to prescribe Product.


          Section
1.61      “Promote,” “Promotional” and
“Promotion” mean, with respect to a Product, any activities undertaken to
encourage sales or use of such Product, including Details, product sampling,
detail aids, drop-offs, coupons, discount cards, journal advertising, direct
mail programs, direct-to-consumer advertising, convention exhibits and all other
forms of marketing, advertising, public relations or promotion. 

          Section
1.62      “Promotional Materials” has the
meaning set forth in Section 2.4(a) . 

          Section
1.63      “Proprietary Information” means any
proprietary or confidential information communicated from one party to the other
in connection with or relating to this Agreement, the Term Sheet or the
Confidentiality Agreement (whether before or after the Effective Date), which is
identified as confidential or proprietary, or which the other party knows or has
reason to know is confidential or proprietary, including the Technology and
financial, marketing, business, technical and scientific information or data,
whether communicated in writing, orally or electronically. Proprietary
Information shall not include information that the receiving party can show
through written documentation: 




                    (a)      at
the time of disclosure, is publicly known; 

                    (b)     
after the time of disclosure, becomes part of the public domain, except by
breach of an agreement between the disclosing party or any Affiliate thereof and
the receiving party or any Affiliate thereof; 

                    (c)     
is or was in the possession of the receiving party or any Affiliate thereof at
the time of disclosure by the disclosing party and was not acquired directly or
indirectly from the disclosing party or any Affiliate thereof or from any other
party under an agreement of confidentiality to the disclosing party or any
Affiliate thereof; or 

                    (d)     
is or was developed by the receiving party or its Affiliates without use of or
reference to the other party’s Proprietary Information. 

          Section
1.64      “Regulatory Approval” means any and
all consents or other authorizations or approvals by the FDA or any other
Regulatory Authority in the Territory that are required to develop, manufacture,
market and sell a Product in the Territory; but excluding (i) Third Party drug
master files with respect to API or Product, (ii) state licenses and (iii) any
form of reimbursement approval. 

          Section
1.65      “Regulatory Authority” means any
Governmental Authority involved in granting approvals for the manufacturing,
marketing, sale, reimbursement or pricing of pharmaceutical products. 

          Section
1.66      “Retained Contracts” means any of the
Third Party Agreements which Apricus does not timely elect to have assigned to
it pursuant to Section 4.4 hereto. For the avoidance of doubt, Retained
Contracts exclude the Assigned Agreements.

          Section
1.67      “Sales and Marketing Expenses” means
the following Apricus expenses for Promotion, distribution and sale of the
Product in the Territory: (a) all out-of-pocket costs for Samples incurred as
well as all out-of-pocket costs for Sample warehousing and distribution directly
related to the Product (excluding Sample costs paid or reimbursed by PediatRx),
(b) all out-of-pocket costs for Promotional Materials and training materials
directly related to the Product (excluding Promotional Materials and training
materials costs paid or reimbursed by PediatRx), (c) all out-of-pocket costs for
sales training meetings to the extent directly attributable to the Product, (d)
all out-of-pocket costs for the purchase of Prescriber Data directly related to
the Product (including any prescriber data for competitive products), (e) all
out-of-pocket costs associated with market research, advisory boards, speaker
programs, trade shows and “lunch and learns” and other outreach programs
directly related to the Product, (f) all costs related to scientific liaisons,
national and regional account managers and product managers directly related to
the Product, (g) Medical Affairs Expenses, (h) all out-of-pocket costs
associated with warehousing directly related to the Product from the point of
completion of Manufacture to the time the Product is turned over to a carrier
for delivery, (i) all out-of-pocket handling and transportation costs to fulfill
orders directly related to the Product (excluding such costs, if any, treated as
a deduction in the definition of Net Sales), including outbound transportation
costs and costs of moving goods from a manufacturing point to a warehouse at
another location from which it is ultimately to be distributed to a Customer),
(j) all out-of-pocket costs associated with customer services directly related to the Product, including
order entry, billing and adjustments, inquiry and credit and collection, order
entry, billing, shipping, credit and collection, but in any case, not including
any costs or expenses which are reimbursed by any Third Party, and (k) all other
out-of-pocket costs and expenses of Apricus directly relating to Promotion,
distribution or sale of Product in the Territory. In the case of Product
voucher, coupon, loyalty card or other co-pay assistance programs, all
out-of-pocket costs of Apricus associated with such programs shall be treated as
Sales and Marketing Expenses to the extent not otherwise deducted in calculating
Net Sales. 




          Section
1.68      “Sales Representatives” means
sales representatives employed by Apricus or PediatRx, or a Third Party engaged
by Apricus or PediatRx, to Detail the Product, who have been trained and
equipped to Detail the Product in accordance with this Agreement. 

          Section
1.69      “Samples” means samples of a Product
that are not for sale to be distributed by a party solely in connection with the
performance of Details or as otherwise legally permissible under the rules,
guidelines and policies applicable to any Professional. 

          Section
1.70      “Serious Adverse Drug Experience”
means any Adverse Drug Experience, including those subject to expedited
reporting as defined in the regulations cited below, that is fatal or
life-threatening, requires hospitalization or prolongation of existing
hospitalization, results in persistent or significant disability or incapacity,
is a congenital anomaly/birth defect, or is of comparable medical significance
or any other event which would constitute a “serious” Adverse Drug Experience
pursuant to the terms of 21 C.F.R. 314.80 or 312.32. 

          Section
1.71      “Serious Adverse Drug Experience
Report” means any Adverse Drug Experience Report that involves a Serious
Adverse Drug Experience. 

          Section
1.72      “Subcontracting” means
subcontracting or sublicensing a party’s rights or obligations hereunder (a)
pursuant to which a Third Party will Manufacture the Product; or (b) pursuant to
which a Third Party Sales Representative is engaged to Promote the Product.
“Subcontractor” means the Third Party with whom the Subcontracting
agreement is entered into. 

          Section
1.73      “Technology” means all
pharmacological, toxicological, preclinical, clinical, technical or other
information, data and analysis and know-how relating to the registration,
Manufacture, use, importation, distribution or sale of a Product in the
Territory and all proprietary rights relating thereto Controlled by PediatRx or
its Affiliates during the Term. 

          Section
1.74      “Term” has the meaning set forth in
Section 7.1. 

          Section
1.75      “Term Sheet” has the meaning set forth
in the Preamble to this Agreement. 

          Section
1.76      “Territory” means the United States,
including its territories and possessions and Puerto Rico. 

          Section
1.77      “Therapex” means Therapex, a division
of E-Z-EM Canada, Inc., a subsidiary of E-Z-EM, Inc. or any Person which
succeeds to the obligations of Therapex under the Therapex Agreement. 




          Section
1.78      “Therapex Agreement” means that
certain Manufacturing Agreement, dated as of August 30, 2010, by and between
PediatRx and Therapex, as amended from time to time after the Effective Date in
accordance with the terms of this Agreement. 

          Section
1.79      “Third Party” means any Person other
than Apricus or PediatRx or their respective Affiliates. 

          Section
1.80      “Third Party Agreements” means the
agreements listed in Schedule B. 

          Section
1.81      “United States Bankruptcy Code” means
the U.S. Bankruptcy Code, 11 U.S.C. §§ 101, et seq. 

ARTICLE 2 
PRODUCT PROMOTION AND SALES 

          Section
2.1      Overview 

          During
the Term, subject to the terms and conditions of this Agreement (including
Section 2.10, Section 2.11, PediatRx’s right to Commercialize the Product as set
forth in Section 2.12, and Article 5), Apricus shall have the exclusive right to
Commercialize the Product in the Exclusive Area and the non-exclusive right to
Commercialize the Product in the Non-Exclusive Area in compliance with Legal
Requirements. PediatRx shall have the right to Commercialize the Product in the
Non-Exclusive Area in accordance with the terms and conditions of this
Agreement. 

          Section
  2.2      Representations to Customers

          Neither
party will make any false or misleading representations to Professionals,
customers or others regarding the other party or the Product and will not make
any representations, warranties or guarantees with respect to the
specifications, features or capabilities of the Product that are not consistent
with the applicable then-current FDA approved labeling and package insert
(except to the extent permitted by Legal Requirements). 

          Section
  2.3      Staffing; Training

          Each
party shall be solely responsible for all costs and expenses of compensating its
Sales Representatives. Each party shall periodically provide training to each of
its Sales Representatives, and shall update its training materials as
appropriate. 

          Section
  2.4      Promotional Materials; Educational Materials

                    (a)      Apricus
shall, at its own expense (which for clarity shall be included as Sales and
Marketing Expenses hereunder), have the right to create, develop, produce or
otherwise obtain, and utilize sales, promotional, advertising, marketing,
educational and training materials (“Promotional Materials”) to support
the Promotion for the Product. Such Promotional Materials may include, by way of
example, detailing aids; leave behind items; journal advertising; educational
programs; formulary binders; appropriate reprints and reprint carriers; product monographs; patient support kits; convention exhibit
materials; direct mail; market research survey and analysis; training materials;
and scripts for telemarketing and teleconferences. 




                    (b)      Each
party shall provide to the other party for review a prototype of any Promotional
Materials created by such party. The other party shall notify the submitting
party of any objections it has to such prototype and the basis therefor as soon
as reasonably practicable, but no later than ten (10) business days following
its receipt thereof. If there are objections related to regulatory concerns
which may require additional investigation or clarification, such investigation
or clarification will occur no later than an additional five (5) business days.
Failure by the other party to notify the submitting party of any objections to
the proposed prototype within such period shall constitute approval by the other
party. The submitting party shall modify such Promotional Materials to the
extent necessary to resolve any objections timely and reasonably made by the
other party to such Promotional Materials on the grounds that such Promotional
Materials are inconsistent with any Legal Requirements, and shall in good faith
consider any of the other party’s other objections. The final version of the
Promotional Materials approved by the submitting party (which shall include such
modifications as are required to address concerns timely and reasonably made by
the other party on the grounds that such Promotional Materials are inconsistent
with Legal Requirements) may be produced in quantity, and Apricus shall provide
PediatRx with the requisite number of copies of the final printed form in a
timely manner so as to allow PediatRx to satisfy its obligation to file such
materials with the FDA prior to the first use of the Promotional Materials, such
filing and regulatory review for Apricus Promotional Materials to be at the
expense of Apricus, but includible as Sales and Marketing Expenses or General
and Administrative Expenses. PediatRx will make such filing with the FDA within
two (2) business days after the date Apricus provides PediatRx with such copies
of the final version of such Promotional Materials. In furtherance of the
foregoing provisions of this Section 2.4(b), the parties will endeavor to
cooperate to facilitate the timely and efficient review of Promotional Materials
and resolution of any disputes or disagreements related to such Promotional
Materials, with a view to containing both parties’ internal personnel resources
and external costs associated with the creation, review and approval of such
Promotional Materials. In the event both parties are Promoting the Product, they
shall appoint appropriate representatives to meet on a regular basis in order to
coordinate Promotional Materials to be used by the parties so as to ensure
consistent promotional positioning and messaging across each party’s Promotional
efforts. In the event the appointed representatives are unable to agree as to
any matter, the matter shall be resolved by agreement of senior management of
the parties. 

                    (c)      Apricus
shall own all copyrights to all Apricus Promotional Materials that are created
by Apricus during the Term of this Agreement in connection with and to the
extent relating to the Promotion of the Product. 

          Section
  2.5      Medical Inquiries

                    (a)     
Lash Group or another designee of Apricus shall handle medical inquiries and all
costs under the Lash Group Contract or other Apricus contract for medical
inquiries will be assumed by Apricus and included as Sales and Marketing
Expenses or General and Administrative Expenses. Such costs have been in the
range of from $250 to $800 per month. 




                    (b)      The
parties acknowledge that each may receive direct requests for medical
information concerning the Product from members of the medical and paramedical
professions and consumers regarding the Product. 

                    (c)      Any
such requests will be referred to Apricus’ medical department, and Apricus shall
be solely responsible for responding to such requests in compliance with all
applicable Legal Requirements and the Product ANDA. Apricus shall be obligated
for any costs associated with its responsibilities pursuant to this Section 2.5.


          Section
  2.6      Trademarks

          Subject
to this Section 2.6 and to applicable Legal Requirements, Apricus shall have the
right to use the Apricus Trademarks, and include the name “Apricus
Pharmaceuticals USA, Inc.” or any variation thereof in connection with its
Promotion activities and any materials related thereto. Apricus recognizes that
(i) the PediatRx Trademarks are owned by PediatRx, as well as the domain name
“Granisol.net” (the “Domain Name”); and Apricus shall not acquire and
shall not claim any right (except as expressly granted under Section 2.7 or
Section 2.13), title or interest in or to the PediatRx Trademarks or the Domain
Name by virtue of the rights granted under this Agreement or through Apricus’
use of the PediatRx Trademarks or Domain Name, and the parties agree that, as
between the parties, all goodwill and improved reputation associated with the
PediatRx Trademarks and Domain Name arising out of the use thereof by Apricus
and its Affiliates, sublicensees and other Subcontractors shall inure to the
benefit of PediatRx. Apricus shall not use the PediatRx Trademarks upon, in
connection with, or in relation to, the Product, or any packaging, labels,
containers, advertisements and other materials related thereto, except as is
reasonable in connection with the Promotion, importation, distribution and sale
of the Product in the Territory. Apricus shall as soon as practicable notify
PediatRx of any apparent infringement by a Third Party of any of the PediatRx
Trademarks of which Apricus becomes aware. Apricus agrees to reasonably
cooperate with PediatRx to enable PediatRx to verify that the use by Apricus of
the PediatRx Trademarks is consistent with the requirements in this Agreement.
At no time shall Apricus remove or minimize the PediatRx name or Trademarks
already contained in any packaging materials, labels, containers, advertisements
and any other materials related thereto.

          Section
2.7      License Grant 

                    (a)      During
the Term, subject to the terms and conditions of this Agreement, PediatRx hereby
grants to Apricus and its Affiliates, and Apricus and its Affiliates hereby
accept, a non-exclusive right and license under the PediatRx Trademarks and the
Technology to Commercialize the Product in the Territory, on the terms and
subject to the conditions set forth herein. Notwithstanding the foregoing,
Apricus’ right to Commercialize the Product shall be exclusive with respect to
the Exclusive Area. 

                    (b)     
Apricus shall have the right to grant sublicenses to, or Subcontract with, Third
Parties; provided that (i) all such sublicenses and subcontracts shall be
consistent with the terms of this Agreement and (ii) Apricus shall be
responsible for the compliance by such sublicensees and subcontractors with the
terms of this Agreement. 




          Section
2.8      Transfer of Product
Information 

          PediatRx
shall provide Apricus with the following Technology as promptly as practicable
after the Effective Date: 

                    (a)      Copies
of current manufacturing, stability and release testing documentation in the
possession and Control of PediatRx for Product Manufactured for the Territory,
which shall include, to the extent in the possession and Control of PediatRx,
representative master and executed manufacturing batch records, test methods,
stability protocols, stability results, manufacturing guides, conformance guides
and specifications for the Product; and 

                    (b)      To
the extent not included in the materials provided to Apricus pursuant to Section
2.8(a), all other reports, data and information in the possession and Control of
PediatRx relating to the Product reasonably requested by Apricus as necessary or
useful for Apricus to exercise its rights hereunder or comply with Legal
Requirements. 

          PediatRx
shall cooperate and consult with Apricus regarding the Technology transferred
pursuant to this Section 2.8 as reasonably requested by Apricus and at no
additional cost to Apricus. 

          Section
  2.9      Limitation on Other Co-Promotion
  Activities

          PediatRx
shall not license to any Third Party any co-promotion rights in the
Non-Exclusive Area for *** (***) years from the Effective Date. 

          Section
  2.10      Retention of Rights

                    (a)      PediatRx
hereby expressly reserves the exclusive right to use, and to grant licenses
under the PediatRx Corporate Trademark in the Territory for any purpose other
than the Manufacture, Promotion, importation, distribution or sale of Product in
the Exclusive Area.

                    (b)      Except
as expressly set forth herein, nothing contained herein shall be deemed to grant
Apricus, by implication, a license or other right or interest in any patent,
trademark or other intellectual property right of PediatRx or its Affiliates.
Except as expressly set forth herein, nothing contained herein shall be deemed
to grant PediatRx, by implication, a license or other right or interest in any
patent, trademark or other intellectual property right of Apricus or its
Affiliates. 

          Section
  2.11      Negative Covenants

                    (a)      Apricus,
on behalf of itself and its Affiliates, hereby covenants not to use and not to
permit or cause any licensee, sublicensee or other Third Party to use, any
PediatRx Trademark or Technology in the Territory, for any purpose other than as
expressly authorized in this Agreement. 

***Confidential Information, indicated by [***], has been
omitted by this filing and filed separately with the Securities and Exchange
Commission. 




                    (b)     
PediatRx, on behalf of itself and its Affiliates, hereby covenants not to use,
and not to permit or cause any licensee, sublicensee or other Third Party to use
(i) any PediatRx Product Trademark in the Territory, provided that PediatRx and
its representatives and contractors may use the PediatRx Product Trademark in
the Territory in accordance with this Agreement or (ii) any Apricus Trademark
for any purpose other than as expressly authorized in this Agreement. 

          Section
  2.12      PediatRx Co-Promotion in the Non-Exclusive
  Area

                    (a)     
PediatRx may elect, at any time during the Term, to market and have the PediatRx
Sales Force Detail the Product directly to Professionals within the
Non-Exclusive Area.

                    (b)     
On an annual basis, each party will submit to the other party a call plan
setting forth the Details to be performed by its Sales Force in the
Non-Exclusive Area. Apricus and PediatRx shall coordinate each of their Sales
Forces so as not to duplicate contacts in a zip code area to Professionals,
pharmacists, other healthcare decision makers, etc. unless otherwise agreed.


                    (c)      Each
party may purchase from the other party, at the other party’s actual
out-of-pocket costs of reproduction and shipment, copies of any Promotional
Materials created by the other party for use by its Sales Force, to the extent
limited to Product. Upon each party’s request, the other party will provide
electronic copies of such Promotional Materials created by or for it, which
Promotional Materials may be modified for use by the requesting party; provided
that any modification must be approved as described in Section 2.12(d) below.


                    (d)     
PediatRx may create and develop its own Promotional Materials for use by the
PediatRx Sales Force (“PediatRx Promotional Materials”). Prior to the use
thereof, PediatRx shall provide to Apricus a prototype of any PediatRx
Promotional Materials for review and approval in accordance with Section 2.4(b)
above. The PediatRx Promotional Materials will not contain any Apricus Trademark
unless such materials are approved by Apricus. In furtherance of the foregoing
provisions of this Section 2.12(d), the parties will endeavor to cooperate to
facilitate the timely and efficient review of PediatRx Promotional Materials and
resolution of any disputes or disagreements related to Promotional Materials,
with a view to containing both parties’ internal personnel resources and
external costs associated with the creation, review and approval of the PediatRx
Promotional Materials. 

                    (e)     
Each Party shall be solely responsible for costs or expenses related to any
activities of the its Sales Force, including costs for its Promotional
Materials, training or training materials or the purchase from the other Party
of Promotional Materials for its Sales Force. 

                    (f)     
Each Party will cause its Sales Force and employees and agents acting on its
behalf to comply with this Agreement and all applicable Legal Requirements in
connection with the Promotion of the Product. It is understood, and each Party
agrees, that it will be accountable for the acts or omissions of its employees
and agents. 

                    (g)     
Each Party will not make any false or misleading representations to
Professionals, customers or others regarding the other Party or the Product and
will not make any representations, warranties or guarantees with respect to the
specifications, features or capabilities of the Product that are not consistent with the
applicable then-current FDA approved labeling, package insert or other
documentation accompanying or describing the Product. 




          Section
  2.13      Product Website

          Subject
to the terms and conditions of this Agreement, PediatRx hereby grants to Apricus
and its Affiliates, and Apricus and its Affiliates hereby accept, a
non-exclusive, royalty-free right and license to use the Domain Name and the
registration thereof, including the trademark and service mark “granisol.net”
and any intellectual property rights relating thereto, and all rights to use and
access, and with the approval of PediatRx pursuant to Section 2.4(b) above,
modify, change or replace such content of the site associated to the Domain Name
(the “Product Website”), to the extent any such trademark, service
mark, or intellectual property rights exist as of the Effective Date or during
the Term, solely in connection with Promoting and selling the Product in the
Territory, on the terms and subject to the conditions set forth herein. PediatRx
shall retain the Domain Name registration and the hosting provider account for
the Domain Name. Any out-of-pocket costs associated with maintaining and
modifying the Product Website shall be paid by Apricus but included in the Sales
and Marketing Expenses for Apricus. 

ARTICLE 3 
CLINICAL AND REGULATORY AFFAIRS;
DEVELOPMENT 

          Section
3.1      Regulatory Approvals 

          PediatRx
shall properly maintain and keep current and active all Regulatory Approvals for
the Product that are in effect in the Territory as of the Effective Date.
PediatRx’s commercially reasonable expenses for state licensing renewals and
processing provided by Beckloff Associates to the extent directly attributable
to the Product sold by Apricus and its Affiliates will be reimbursed by Apricus,
with such expenses being includible as Sales and Marketing Expenses or General
and Administrative Expenses. PediatRx shall consult with Apricus regarding any
proposed supplement, amendment or alteration to the Regulatory Approvals and
shall consider Apricus’ comments in good faith; provided that as the holder of
the Product ANDA, PediatRx shall have final decision-making authority as to
whether and how to supplement, amend or otherwise alter the Regulatory Approvals
for the Product in the Territory. PediatRx shall not have the right to, and
hereby covenants that it will not, transfer or assign any Regulatory Approval
for the Product to any Third Party, without Apricus’ prior written consent
(which Apricus may withhold in its sole discretion), except in conjunction with
a permitted assignment of this Agreement made in accordance with Section 14.9.


          Section
  3.2      Compliance with Regulatory Requirements

          Unless
otherwise required by law or expressly required by this Agreement, including
Section 3.1 and Section 3.4, PediatRx will be responsible for complying with all
regulatory requirements and maintaining all contacts with Governmental
Authorities with respect to the ownership of the Product ANDA, including
maintaining and updating of the Product ANDA, the reporting of any Adverse Drug
Experiences to the FDA and the filing of Promotional Materials with the FDA.





          Section
3.3      Advertising and Promotion
Compliance 

          In
performing its duties hereunder, each party shall, and shall cause the Apricus
Sales Force or PediatRx Sales Force, as applicable, and its employees and agents
to, comply with all Legal Requirements, including the FDA’s regulations and
guidelines concerning the advertising of prescription drug products, OPDP’s
promotional guidelines, the PhRMA Code on Interactions with Healthcare
Providers, the Prescription Drug Marketing Act of 1987, as amended, and the
rules and regulations promulgated thereunder, equal employment,
non-discrimination and federal and state anti-kickback Legal Requirements, and
Legal Requirements with respect to submission of false claims to governmental or
private health care payors, which may be applicable to the activities (including
the warehousing, handling and distribution of Samples) to be performed by such
party hereunder. None of Apricus, PediatRx, the Apricus Sales Force, the
PediatRx Sales Force and either party’s employees and agents shall offer, pay,
solicit or receive any remuneration to or from Professionals in order to induce
referrals of or purchase of the Product in violation of applicable Legal
Requirements, including without limitation federal or state anti-kickback Legal
Requirements. The Apricus Sales Force and the PediatRx Sales Force shall have
been trained in compliance with applicable Legal Requirements prior to engaging
in Promotion of the Product. 

          Section
  3.4      Communications with Governmental Authorities

                    (a)     
All communications with Governmental Authorities concerning the Product and
arising from PediatRx’s ownership of the Product ANDA shall be the
responsibility of PediatRx. PediatRx shall consult with Apricus regarding any
such communication and shall consider in good faith Apricus’ comments.

                    (b)     
Each party shall within two (2) business days after receipt of any communication
from the FDA or from any other Regulatory Authority in the Territory relating to
the Product, forward a copy of the same to the other party and reasonably
respond to all inquiries by the other party relating thereto. If a party is
required by law to communicate with the FDA or with any other Regulatory
Authority in the Territory relating to the Product, then such party shall so
advise the other party within two (2) business days and provide the other party
in advance with a copy of any proposed written communication with the FDA or any
other Regulatory Authority in the Territory as soon as reasonably practicable
after preparation. Each party shall, to the extent practicable in light of
applicable Legal Requirements, have a period of at least ten (10) days (or such
shorter period as is practicable under the circumstances) to provide comments to
the other party on such communications, which comments the other party shall use
commercially reasonable efforts to incorporate into its final communications to
the extent such comments are reasonable and consistent with applicable Legal
Requirements. 

          Section
  3.5      Product Complaints

          Each
party shall refer any oral or written Product Complaints which it receives
concerning the Product to the other party within five (5) days of its receipt
thereof; provided that all complaints concerning suspected or actual Product
tampering, contamination or mix-up shall be delivered within twenty-four (24)
hours of its receipt thereof. Neither party shall take any other action in
respect of any such complaint without the consent of the other party unless otherwise required by Legal Requirements. The parties will
collaborate to resolve any Product Complaints. All Product Complaints shall be
handled under the SOPs in place with ICS and the Lash Group or such other third
party retained to service Product Complaints. 




          Section
  3.6      Adverse Drug Experience Reports

                    (a)     
Each party shall notify the other: (i) of all Serious Adverse Drug Experience
Reports within forty-eight (48) hours of the time such Serious Adverse Drug
Experience Report becomes known to such party (including its employees); and
(ii) of all Adverse Drug Experience Reports within five (5) days of the time
such Adverse Drug Experience Report becomes known to such party (including its
employees). 

                    (b)     
Responsibility for maintaining the Adverse Drug Experience Report database shall
be retained by PediatRx. PediatRx shall maintain the Adverse Drug Experience
Report database in accordance with all applicable Legal Requirements through its
contract with ICS and the Lash Group (as may be assigned to Apricus pursuant to
Section 4.4) . PediatRx shall report Adverse Drug Experience Reports, Periodic
Adverse Drug Experience Reports (PADER) and Periodic Safety Update Reports
(PSUR) in accordance with International Conference on Harmonization Clinical
Safety Data Management: Periodic Safety Update Reports for Marketed Drugs (ICH
E2C) and 21 C.F.R. § 314.80. 

          Section
  3.7      Recalls or Other Corrective Action

                    (a)     
PediatRx shall have final decision-making authority with respect to any recall
(including recall of packaging and promotion materials), market withdrawals or
any other corrective action related to the Product. PediatRx shall promptly
consult with Apricus with respect to any such actions proposed to be taken by
PediatRx (and in all events prior to the taking of such actions), including all
actions that are reasonably likely to result in a material adverse effect on the
marketability of the Product in the Territory. At PediatRx’s request, Apricus
shall provide assistance to PediatRx in conducting such recall, market
withdrawal or other corrective action (including retrieving Samples distributed
by the Apricus Sales Force to Professionals). As the ANDA holder, PediatRx shall
be responsible for all communications with the FDA with respect to any Product
recall, market withdrawal or other corrective action; provided that (i) PediatRx
shall consult with Apricus prior to submitting any related documentation to the
FDA, (ii) PediatRx shall provide Apricus with copies of all communications
received from or submitted to the FDA with respect to any such recall, market
withdrawal or other corrective action within two (2) business days after receipt
or submission thereof and (iii) Apricus shall be permitted to accompany PediatRx
and take part in any meetings or discussions with FDA with respect to any such
recall, market withdrawal or other corrective action. 

                    (b)      With
respect to any recall, market withdrawal or corrective action with respect to
Product, (i) PediatRx shall be responsible for the out-of-pocket costs
associated with such recall, market withdrawal or corrective action to the
extent relating to Product Manufactured by it, and (ii) Apricus shall be
responsible for the out-of-pocket costs associated with such recall, market
withdrawal or corrective action to the extent relating to Product Manufactured
by it. To the extent the recall, market withdrawal or corrective action relates
to Product Manufactured by both parties, the responsibility for out-of-pocket
costs associated therewith shall be equitably apportioned between the parties
based on the relative amount of Product affected that was Manufactured by each
party. For clarity, any unreimbursed costs incurred by Apricus under this
Section 3.7(b) may be included by Apricus as COGS, Sales and Marketing Expenses
or General and Administrative Expenses, as applicable. 




          Section
  3.8      Assistance

          Each
party agrees to provide to the other all reasonable assistance and take all
actions reasonably requested by the other party that are necessary to enable the
other party to comply with any Legal Requirement applicable to the Product in
the Territory. Apricus shall pay any out-of-pocket costs associated with the
activities contemplated by this Article III with respect to Product sold by
Apricus and its Affiliates, which shall be included in Sales and Marketing
Expenses or General and Administrative Expenses for Apricus, including payments
under relevant Assigned Agreements and costs of pharmacovigilance. 

ARTICLE 4 
MANUFACTURING AND SUPPLY; SALES 

          Section
4.1      Manufacturing Transfer


                    (a)      The
Assigned Agreements relating to the manufacture and supply of the Product and
the API (each, an “Assigned Manufacturing Agreement”) shall be assigned
by PediatRx in their entirety to Apricus, and shall be assumed in their entirety
by Apricus promptly following (but in no event later than five (5) business days
following) the Effective Date, pursuant to an Assignment and Assumption
Agreement to be negotiated in good faith by the parties.

                    (b)      Promptly
after the Effective Date, PediatRx shall notify each counterparty to any
Assigned Manufacturing Agreement that such Assigned Manufacturing Agreement has
been assigned to, and assumed by, Apricus, and shall authorize and instruct such
counterparty to grant Apricus access to all technical, regulatory and other
information and materials relating to the Product that are then in the
possession of such counterparty in accordance with the applicable Assigned
Manufacturing Agreement. Apricus shall be entitled to consult with such
counterparty’s technical personnel with respect to Manufacturing activities as
set forth in such Assigned Manufacturing Agreement.

          Section
4.2      Booking of Sales


          Apricus
or its Affiliates shall book its sales of the Product, less the
PediatRx-Generated Sales. PediatRx or its Affiliates shall book its sales of the
Product, less the Apricus-Generated Sales. 

          Section
  4.3      Purchase of Samples by PediatRx

                    (a)      This
Section 4.3 shall apply only in the event that PediatRx elects to Detail Product
in the Non-Exclusive Area in accordance with Section 2.12. 




                    (b)      Apricus
shall provide or cause to be provided to PediatRx, as ordered by PediatRx
hereunder, Apricus-Manufactured Samples to be distributed by PediatRx solely in
connection with the performance of Details or as otherwise required by the
rules, guidelines and policies applicable to any Professional. 

                    (c)      At
least *** (***) days prior to the beginning of each Agreement Quarter ending
after PediatRx’s election to Detail Product in the Non-Exclusive Area, PediatRx
shall submit to Apricus a written non-binding forecast by month of the number of
units of Apricus-Manufactured Samples for the *** (***) month period beginning
with such Agreement Quarter. Such Apricus-Manufactured Sample forecast provided
by PediatRx shall be consistent with Apricus’ Third Party Product supply
agreements then in effect (the relevant provisions of which shall be provided to
PediatRx upon PediatRx’s request). PediatRx shall place binding orders with
Apricus for Apricus-Manufactured Samples, in a mutually agreeable format, to the
same extent as Apricus is required to place binding orders for
Apricus-Manufactured Samples with its Third Party suppliers. 

                    (d)      PediatRx
acknowledges and agrees that Apricus-Manufactured Samples will be delivered from
the Third Party supplier site, and will be shipped according to the terms for
delivery in the Assigned Manufacturing Agreement or successor agreement, and
that title to and risk of loss with respect to Apricus-Manufactured Samples will
pass to PediatRx as set forth in the Assigned Manufacturing Agreement or
successor agreement. PediatRx will be responsible for procuring insurance for
the transport of Apricus-Manufactured Samples from the facilities of the Third
Party supplier to the shipping address designated by PediatRx in its purchase
order. PediatRx shall be responsible for distributing the Apricus-Manufactured
Samples to its Sales Representatives in a timely manner. Apricus shall invoice
PediatRx for each shipment of Apricus-Manufactured Samples, at Apricus’
out-of-pocket cost, payable within thirty (30) days of the invoice date.
PediatRx shall be responsible for securing the return and appropriate disposal
of and reconciling existing Sample inventories from discontinued PediatRx Sales
Representatives. 

                    (e)     
Apricus-Manufactured Samples supplied by Apricus to PediatRx shall be used by
PediatRx solely in performing Details to Professionals in accordance with this
Agreement. Upon its receipt of any Samples, PediatRx shall be solely responsible
for accountability and compliance with the PDMA for the PediatRx Sales Force,
and other applicable Legal Requirements relating to Samples or the distribution
of same by the PediatRx Sales Force, and shall be responsible for adherence by
its Sales Representatives to such Legal Requirements. 

                    (f)
PediatRx or its designee may inspect all shipments of Apricus-Manufactured
Samples and accept or reject such Samples to the extent set forth in the
applicable Assigned Manufacturing Agreement or successor agreement. 

***Confidential Information, indicated by [***], has been
omitted by this filing and filed separately with the Securities and Exchange
Commission. 




          Section
4.4      Third Party Agreements


          For
each Third Party Agreement, Apricus shall have seven (7) days after receipt of a
complete copy of such Third Party Agreement (for each, an “Election
Date”) in order to elect by delivery of written notice to PediatRx if such
Third Party Agreement shall be assigned by PediatRx to Apricus, subject to
Section 14.11. Prior to such Election Date, and following such Election Date if
Apricus has elected that such Third Party Agreement be assigned to Apricus,
PediatRx shall not amend, assign, delegate, terminate or cause to be terminated
such Third Party Agreement or any of its rights or obligations thereunder
without the prior written consent of Apricus. Apricus agrees to be responsible
for any payments required under any Retained Contract relating to the
Manufacture or Commercialization of Product in the Territory, provided that any
such payments shall be includible as COGS, Sales and Marketing Expenses or
General and Administrative Expenses. PediatRx shall not amend any Retained
Contract in a way that adversely effects Apricus or its rights under this
Agreement, provided that PediatRx shall have the right to terminate
and/or not renew any and all Retained Contracts.

ARTICLE 5 
COMPENSATION 

          Section
5.1      Up-Front Payments.


          Within
*** (***) days after the Effective Date, Apricus shall pay to PediatRx an
up-front payment in the amount of *** Dollars ($***).

          Section
5.2      Quarterly Payments.

                    (a)     
For PediatRx-Generated Net Sales. During the Term on a quarterly basis,
Apricus shall pay to PediatRx the PediatRx-Generated Net Sales for such quarter,
less the PediatRx Allocable Costs. For example, if for a given Agreement
Quarter, (i) the Allocable Percentage is ***%, meaning that Professionals
detailed by PediatRx prescribed ***% of units of Product for that Agreement
Quarter, (ii) Net Sales by Apricus and its Affiliates for that Agreement Quarter
are $***, (iii) and PediatRx Allocable Costs are $***, the payment to PediatRx
required under this paragraph (a) would be: $*** x ***% - *** = $***. The
remaining ***% of Net Sales by Apricus and its Affiliates would be utilized in
the calculation of Net Operating Income under paragraph (c) below. 

                    (b)      For
Apricus-Generated Net Sales. During the Term on a quarterly basis, PediatRx
shall pay to Apricus the Apricus-Generated Net Sales for such quarter, less the
Apricus Allocable Costs. For example, if for a given Agreement Quarter, (i) the
Allocable Percentage is ***%, meaning that Professionals detailed by PediatRx
prescribed ***% of units of Product for that Agreement Quarter, (ii) Net Sales
by PediatRx and its Affiliates for that Agreement Quarter are $***, (iii) and
Apricus Allocable Costs are $***, the payment to Apricus required under this
paragraph (b) would be: $*** x ***% - *** = $***. The payment of $*** would then
be included in the Net Operating Income calculation by Apricus under paragraph
(c) below. (For reference purposes only, the financial benefit to be derived by
PediatRx for Apricus-Generated Net Sales shall result from the value of payments
made by PediatRx to Apricus pursuant to this Section 5.2(b) being included
within the definition of Net Operating Income pursuant to Section 1.44(vi)
above, which shall result in additional payments by Apricus to PediatRx pursuant
to Section 5.2(c) below.) 

***Confidential Information, indicated by [***], has been
omitted by this filing and filed separately with the Securities and Exchange
Commission. 




                    (c)     
For Apricus Net Sales. During the Term on a quarterly basis, Apricus
shall pay to PediatRx a percentage of Net Operating Income according to the
schedule set forth below: 


	AGREEMENT YEAR 	NET OPERATING INCOME% 
	Year 1 	***% 
	Year 2 	***% 
	Year 3 	***% 
	Year 4 	***% 
	Year 5 through Year 11 	***% 



                    (d)     
Within thirty (30) days following the initial availability of the Prescriber
Data needed to calculate the payments required to be made for a given Agreement
Quarter pursuant to this Section 5.2, the applicable party shall provide the
other party with a statement in a mutually agreeable format setting forth to the
extent applicable: 

                              (i)     
Net Sales during such Agreement Quarter; 

                              (ii)     
PediatRx-Generated Net Sales or Apricus-Generated Sales during such Agreement
Quarter; 

                              (iii)      the
Allocable Percentage for such Agreement Quarter; 

                              (iv)      PediatRx
Allocated Costs or Apricus Allocated Costs for such Agreement Quarter; 

                              (v)      COGS
during such Agreement Quarter;

                              (vi)     
Marketing and Sales Expenses during such Agreement Quarter; 

                              (vii)      General
and Administrative Expenses during such Agreement Quarter; and 

                              (viii)      Net
Operating Income during such Agreement Quarter.

                    (e)     
Payments required to be made under this Section 5.2 shall be paid within thirty
(30) days after the initial availability of the Prescriber Data needed to
calculate the payments required to be made for a given Agreement Quarter
pursuant to this Section 5.2. 

***Confidential Information, indicated by [***], has been
omitted by this filing and filed separately with the Securities and Exchange
Commission. 




          Section
5.3      Maintenance of Records


                    (a)     
Each party agrees to keep, for a period of at least three years after the date
of entry (or such longer period as may be required by Legal Requirements) full
and accurate records maintained in accordance with such party’s accounting
practices in sufficient detail to enable a Third Party to accurately calculate
all payments, reports and similar obligations of a party under this Agreement.
Upon thirty (30) days prior written notice, such records shall be made available
by the audited party for audit by an independent certified public accounting
firm designated by the other party and reasonably acceptable to the party whose
records are to be examined. The auditor will only examine such books and records
during business hours but not more than once each calendar year while this
Agreement remains in effect and for *** years thereafter. The fees and expenses
of the auditor performing such verification examination shall be borne by the
party conducting the verification; provided, however, that if any verification
reveals that the audited party has reported incorrectly, and the amount of such
discrepancy is at least *** percent (***%) of the aggregate amount that should
have been reported for the period examined, then the audited party shall pay the
entire amount of the fees and expenses for such verification. 

                    (b)      Whenever
in this Agreement a party is required to report its costs, or is entitled to
receive or obligated to make a payment based on its costs, such costs shall be
determined in accordance with generally accepted accounting principles as
applied in the United States (“GAAP”), consistent with the terms of this
Agreement. The term “out-of-pocket” costs or expenses means cost or expenses
paid to Third Parties and shall not include any fixed costs or expenses,
personnel costs or expenses, overhead costs or expenses, or other costs or
expenses of a similar nature. 

          Section
  5.4      Payments

          Any
payments required to be made by either party under this Agreement shall be made
in United States dollars via wire transfer of immediately available funds to
such bank account as the other party shall designate in writing prior to the
date of such payment. All payments shall bear interest from the date due until
paid at a rate equal to the prime rate effective for the date that payment was
due plus five percent (5%), as quoted by the Wall Street Journal, New York
Edition, on the date such payment was due, or, if less, the maximum rate
permitted by applicable law. 

ARTICLE 6 
TRANSITION MATTERS 

          Section
6.1      Transition Plan 

          The
parties have agreed to the transition plan (the “Transition Plan”)
attached as Schedule D, which contains specific events and obligations to effect
the shifting of manufacturing, promotion and sales responsibilities to Apricus
pursuant to the terms of this Agreement. The parties agree to use commercially reasonable
efforts to perform their respective obligations as set forth in the Transition
Plan within the timelines set forth therein. The parties will discuss in good
faith any changes to the Transition Plan that become required or advisable.
Except as otherwise set forth in the Transition Plan or elsewhere in this
Agreement, each party shall be responsible for its respective costs and expenses
incurred in performing the Transition Plan. The parties acknowledge that
implementation of the Transition Plan will require the cooperation or consent of
Third Parties as indicated therein, and, as a result, the timing of such
transfer is not within the sole control of the parties. 

***Confidential Information, indicated by [***], has been
omitted by this filing and filed separately with the Securities and Exchange
Commission. 




          Section
  6.2      Customer Orders

          PediatRx
shall refer to Apricus any orders for Product that it receives in the Territory
which provide for delivery after the First Sales Booking Date. From and after
the First Sales Booking Date, Apricus shall be responsible for supplying Product
in fulfillment of such orders. 

          Section
  6.3      Rebates, Chargebacks, Discounts,
  Redemptions and Returns

                    (a)      Financial
responsibility for rebates, chargebacks, discounts, co-pay redemptions under the
Co-Pay Program and returns shall be according to which party or Affiliate sold
the Product that generated the rebate, chargeback, discount, redemption or
return. To the extent such determination cannot be made by lot number, the
parties shall mutually agree to an equitable method to determine such
allocation.

                    (b)      Apricus
agrees to provide, without charge, up to *** (***) bottles of Product from the
purchase order placed with Therapex as detailed in the Term Sheet
(“Replacement Quantities”) to be used by PediatRx solely for the purpose
of replacing Product with limited shelf-life in the inventory of Customers from
and after the Effective Date, pursuant to contracts or arrangements between
PediatRx and Customers. The parties shall cooperate with Customers to effect
such replacement, provided that transportation and related costs to return
limited shelf-life inventory and deliver Replacement Quantities shall be paid by
PediatRx. For clarity, the Replacement Quantities shall be managed after
delivery under contracts that Apricus has with the relevant Customer (which may
be an Assigned Agreement). 

          Section
6.4      Government Pricing
Information. 

          With
respect to Product sold by Apricus and its Affiliates after the First Sales
Booking Date, Apricus will provide to PediatRx the information reasonably
requested by PediatRx to permit PediatRx to comply with its government price
reporting obligations under Legal Requirements. 

          Section
  6.5      Customer Service

          On
and from the First Sales Booking Date through the completion of the Term,
subject to Section 6.3(b), Apricus shall assume all customer service
responsibility and provide all customer service required by its customers with
respect to the Product through the existing PediatRx contract with ICS or other service provider retained by Apricus
and Apricus shall assume all related costs (which shall be includible as Sales
and Marketing Expenses). As of the First Sales Booking Date, and through the
completion of the Term, all customer service requests relating to the Product
coming to PediatRx will be referred to ICS or other service provider retained by
Apricus. 

***Confidential Information, indicated by [***], has been
omitted by this filing and filed separately with the Securities and Exchange
Commission. 




ARTICLE 7 
TERM AND TERMINATION 

          Section
7.1      Term 

          The
initial term of this Agreement (the “Initial Term”) shall commence on the
Effective Date and shall continue, unless terminated sooner in accordance with
this Article 7, for *** (***) years. After the Initial Term, the term of this
Agreement shall automatically renew for successive *** periods (each a
“Renewal Term”), unless terminated sooner in accordance with this Article
7 and unless either party provides written notice to the other party of
non-renewal at least thirty (30) days prior to the end of the Initial Term or
any Renewal Term. 

          Section
  7.2      Early Termination

                    (a)     Apricus
may terminate this Agreement for any reason upon ninety (90) days’ prior written
notice to PediatRx. 

                    (b)      Apricus
may terminate this Agreement immediately upon written notice to PediatRx in the
event of any action taken or objection raised by any Governmental Authority that
prevents Apricus from performing its obligations under this Agreement or
otherwise makes such activity unlawful.

          Section
7.3      Termination for Cause


          Either
party may terminate this Agreement, effective at any time after providing sixty
(60) days written notice and an opportunity to cure during such sixty (60)-day
period in the event of a material failure of the other party to comply with its
material obligations contained in this Agreement. If such cure is effected
within such period, such notice with respect to such termination shall be null
and void. 

          Section
  7.4      Termination for Bankruptcy or Force
  Majeure

          To
the extent permitted by law, each party will have the right to terminate this
Agreement immediately upon notice to the other party, in the event of either of
the following: 

                    (a)      The
filing of a petition by the other party under the United States Bankruptcy Code,
except Chapter 11 of the United States Bankruptcy Code; or 

***Confidential Information, indicated by [***], has been
omitted by this filing and filed separately with the Securities and Exchange
Commission. 




                    (b)     
Any Force Majeure Event affecting the other party beyond the other party’s
control which lasts for a period of at least six (6) months and which is of
sufficient intensity to interrupt or prevent the carrying out of such other
party’s material obligations under this Agreement during such period; provided
that there shall be no such termination right in the event of a Force Majeure
Event relating to Manufacturing of Product. 

          Section
  7.5      Force Majeure

          Any
Force Majeure Event of the type described in Section 14.7 affecting a party
hereunder shall entitle the other party hereto, at any time after the expiry of
the period of six (6) months specified therein and upon sixty (60) days written
notice given after such six (6)-month period (such notice being null and void if
the Force Majeure Event is discontinued during such sixty (60)-day period), in
addition to the right to terminate this Agreement under Section 7.4, the right
to continue the Agreement in full force and effect without modification. In no
circumstances will either party be liable to the other for its inability to
perform under this Agreement due to any such Force Majeure Event. 

          Section
  7.6      Effect of Termination

                    (a)      No
additional payment obligations arising under Article 5 hereof shall accrue after
the date of expiration or termination of this Agreement; provided,
however, that expiration or termination of this Agreement shall not relieve
either party of any obligations accruing prior to such expiration or termination
(including, without limitation, accrued payment obligations). Certain provisions
of this Agreement by their terms continue after the expiration or termination of
this Agreement, including Section 3.6, Section 3.7, Section 3.8, Section 5.3,
Section 5.4, Section 6.3, Section 6.4, Section 7.6, Section 8.3, and Article 10,
Article 11, Article 12, Article 13 and Article 14. In addition, any other
provisions required to interpret and enforce the parties’ rights and obligations
under this Agreement shall also survive, but only to the extent required for the
full observation and performance of this Agreement. 

                    (b)      Except
as indicated in Section 7.5, expiration or termination of this Agreement shall
be without prejudice to (i) any remedies which any party may then or thereafter
have hereunder or at law or in equity; and (ii) a party’s right to receive any
payment accrued under the Agreement prior to the termination date but which
became payable thereafter; and (iii) either party’s right to obtain performance
of any obligations provided for in this Agreement which survive termination by
their terms or by a fair interpretation of this Agreement. Except as expressly
set forth herein, the rights to terminate as set forth herein shall be in
addition to all other rights and remedies available under this Agreement, at
law, or in equity or otherwise. 

                    (c)     
Upon expiration or termination of this Agreement, all licenses granted by
PediatRx to Apricus pursuant to Section 2.7 shall automatically terminate and
revert to PediatRx. 

                    (d)      Subject
to Section 7.6(f), upon the expiration or termination of this Agreement pursuant
to this Article 7, each party shall promptly transfer and return to the other
party all Proprietary Information of the other party (provided that each party
may keep one copy of such Proprietary Information for archival purposes only).
Upon the expiration or termination of this Agreement, Apricus shall, if
requested by PediatRx, provide to PediatRx all Promotional Materials in Apricus’ possession (including electronic files of
all Promotional Materials) at Apricus’ out-of-pocket cost for printing and
delivering such materials; provided, however, that Apricus shall, unless
otherwise requested by PediatRx, destroy any printed copies of Promotional
Materials bearing the Apricus Trademarks and may remove the Apricus Trademarks
from electronic files of Promotional Materials. 




                    (e)      Upon
the expiration or termination of this Agreement pursuant to this Article 7,
other than termination by Apricus pursuant to Section 7.3, PediatRx may, but is
not obligated to, purchase from Apricus, at Apricus’ cost (as determined
pursuant to this Agreement) all remaining Product inventory, including Samples.
In the event of any purchase of inventory from Apricus pursuant to this Section
7.6(e), the parties shall negotiate in good faith as to an equitable treatment
with respect to liability arising out of sales of such inventory by or on behalf
of PediatRx. 

                    (f)     
In the event of the expiration or termination of this Agreement, other than
termination by Apricus pursuant to Section 7.3, at PediatRx’s sole discretion,
Apricus shall, as promptly as practicable (and in any event within 60 days,
unless a shorter period is specified below) after such expiration or termination
perform any or all of the following (at PediatRx’s option): (i) upon PediatRx’s
written request, assign to PediatRx, subject to Section 14.11, any or all
Assigned Agreements and/or Assigned Manufacturing Agreements and any or all
other contracts with vendors to the extent such contracts are necessary for
PediatRx to take over responsibility for the Manufacture, Promotion and sales of
Product in the Territory; and (ii) take such other actions and execute such
other instruments, assignments and documents as may be necessary to effect,
evidence, register and record any transfer, assignment or other conveyance of
rights under this Section 7.6(f) elected by PediatRx to PediatRx. 

                    (g)      Upon
any termination of this Agreement by PediatRx prior to the end of the Initial
Term, other than termination by PediatRx pursuant to Section 7.3, PediatRx shall
have the obligation on a qu’arterly basis to pay Apricus a percentage of Net
Operating Income related to the Product in the Territory according to the
schedule set forth below: 


	TERMINATION IN 
AGREEMENT YEAR 	NET OPERATING 
INCOME %
  
	Year 0-7 	***% for *** years 
from termination

	Year 8 	***% for *** years 
from termination

	Year 9 	***% for *** years 
from termination

	Year 10 	***% for *** years 
from termination
  



          The
reporting, timing for payment, currency and related obligations of PediatRx
shall be the same as those applicable to Apricus under Article 5 mutatis
mutandis.

***Confidential Information, indicated by [***], has been
omitted by this filing and filed separately with the Securities and Exchange
Commission. 




ARTICLE 8 
REPRESENTATIONS AND WARRANTIES 

          Section
8.1      Representations and Warranties of
PediatRx 

          PediatRx
hereby represents and warrants to Apricus as of the date hereof as follows: 

                    (a)     
Organization. PediatRx (i) is a corporation duly organized, validly
existing and in good standing under the laws of the state of Nevada, and (ii)
has all necessary corporate power and corporate authority to own its properties
and to conduct its business, as currently conducted. 

                    (b)      Authorization.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby are within the corporate power of PediatRx,
have been duly authorized by all necessary corporate proceedings of PediatRx,
and this Agreement has been duly executed and delivered by PediatRx. 

                    (c)     
No Conflict. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby in accordance with all
applicable terms and conditions hereof do not: (i) conflict with or result in a
breach of any provision of PediatRx’s organizational documents; (ii) result in a
material breach of any material agreement to which PediatRx is party (subject to
Section 14.11); (iii) result in a violation of any Order to which PediatRx is
subject; (iv) except as expressly contemplated by this Agreement, require
PediatRx to obtain any material approval or consent from any Governmental
Authority or Third Party other than those consents and approvals which have been
obtained prior to the date hereof; or (v) violate any Legal Requirement
applicable to PediatRx in any material respect. 

                    (d)      Enforceability.
This Agreement constitutes the valid and binding obligation of PediatRx,
enforceable against PediatRx in accordance with its terms, subject to
bankruptcy, reorganization, insolvency and other similar laws affecting the
enforcement of creditors’ rights in general and to general principles of equity
(regardless of whether considered in a proceeding in equity or an action at
law). 

                    (e)      Broker.
PediatRx has not employed any broker, finder, or agent with respect to this
Agreement or the transactions contemplated hereby. 

                    (f)      PediatRx
Intellectual Property. To the knowledge of PediatRx, the Manufacture,
Promotion, importation, distribution and sale of Product in the Territory in
accordance with this Agreement will not infringe any patents, trademarks or
other intellectual property rights of any Third Party; provided, that PediatRx
makes no representation as to the Apricus Trademarks. PediatRx has the right,
power and authority to grant the licenses granted by it hereunder. PediatRx and
its Affiliates own or Control no patents or patent applications as of the
Effective Date, a license to which (with respect to patent applications, if
patents are issued) is necessary for Apricus to Promote, import, distribute or
sell Product in the Territory or Manufacture Product for importation,
distribution or sale in the Territory. All trademarks and other intellectual
property rights used by PediatRx to Promote, import, distribute or sell Product
in the Territory or Manufacture Product for importation, distribution or sale in
the Territory prior to the Effective Date are included in the PediatRx
Trademarks and Technology licensed to Apricus hereunder. PediatRx has not received any written claim
or demand from any Third Party, and to the knowledge of PediatRx, Therapex has
not received any written claim or demand from any Third Party, alleging that any
infringement, violation or misappropriation of such Third Party’s intellectual
property rights has occurred as a result of the Manufacture, Promotion,
importation, distribution or sale of any Product in the Territory. PediatRx is
not aware of any actual, alleged or threatened infringement, violation or
misappropriation by a Third Party of any PediatRx intellectual property rights
covering a Product or its uses. 




                    (g)      Litigation.
There is no litigation, arbitration proceeding, governmental investigation,
action or claim of any kind, pending or, to the knowledge of PediatRx,
threatened, by or against PediatRx or any of its Affiliates relating to the
Product or which would reasonably be expected to materially affect PediatRx’s
ability to perform its obligations hereunder, or Apricus’ ability to exercise
its rights hereunder, nor, to PediatRx’s knowledge, is any litigation,
arbitration proceeding, governmental investigation, action or claims of any
kind, pending or, to the knowledge of PediatRx, threatened, by or against
Therapex or its Affiliates relating to the Product. PediatRx is not a party to
any litigation regarding any claim of product liability or damage to person
(including death) or property resulting from the use or consumption of a Product
in the Territory, nor has PediatRx received any written communication
threatening any such litigation. 

                    (h)      Documentation.
PediatRx has made available to Apricus copies of substantially all clinical data
and reports, regulatory correspondence and filings, medical information,
intellectual property, manufacturing and quality information related to the
Product in PediatRx’s possession that have been requested by Apricus in the
course of Apricus’ due diligence investigation of the Product. 

                    (i)      Generic
Drug Act. Pursuant to the Generic Drug Enforcement Act of 1992, 21 U.S.C. §
335a, as may be amended or supplemented (the “Generic Drug Act”), 

                              (i)      none
of PediatRx, its Affiliates, or any Person under its direction or control is
currently debarred by the FDA under the Generic Drug Act; 

                              (ii)      none
of PediatRx, its Affiliates, or any Person under its direction or control is
currently using or will use in any capacity in connection with the Product any
Person that is debarred by FDA under the Generic Drug Act; and 

                              (iii)     
there have been no convictions of PediatRx, its Affiliates, or any Person under
its direction or control for any of the types of crimes set forth in the Generic
Drug Act within the five years prior to the Effective Date. 

                    (j)     
Legal Requirements. None of PediatRx, its Affiliates, or any Person under
its direction or control is currently excluded from a federal or state health
care program under Sections 1128 or 1156 of the Social Security Act, 42 U.S.C.
§§ 1320a-7, 1320c-5 as may be amended or supplemented. None of PediatRx, its
Affiliates, or Person under its direction or control is otherwise currently
excluded from contracting with the federal government. None of PediatRx, its
Affiliates, or Person under its direction or control is otherwise currently
excluded, suspended, or debarred from any federal or state program. PediatRx
shall immediately notify Apricus if, at any time during the Term, PediatRx, its
Affiliates, or any Person under its direction or control is convicted of an
offense that would subject it or Apricus to exclusion, suspension or debarment
from any federal or state program. To PediatRx’s knowledge, the Manufacture,
Promotion, importation, distribution and sale of the Product in the Territory
has been in material compliance with all Legal Requirements. 




                    (k)     
Product ANDA. PediatRx has not committed fraud in relation to the filing
or acquisition of the Product ANDA or used unfair methods of competition in
connection with such filing or acquisition or maintenance, including, in either
case, in connection with any data supplied by PediatRx to the FDA. The parties
acknowledge that a breach of this representation is a material failure of a
material obligation and is not subject to cure. To PediatRx’s knowledge, the
data regarding the efficacy, safety, chemistry, manufacturing and control of the
Product contained in the Product ANDA and other regulatory filings submitted to
the FDA in support of obtaining and maintaining marketing approval of the
Product are complete and accurate in all material respects. To PediatRx’s
knowledge, the Product ANDA and other regulatory filings submitted to the FDA in
support of marketing approval for the Product do not contain any material
misstatement of a material fact related to safety or efficacy nor omit to state
any material fact in PediatRx’s possession related to safety or efficacy of the
Product. PediatRx has not received any written communication from FDA stating
that any Post-Marketing Development activities are required by the FDA as a
condition to maintenance of the Product ANDA. PediatRx has not received notice
from any Governmental Authority (i) requiring or recommending any recall, market
withdrawal or other corrective action with respect to Product or (ii) suspending
or revoking, or threatening to suspend or revoke, any Regulatory Approval
relating to Product; nor has any Third Party notified PediatRx of receipt of any
such notice from any Governmental Authority relating to Product. PediatRx has no
plans to initiate any recall, market withdrawal or other corrective action with
respect to Product. 

                    (l)     Third
Party Agreements. PediatRx is not in material breach of any Assigned
Agreement, and has not submitted to any Third Party any notice (written or oral)
to the effect that the Third Party is in breach of any such Assigned Agreement.
PediatRx has not received from a Third Party any notice (written or oral) to the
effect that PediatRx is in breach of any Assigned Agreement. To PediatRx’s
knowledge, no Third Party counterparty to any Assigned Agreement is in breach of
the applicable Assigned Agreement. Each Assigned Agreement is legal, valid,
binding, enforceable and in full force and effect in all material respects
subject to bankruptcy, reorganization, insolvency and other similar laws
affecting the enforcement of creditors’ rights in general and to general
principles of equity (regardless of whether considered in a proceeding in equity
or an action at law). True, correct and complete copies of the Assigned
Agreements have been delivered to Apricus, including all waivers, modifications
and amendments. Other than the Retained Contracts, the Assigned Agreements
represent all agreements to which PediatRx is a party relating to the
Manufacture, Promotion, importation, distribution or sale of Product in the
Territory. 

                    (m)     
Inventory.

                              (i)     
Except as disclosed in Schedule E, PediatRx has no inventory of Product as of
the Effective Date. 




                              (ii)      Since
January 1, 2012, PediatRx has not (A) materially altered its distribution
practices or terms with respect to the Product, (B) altered its activities and
practices with respect to inventory levels of the Product maintained at the
wholesale, chain, institutional or retail levels in any material respect, or (C)
experienced abnormally high levels of returns of the Product when compared to
historical norms. 

                              (iii)     
Since January 1, 2012, no firm orders have been placed or deemed to have been
placed for Product or API other than the purchase order placed with Therapex as
detailed in the Term Sheet for which Apricus has agreed to assume the payment
liability.

          Section
8.2      Representations and Warranties of
Apricus 

          Apricus
hereby represents and warrants to PediatRx as of the date hereof as follows:


                    (a)      Organization.
Apricus (i) is a corporation duly organized, validly existing and in good
standing under the laws of the state of Nevada, and (ii) has all necessary
corporate power and corporate authority to own its properties and to conduct its
business, as currently conducted. 

                    (b)     
Authorization. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby are within the corporate
power of Apricus, have been duly authorized by all necessary corporate
proceedings of Apricus, and this Agreement has been duly executed and delivered
by Apricus. 

                    (c)     
No Conflict. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby in accordance with all
applicable terms and conditions hereof do not: (i) conflict with or result in a
breach of any provision of Apricus’ organizational documents; (ii) result in a
material breach of any material agreement to which Apricus is party; (iii)
result in a violation of any Order to which Apricus is subject; (iv) require
Apricus to obtain any material approval or consent from any Governmental
Authority or Third Party other than those consents and approvals which have been
obtained prior to the date hereof; or (v) violate any Legal Requirement
applicable to Apricus in any material respect. 

                    (d)      Enforceability.
This Agreement constitutes the valid and binding obligation of Apricus,
enforceable against Apricus in accordance with its terms, subject to bankruptcy
reorganization, insolvency and other similar laws affecting the enforcement of
creditors’ rights in general and to general principles of equity (regardless of
whether considered in a proceeding in equity or an action at law). 

                    (e)      Broker.
Apricus has not employed any broker or finder with respect to this Agreement or
the transactions contemplated hereby. 

                    (f)      Generic
Drug Act. Pursuant to the Generic Drug Act, 

                              (i)      none
of Apricus, its Affiliates, or any Person under its direction or control is
currently debarred by the FDA under the Generic Drug Act; 




                              (ii)     
none of Apricus, its Affiliates, or any Person under its direction or control is
currently using or will use in any capacity in connection with the Product any
Person that is debarred by FDA under the Generic Drug Act; and 

                              (iii)      there
have been no convictions of Apricus, its Affiliates, or any Person under its
direction or control for any of the types of crimes set forth in the Generic
Drug Act within the five years prior to the Effective Date. 

                    (g)      Legal
Requirements. None of Apricus, its Affiliates, or any Person under its
direction or control is currently excluded from a federal or state health care
program under Sections 1128 or 1156 of the Social Security Act, 42 U.S.C. §§
1320a-7, 1320c-5 as may be amended or supplemented. None of Apricus, its
Affiliates, or any Person under its direction or control is otherwise currently
excluded from contracting with the federal government. None of Apricus, its
Affiliates, or Person under its direction or control is otherwise currently
excluded, suspended, or debarred from any federal or state program. Apricus
shall immediately notify PediatRx if, at any time during the Term, Apricus, its
Affiliates, or any Person under its direction or control is convicted of an
offense that would subject it or PediatRx to exclusion, suspension, or debarment
from any federal or state program. 

          Section
  8.3      Warranty Disclaimer

          EXCEPT
AS EXPRESSLY PROVIDED HEREIN, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, WITH REGARD TO THE PRODUCT AND THIS AGREEMENT, INCLUDING THE
WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.


ARTICLE 9 
INTELLECTUAL PROPERTY MATTERS 

          Section
9.1      Intellectual Property Prosecution
and Maintenance 

          PediatRx
shall use commercially reasonable efforts to prosecute and maintain the PediatRx
Product Trademarks. PediatRx shall keep Apricus reasonably informed regarding
material developments relating to the prosecution, maintenance or enforcement of
PediatRx’s intellectual property rights related to any Product inside the
Territory that would reasonably be expected to have a material impact on
PediatRx’s intellectual property rights related to the Product in the Territory.


          Section
  9.2      Infringement

                    (a)     
If either party shall learn of a claim or assertion that the Manufacture,
Promotion, importation, distribution or sale of a Product in the Territory
infringes or otherwise violates the intellectual property rights of any Third
Party or that any Third Party violates the intellectual property rights owned or
Controlled by (i) PediatRx in the PediatRx Trademarks in the Territory or (ii)
Apricus in the Apricus Trademarks in the Territory, then the party becoming so
informed shall promptly, but in all events within fifteen (15) days thereof,
notify the other party to this Agreement of the claim or assertion. 




                    (b)      If
warranted in the opinion of PediatRx, after consultation with Apricus, PediatRx
shall have the right to take such legal action (“Enforcement Action”) as
is advisable in PediatRx’s opinion to restrain infringement of the PediatRx
Trademarks in the Territory. PediatRx will have the right to institute the
Enforcement Action in its own name using counsel of its choice and, except as
otherwise set forth in this Agreement, with the right to control the course of
such Enforcement Action. Apricus shall cooperate fully with, and as reasonably
requested by, PediatRx in any Enforcement Action, and PediatRx shall reimburse
Apricus for its out-of-pocket expenses incurred in providing such cooperation.
Apricus may be represented by counsel of its own selection at its own expense in
any Enforcement Action. PediatRx shall keep Apricus reasonably informed
regarding material developments relating to any Enforcement Action (including by
making its outside counsel available to participate in periodic status calls);
provided, however, that PediatRx shall obtain Apricus’ consent (which
Apricus will not unreasonably withhold) in advance of the grant of any license,
covenant not to sue, right of reference, right of supply, other intellectual
property right or other settlement in any Enforcement Action. If PediatRx elects
in writing not to bring or defend an Enforcement Action with respect to any
Product in the Territory within ninety (90) days following a notification
pursuant to Section 9.2(a), or if PediatRx fails to bring or defend an
Enforcement Action or take other reasonable action to protect the PediatRx
Product Trademarks in the Territory from such infringement, or to abate such
infringement, then Apricus shall have the right, at its sole discretion, to
institute an Enforcement Action in its own name using counsel of its choice, at
its own expense, and, except as otherwise set forth in this Agreement, with the
right to control the course of such Enforcement Action (the “Apricus Step-In
Rights”). PediatRx shall cooperate fully with, and as reasonably requested
by, Apricus in any such Enforcement Action, including joining such Enforcement
Action if necessary to maintain the Enforcement Action, and Apricus shall
reimburse PediatRx for its out-of-pocket expenses incurred in providing such
cooperation. PediatRx shall have the right to join and participate in the
Enforcement Action whether or not such joinder is requested by Apricus. Apricus
shall keep PediatRx reasonably informed regarding material developments relating
to any such Enforcement Action (including by making its outside counsel
available to participate in periodic status calls). PediatRx may be represented
by counsel of its own selection at its own expense in any Enforcement Action
brought by Apricus pursuant to the Apricus Step-In Rights. Any recovery received
by a party as a result of any Enforcement Action shall be used first to
reimburse the parties for their costs and expenses (including attorneys’ and
professional fees) incurred in connection with such Enforcement Action (and not
previously reimbursed). Any remaining amounts, shall be shared by the parties in
accordance with their then-current share of Net Operating Income. 

                    (c)     
If warranted in the opinion of Apricus, Apricus shall take such legal action as
is advisable in Apricus’ opinion to restrain such infringement of the Apricus
Trademarks. PediatRx shall cooperate fully with, and as requested by, Apricus in
Apricus’ attempt to restrain such infringement, and Apricus shall reimburse
PediatRx for its out-of-pocket expenses incurred in providing such cooperation.
PediatRx may be represented by counsel of its own selection at its own expense
in any suit or proceeding brought to restrain such infringement, but Apricus
shall have the right to control the suit or proceeding. 




ARTICLE 10 
INDEMNIFICATION; LIMITS ON LIABILITY


          Section
10.1      Indemnification 

                    (a)     
Indemnification by Apricus. Apricus hereby agrees to save, defend,
indemnify and hold harmless PediatRx, its Affiliates and their respective
officers, directors, employees, consultants and agents (the “PediatRx
Indemnitees”), from and against any and all losses, damages, liabilities,
expenses and costs, including reasonable legal expense and attorneys’ fees
(“Losses”), to which any PediatRx Indemnitee may become subject as a
result of any claim, demand, action or other proceeding by any Third Party to
the extent such Losses arise directly or indirectly out of: (i) the development,
Manufacture, Promotion, importation, distribution or sale of Product by or on
behalf of Apricus or any of its Affiliates or Third Party sublicensees; (ii) the
gross negligence or willful misconduct of any Apricus Indemnitee (defined
below); or (iii) the breach by Apricus of any warranty, representation, covenant
or agreement made by it in this Agreement; except, in each case, to the extent
such Losses result from (A) the gross negligence or willful misconduct of any
PediatRx Indemnitee, (B) the breach by PediatRx of any warranty, representation,
covenant or agreement made by it in this Agreement, (C) the Manufacture of any
Product by or on behalf of PediatRx or (D) any claim made by any Third Party
that the Manufacture, Promotion, importation, distribution or sale of Product by
or on behalf of PediatRx infringed or misappropriated the patent, trademark or
other intellectual property rights of such Third Party, except with respect to
any such claim relating to the Apricus Trademarks. 

                    (b)     
Indemnification by PediatRx. PediatRx hereby agrees to save, defend,
indemnify and hold harmless Apricus, its Affiliates and their respective
officers, directors, employees, consultants and agents (the “Apricus
Indemnitees”), from and against any and all Losses to which any Apricus
Indemnitee may become subject as a result of any claim, demand, action or other
proceeding by any Third Party to the extent such Losses arise directly or
indirectly out of: (i) the development, Manufacture, Promotion, importation,
distribution or sale of Product or by or on behalf of PediatRx or any of its
Affiliates or Third Party licensees; or (ii) the gross negligence or willful
misconduct of any PediatRx Indemnitee; (iii) the breach by PediatRx of any
warranty, representation, covenant or agreement made by it in this Agreement; or
(iv) any claim made by any Third Party that the Manufacture, Promotion,
importation, distribution or sale of the Product by PediatRx infringed or
misappropriated the patent, trademark, or other intellectual property rights of
such Third Party, except with respect to any claim relating to the Apricus
Trademarks; except, in each case, to the extent such Losses result from (A) the
gross negligence or willful misconduct of any Apricus Indemnitee, (B) the breach
by Apricus of any warranty, representation, covenant or agreement made by it in
this Agreement or (C) the Manufacture of any Product by or on behalf of Apricus.


                    (c)      Procedure.
In the event a Party seeks indemnification under Section 10.1(a) or Section
10.1(b), it shall inform the other party (the “Indemnifying Party”) of a
claim as soon as reasonably practicable after such party (the “Indemnified
Party”) receives notice of the claim (it being understood and agreed,
however, that the failure by an Indemnified Party to give notice of a claim as
provided in this Section 10.1(c) shall not relieve the Indemnifying Party of its
indemnification obligation under this Agreement except and only to the extent
that such Indemnifying Party is actually damaged as a result of such
failure to give notice), shall permit the Indemnifying Party to assume direction
and control of the defense of the claim (including the right to settle the claim
solely for monetary consideration), and shall cooperate as requested (at the
expense of the Indemnifying Party) in the defense of the claim. The Indemnifying
Party shall not agree to any settlement of such action, suit, proceeding or
claim or consent to any judgment in respect thereof that does not include a
complete and unconditional release of the Indemnified Party from all liability
with respect thereto, that imposes any liability or obligation on the
Indemnified Party (except monetary damages to be satisfied in full by the
Indemnifying Party) or that acknowledges fault by the Indemnified Party; in each
case, without the prior written consent of the Indemnified Party. 




          Section
  10.2      Limitation of Damages

          The
indemnification obligations of a party under Section 10.1 and the liability of a
party for all damages whatsoever arising out of or related to this Agreement and
the instruments and agreements contemplated hereby and the transactions
contemplated hereby and thereby shall be limited as follows: 

	 	(i) 	
      Cap. The aggregate liability of a party shall not
      exceed the amounts actually received by PediatRx from Apricus in the ***
      (***) month period prior to the date upon which the relevant claim
      arises.

	 	 	 
	 	(ii) 	
      Basket. A party shall only be liable if and to the
      extent that an individual claim exceeds *** Dollars (US$***).

	 	 	 
	 	(iii) 	
      Insurance. A party shall not be liable to the
      extent an Indemnified Party or the other party receives payment from any
      insurer or other Third Party.

	 	 	 
	 	(iv) 	
      Failure to Mitigate. A party shall not be liable
      to the extent that an Indemnified Party or the other party had the
      commercially reasonable opportunity, but failed, in good faith to mitigate
      such damages.

	 	 	 
	 	(v) 	
      Willful Misconduct. A party shall not be liable to
      the extent that an Indemnified Party or the other party caused, by gross
      negligence or willful misconduct, the claim or loss.

	 	 	 
	 	(vi) 	
      No Consequential Damages. NEITHER APRICUS NOR
      PEDIATRX (WHICH FOR THE PURPOSES OF THIS Section 10.2 SHALL INCLUDE THEIR
      RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) SHALL
      HAVE ANY LIABILITY TO THE OTHER FOR ANY PUNITIVE DAMAGES, SPECIAL,
      INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING LOST SALES OR
      LOST PROFITS, RELATING TO OR ARISING FROM THIS AGREEMENT, EVEN IF SUCH
      DAMAGES MAY HAVE BEEN FORESEEABLE; PROVIDED THAT
SUCH LIMITATION SHALL NOT APPLY IN THE CASE OF EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER Section 10.1 OR IN THE CASE OF FRAUD OR WILLFUL MISCONDUCT. 



***Confidential Information, indicated by [***], has been
omitted by this filing and filed separately with the Securities and Exchange
Commission. 




ARTICLE 11 
CONFIDENTIALITY AND PUBLICITY 

          Section
11.1      Proprietary Information


          Pursuant
to this Agreement, a party receiving Proprietary Information from the other,
directly or indirectly, will treat such Proprietary Information as confidential,
will use such Proprietary Information only for the purposes of this Agreement
and will not disclose, and will take all reasonable precautions to prevent the
disclosure of, such Proprietary Information to (a) any of its officers,
directors, managers, equity holders, employees, agents, representatives,
Affiliates or consultants, except those who need to know such Proprietary
Information and who are bound by a like obligation of confidentiality or (b) to
Third Parties. 

          Section
  11.2      Disclosures Required by Law

          In
the event the recipient party is required under applicable Legal Requirements to
disclose Proprietary Information of the disclosing party to any Governmental
Authority to obtain any Regulatory Approval for the Product, is required to
disclose Proprietary Information in connection with bona fide legal process
(including in connection with any bona fide dispute hereunder) or is required to
disclose Proprietary Information under the rules of the securities exchange upon
which its securities are traded, the recipient party may do so only if it limits
disclosure to that purpose after giving the disclosing party prompt written
notice of any instance of such a requirement in reasonable time for the
disclosing party to attempt to object to or to limit such disclosure. In the
event of disclosures required under applicable Legal Requirements, the recipient
party shall cooperate with the disclosing party as reasonably requested thereby.


          Section
  11.3      Publicity

          The
parties have agreed upon the form and content of a joint press release to be
issued by the parties promptly following the execution of this Agreement. Once
such press release or any other written statement is approved for disclosure by
both parties, either party may make subsequent public disclosure of the contents
of such statement without the further approval of the other party. Any other
publicity, news release, public comment or other public announcement, whether to
the press, to stockholders, or otherwise, relating to this Agreement, shall
first be reviewed and approved by both parties, except no such approval shall be
required for such publicity, news release, public comment or other public
announcement which, in accordance with the advice of legal counsel to the party
making such disclosure, is required by law or for appropriate market disclosure;
provided, however, that each party shall be entitled to refer publicly to the
relationship of the parties reflected in this Agreement in a manner that is
consistent with the joint press release issued by the parties. For clarity, any
party making any announcement which is required by law will, unless prohibited
by law, give the other party an opportunity to review the form and content of
such announcement and comment before it is made. The parties shall work together
to coordinate filings with governmental agencies, including the United States Securities and Exchange Commission,
as to the contents and existence of this Agreement as the parties shall
reasonably deem necessary or appropriate and each party shall provide the other
party an opportunity to comment on any proposed filings, including redactions
thereto. 




          Section
  11.4      Survival

          The
provisions of this Article 11 shall survive termination of this Agreement and
shall remain in effect until a date five (5) years after the Term of this
Agreement. 

ARTICLE 12 
NOTICES 

          Section
12.1      Notices 

          All
notices required or permitted hereunder shall be given in writing and sent by
facsimile transmission (with a copy sent by first-class mail), or mailed postage
prepaid by certified or registered mail (return receipt requested), or sent by a
nationally recognized express courier service, or hand-delivered at the
following address or such other address provided by a party by written notice in
accordance with this section: 

If to Apricus: 

Apricus Biosciences, Inc. 
11975 El
Camino Real, Suite 300 
San Diego, California 92130 
Attention: General
Counsel 

  Fax No.: (858) 866-0482 

With a copy to (which shall not
constitute notice hereunder): 

Duane Morris, LLP 
101 W. Broadway,
Suite 900 
San Diego, California 92101 
Attention: David A. Charapp


  Fax No.: (619) 933-3283 

If to PediatRx: 

Life Science Legal 
214 S. Spring
Street 
Independence, MO 64050 
Attention: Randall Pratt 

  Fax No.: (816) 461-6902 

With copies sent via e-mail (which
shall not constitute notice hereunder): 





	 	Dr. Cameron Durrant 	Email : cdurrant@pediatrx.com
  
	 	  	Email : camerondurrant@yahoo.com
    
	 	  	 
	 	Mr. David Tousley 	Email : dtousley@pediatrx.com
  
	 	  	Email : davidtousley@yahoo.com
  


          All
notices shall be deemed made upon receipt by the addressee as evidenced by the
applicable written receipt. 

ARTICLE 13 
INSURANCE 

          Section
13.1      Insurance 

          During
the Term and for a period of *** (***) years after any expiration or termination
of this Agreement, each party shall maintain (i) a commercial general liability
insurance policy or policies with minimum limits of $*** per occurrence and $***
in the aggregate on an annual basis and (ii) a product liability insurance
policy or policies with minimum limits of $*** per occurrence and $*** in the
aggregate on an annual basis. Upon request, each party shall provide
certificates of insurance to the other evidencing the coverage specified herein.
Neither party’s liability to the other is in any way limited to the extent of
its insurance coverage. 

ARTICLE 14 
MISCELLANEOUS 

          Section
14.1      Headings 

          The
titles, headings or captions and paragraphs in this Agreement are for
convenience only and do not define, limit, extend, explain or describe the scope
or extent of this Agreement or any of its terms or conditions and therefore
shall not be considered in the interpretation, construction or application of
this Agreement. 

          Section
  14.2      Severability

          In
the event that any of the provisions or a portion of any provision of this
Agreement is held to be invalid, illegal, or unenforceable by a court of
competent jurisdiction or a governmental authority, such provision or portion of
provision will be construed and enforced as if it had been narrowly drawn so as
not to be invalid, illegal, or unenforceable, and the validity, legality, and
enforceability of the enforceable portion of any such provision and the
remaining provisions will not be adversely affected thereby. 

          Section
  14.3      Entire Agreement

          This
Agreement, together with the schedules hereto, all of which are incorporated by
reference, contains all of the terms agreed to by the parties regarding the
subject matter hereof and supersedes any prior agreements, understandings, or
arrangements between them, whether oral or in writing. 

***Confidential Information, indicated by [***], has been
omitted by this filing and filed separately with the Securities and Exchange
Commission. 




          Section
  14.4      Amendments

          This
Agreement may not be amended, modified, altered, or supplemented except by means
of a written agreement or other instrument executed by both of the parties
hereto. No course of conduct or dealing between the parties will act as a
modification or waiver of any provisions of this Agreement. 

          Section
  14.5      Counterparts; Execution

          This
Agreement may be executed in any number of counterparts, each of which will be
deemed an original as against the party whose signature appears thereon, but all
of which taken together will constitute but one and the same instrument.
Signatures to this Agreement transmitted by facsimile, by email in “portable
document format” (“.pdf”) or by any other electronic means intended to preserve
the original graphic and pictorial appearance of this Agreement shall have the
same effect as physical delivery of the paper document bearing original
signature. 

          Section
  14.6      Waiver

          The
failure of either party to enforce or to exercise, at any time or for any period
of time, any term of or any right arising pursuant to this Agreement does not
constitute, and will not be construed as, a waiver of such term or right, and
will in no way affect that party’s right later to enforce or exercise such term
or right. 

          Section
  14.7      Force Majeure

          In
the event of any failure or delay in the performance by a party of any provision
of this Agreement due to acts beyond the reasonable control of such party (such
as, for example, fire, explosion, strike or other difficulty with workmen,
shortage of transportation equipment, accident, act of God, declared or
undeclared wars, acts of terrorism, or compliance with or other action taken to
carry out the intent or purpose of any law or regulation, but not any failure of
such party to perform under a Third Party Agreement) (a “Force Majeure
Event”), then such party shall have such additional time to perform as shall
be reasonably necessary under the circumstances. In the event of such failure or
delay, the affected party will use its diligent efforts, consistent with sound
business judgment and to the extent permitted by law, to correct such failure or
delay as expeditiously as possible. In the event that a party is unable to
perform by a reason described in this Section 14.7, its obligation to perform
under the affected provision of this Agreement shall be suspended during such
time of nonperformance. 

          Neither
party shall be liable hereunder to the other party nor shall be in breach for
failure to perform its obligations caused by a Force Majeure Event. In the case
of any such event, the affected party shall promptly, but in no event later than
ten (10) days of its occurrence, notify the other party stating the nature of
the condition, its anticipated duration and any action being taken to avoid or
minimize its effect. Furthermore, the affected party shall keep the other party
informed of the efforts to resume performance. After sixty (60) days of such
inability to perform, the parties agree to meet and in good faith discuss
how to proceed. In the event that the affected party is prevented from
performing its obligations pursuant to this Section 14.7 for a period of six (6)
months, the other party shall have the right to terminate this Agreement
pursuant to the provisions of Section 7.4. 




          Section
  14.8      Successors and Assigns

          Subject
to Section 14.9, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns
permitted under this Agreement. 

          Section
  14.9      Assignment

          This
Agreement and the rights granted herein shall not be assignable (or otherwise
transferred) by either party hereto without the prior written consent of the
other party. Any attempted assignment without consent shall be void.
Notwithstanding the foregoing, a party may transfer, assign or delegate its
rights and obligations under this Agreement without consent to (a) an Affiliate
reasonably capable of performing such party’s obligations under this Agreement
or (b) a successor to all or substantially all of the business or assets of the
assigning party to which this Agreement relates, whether by sale, merger,
consolidation, acquisition, transfer, operation of law or otherwise. Neither
party shall knowingly engage any Third Party appearing on the FDA’s debarment
list or the list of excluded individuals/entities of the Office of Inspector
General of the Department of Health and Human Services to perform, or assist
such party in the performance of, its obligations under this Agreement, and each
party shall review each such list prior to engaging any such Third Party. 

          Section
  14.10    Construction

          The
parties acknowledge and agree that: (a) each party and its representatives have
reviewed and negotiated the terms and provisions of this Agreement and have
contributed to its revision; and (b) the terms and provisions of this Agreement
will be construed fairly as to each party hereto and not in favor of or against
either party regardless of which party was generally responsible for the
preparation or drafting of this Agreement. Unless the context of this Agreement
otherwise requires: (i) words of any gender include each other gender; (ii)
words using the singular or plural number also include the plural or singular
number, respectively; (iii) the terms “hereof,” “herein,” “hereby,” and
derivative or similar words refer to this entire Agreement; (iv) the terms
“Article,” “Section,” “Exhibit,” “Schedule,” or “clause” refer to the specified
Article, Section, Exhibit, Schedule, or clause of this Agreement; (v) “or” is
disjunctive but not necessarily exclusive; and (vi) the term “including” or
“includes” means “including without limitation” or “includes without
limitation.” Whenever this Agreement refers to a number of days, such number
shall refer to calendar days unless business days are specified. 

          Section
  14.11    Consents to Assignment

          Notwithstanding
anything to the contrary contained in this Agreement, to the extent that the
transfer or assignment by PediatRx of any Assigned Agreement as set forth herein
would require any Third Party authorizations, approvals, consents or waivers
(collectively, the “Consent”), then PediatRx’s obligation to transfer or assign
such Assigned Agreement shall be contingent upon PediatRx’s receipt of such Consent. The parties
shall cooperate to obtain promptly such Consent. Pending receipt of any such
Consent, the parties shall use their commercially reasonable efforts to
implement an alternative arrangement to permit Apricus to receive substantially
similar rights and for Apricus to assume substantially similar obligations under
any such Assigned Agreement as if such impediment to assignment or transfer did
not exist. PediatRx shall not amend, modify or terminate any Assigned Agreement
that is to be assigned to Apricus under this Agreement without Apricus’ prior
written consent. 




          Section
  14.12    Governing Law; Venue

          This
Agreement will be construed under and in accordance with, and governed in all
respects by, the laws of the State of California, without regard to its
conflicts of law principles. The parties hereto agree that all actions or
proceedings arising in connection with this Agreement shall be initiated and
tried exclusively in the local and federal courts located in San Diego County,
California. The aforementioned choice of venue is intended by the parties to be
mandatory and not permissive in nature, thereby precluding the possibility of
litigation between the parties with respect to or arising out of this Agreement
in any jurisdiction other than that specified in this section. Each party hereby
waives any right it may have to assert the doctrine of forum non conveniens or
similar doctrine or to object to venue with respect to any proceeding brought in
accordance with this section, and stipulates that the local and federal courts
located in San Diego County, California shall have personal jurisdiction and
venue over each of them for purposes of litigating any dispute, controversy or
proceeding arising out of or related to this Agreement. Each party hereby
authorizes and agrees to accept service of process sufficient for personal
jurisdiction in any action against it as contemplated by this section by
registered or certified mail, return receipt requested, postage prepaid to its
address for the giving of notices as set forth in this Agreement, or in the
manner set forth in Article 12 of this Agreement for the giving of notice. Any
final judgment received against a party in any action or proceeding shall be
conclusive as to the subject of such final judgment and may be enforced in other
jurisdictions in any manner provided by law. 

          Section
  14.13    Equitable Relief

          Each
party acknowledges that a breach by it of the provisions of this Agreement may
not reasonably or adequately be compensated in damages in an action at law and
that such a breach may cause the other party irreparable injury and damage. By
reason thereof, each party agrees that the other party is entitled to seek, in
addition to any other remedies it may have under this Agreement or otherwise,
preliminary and permanent injunctive and other equitable relief to prevent or
curtail any breach of this Agreement by the other party; provided, however, that
no specification in this Agreement of a specific legal or equitable remedy will
be construed as a waiver or prohibition against the pursuing of other legal or
equitable remedies in the event of such a breach. Each party agrees that the
existence of any claim, demand, or cause of action of it against the other
party, whether predicated upon this Agreement, or otherwise, will not constitute
a defense to the enforcement by the other party, or its successors or assigns,
of the covenants contained in this Agreement. 




          Section
14.14    Relationship Between Parties 

          The
parties hereto are acting and performing as independent contractors, and nothing
in this Agreement creates the relationship of partnership, joint venture, sales
agency, or principal and agent. Neither party is the agent of the other, and
neither party may hold itself out as such to any other party. 

          Section
14.15    Section 356(n) 

          The
parties acknowledge and agree that, to the extent Section 365(n) of the United
States Bankruptcy Code applies to this Agreement, the non-insolvent party may
elect to retain and exercise the rights granted to it hereunder with respect to
the intellectual property owned or controlled by the insolvent party, including
the authority to Commercialize the Product under the ANDA and the license rights
under the Technology and PediatRx Trademarks. 

[Signature page follows] 




          IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate on the day and year first above written. 

APRICUS BIOSCIENCES, INC. 

 

/s/ Bassam Damaj 
By:
    Bassam Damaj, Ph.D. 
Its:    
President and Chief Executive Officer 

  Date:  February 21, 2012 

PEDIATRX INC. 

 

/s/ Cameron Durrant

By:      Cameron Durrant, MD, MBA

Its:      President and Chief Executive Officer


  Date:  February 21, 2012