Unassociated Document


     

    
      EXHIBIT
10.30

       

      WARRANT AGENT
AGREEMENT

       

      WARRANT
AGENT AGREEMENT, dated as of September 17, 2010 (“Agreement”), between
Apricus Biosciences, Inc., a Nevada corporation (the “Company”), and Wells
Fargo Bank, N.A. (the “Warrant
Agent”).

       

      R E C I T
A L S

       

      


      WHEREAS,
pursuant to an effective registration statement, SEC File No. 333-169132,
the Company wishes to issue an aggregate of up to 1,728,882 Units, each unit
consisting of (i) three shares of common stock, par value $0.001 (the “Common Stock”), and
(ii) one Common Stock Warrant (each a “Warrant”), entitling
the holder of each Warrant (the “Holders” which term
shall include a Holder’s transferees, successors and assigns) to purchase one
share of Common Stock upon the terms and subject to the conditions set forth
herein and in the Warrant Certificate; and

       

      WHEREAS,
the Company wishes the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing so to act, in connection with the issuance,
registration, transfer, exchange, exercise and replacement of the Warrants and,
in the Warrant Agent’s capacity as the Company’s transfer agent and registrar,
the delivery of the Warrant Shares;

       

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

       

      Section
1.               Certain
Definitions.  For purposes of this Agreement, the following
terms have the meanings indicated:

       

      (a)           “Business Day” means
any day other than a Saturday, Sunday or a day on which The Nasdaq Stock Market
is authorized or obligated by law or executive order to close.

       

      (b)           “Close of Business” on
any given date means 5:00 p.m., New York City time, on such date; provided, however, that if such
date is not a Business Day it means 5:00 p.m., New York City time, on the
next succeeding Business Day.

       

      (c)           “Exercise Notice”
means with respect to the exercise of a Warrant, a form of election to purchase
Common Stock in substantially the form attached to the Warrant
Certificate.

       

      (d)           “Exercise Price”
means, depending on the context, the Initial Exercise Price or the adjusted
exercise price per share, adjusted from time to time as described in the Warrant
Certificate.

       

      (e)           “Initial Exercise
Price” means $2.268 per share of Common Stock.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

      

      (f)           “Person” means an
individual, sole proprietorship, corporation, partnership, limited liability
partnership, limited liability company, association, joint venture, trust,
unincorporated organization, estate or other mutual company, joint stock
company, estate, union, employee organization, bank, trust company, land trust
or other organization, whether or not a legal entity.

       

      (g)           “Warrant Certificate”
means a certificate in substantially the form attached as Exhibit A hereto
representing such number of Warrant Shares as is indicated on the face thereof,
provided that any reference to the delivery of a Warrant Certificate in this
Agreement shall include delivery of notice from the Depository or a Participant
(each as defined below) of the transfer or exercise of Warrants in the form of a
Book-Entry Warrant Certificate (as defined below).

       

      (h)           “Warrant Shares” means
the shares of Common Stock issuable upon exercise of the Warrants.

       

      Section
2.               Appointment of Warrant
Agent.  The Company hereby appoints the Warrant Agent to act as
agent for the Company in accordance with the terms and conditions set forth
herein and in the Warrant Certificate, and the Warrant Agent hereby accepts such
appointment. The Company may from time to time appoint such Co-Warrant Agents as
it may, in its sole discretion, deem necessary or desirable.

       

      Section
3.               Book-Entry Warrant
Certificates.

       

      (a)           The
Warrants shall be issuable in book entry (the “Book-Entry Warrant
Certificates”). All of the Warrants shall initially be represented by one
or more Book-Entry Warrant Certificates deposited with the Depository Trust
Company (“Depository”) and
registered in the name of Cede & Co., a nominee of the Depository. Ownership
of beneficial interests in the Warrants shall be shown on, and the transfer of
such ownership shall be effected through, records maintained by (i) the
Depository or its nominee for each Book-Entry Warrant Certificate or
(ii) institutions that have accounts with the Depository (such institution,
with respect to a Warrant in its account, a “Participant”).

       

      (b)           If
the Depository subsequently ceases to make its book-entry settlement system
available for the Warrants, the Company may instruct the Warrant Agent regarding
other arrangements for book-entry settlement. In the event that the Warrants are
not eligible for, or it is no longer necessary to have the Warrants available
in, book-entry form, the Warrant Agent shall provide written instructions to the
Depository to deliver to the Warrant Agent for cancellation each Book-Entry
Warrant Certificate, and the Company shall instruct the Warrant Agent to deliver
to each Holder a Warrant Certificate.

       

      Section
4.               Form of Warrant
Certificates.  The Warrant Certificate, together with the
Exercise Notice and the form of assignment to be printed on the reverse thereof,
shall be substantially in the form of Exhibit A
hereto.

       

      
        
          
          

        

        
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      Section
5.               Countersignature and
Registration.  The Warrant Certificates shall be executed on
behalf of the Company by its Chief Executive Officer or its President, either
manually or by facsimile signature. The Warrant Certificates shall be
countersigned by the Warrant Agent either manually or facsimile signature and
shall not be valid for any purpose unless so countersigned. In case any officer
of the Company who shall have signed any of the Warrant Certificates shall cease
to be such officer of the Company before countersignature by the Warrant Agent
and issuance and delivery by the Company, such Warrant Certificates,
nevertheless, may be countersigned by the Warrant Agent, issued and delivered
with the same force and effect as though the person who signed such Warrant
Certificate had not ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Warrant Certificate, shall be a proper
officer of the Company to sign such Warrant Certificate, although at the date of
the execution of this Warrant Agreement any such person was not such an
officer.

       

      The
Warrant Agent will keep or cause to be kept, at its office in South St. Paul,
MN, or at the office of one of its agents, books for registration and transfer
of the Warrant Certificates issued hereunder. Such books shall show the names
and addresses of the respective holders of the Warrant Certificates, the number
of Warrants evidenced on the face of each of such Warrant Certificate and the
date of each of such Warrant Certificate.   The Warrant Agent will
create a special account for the issuance of Warrant Certificates.

       

      Section
6.                Transfer, Split Up,
Combination and Exchange of Warrant Certificates; Mutilated, Destroyed, Lost or
Stolen Warrant Certificates.  Subject to the provisions of
Section 14 hereof and the last sentence of this first paragraph of
Section 6 and subject to compliance with any applicable securities laws,
the Warrant Certificate(s) or Book-Entry Warrant Certificate(s) and all rights
thereunder, are transferable, in whole or in part, upon surrender of the Warrant
Certificate(s) to be transferred at the principal office of the Company or the
Warrant Agent, provided that no such surrender is applicable to the Holder of a
Book-Entry Warrant Certificate, together with a written assignment of such
Warrant Certificate duly executed by the Holder or its agent or attorney and
funds sufficient to pay any transfer taxes payable upon the making of such
transfer.  Upon such surrender, and if required, such payment, the Company
shall execute and deliver a new Warrant Certificate(s) in the name of such
assignee or assignees and in the denomination or denominations specified in such
instrument of assignment to the Warrant Agent to be countersigned and delivered
to such assignee or assignees.  The Company shall execute and deliver a new
Warrant Certificate evidencing the portion of the Warrant Certificate not so
assigned to the Warrant Agent to be countersigned and delivered to the
assignor.  The original Warrant Certificate shall promptly be cancelled by
the Warrant Agent.  Any such transfer shall be promptly recorded in the
warrant register.

       

      The
Company and the Warrant Agent covenant that upon receipt by the Company or the
Warrant Agent of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of the Warrant Certificate or any stock certificate
relating to the Warrant Shares, and in case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to the Company or the Warrant
Agent and upon surrender and cancellation of such Warrant or stock certificate,
if mutilated, the Company will make and deliver a new Warrant Certificate or
stock certificate, of like  tenor and denomination, to the Warrant
Agent for delivery to the Holder in lieu of such Warrant Certificate or stock
certificate.

       

      
        
          
          

        

        
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      Section
7.              
Exercise of
Warrants.

       

      (a)           Subject
to the provisions of the applicable Warrant Certificate, the Holder of a Warrant
may exercise the Warrant at any time in whole or in part, at the option of the
Holder, upon surrender of the Warrant Certificate, if required, with the
executed Exercise Notice and payment of the Exercise Price, which may be made,
at the option of the holder, by certified or bank cashier’s check payable to the
Company, or a wire transfer of funds to an account designated by the Company, to
the Warrant Agent at the principal office of the Warrant Agent in South St.
Paul, MN or to the office of one of its agents as may be designated in writing
by the Warrant Agent. In the case of the Holder of a Book-Entry Warrant
Certificate, the Holder shall deliver the executed Exercise Notice and the
payment of the Exercise Price as described herein.  Upon receipt of an
Exercise Notice for a cashless exercise, the Warrant Agent will promptly deliver
a copy of the Exercise Notice to the Company and the Company shall confirm in
writing the number of Warrant Shares issuable in connection with the cashless
exercise. The Company shall calculate and transmit to the Warrant Agent within
one Business Day (and the Warrant Agent shall have no obligation under this
section to calculate) the number of Warrant Shares issuable in connection with
the cashless exercise.

       

      (b)           Upon
receipt of by the Warrant Agent of the Warrant Certificate, if applicable, the
Exercise Notice and the Exercise Price as described in
Section 7(a) above, the Warrant Agent shall use reasonable efforts to
cause to be delivered the Warrant Shares to or upon the order of the Holder of
such Warrant, registered in such name or names as may be designated by such
Holder by the date that is three (3) Business Days after the latest of
(A) the delivery to the Warrant Agent of the properly executed and
completed Exercise Notice, (B) surrender of the Warrant Certificate (but
only if required herein) and (C) payment of the Exercise Price and other
amounts as set forth herein or in the Warrant Certificate (including by cashless
exercise, if permitted) (such date, the “Warrant Share Delivery
Date”); provided, however, that the Warrant Agent shall not be liable to
the Company or the Holder for any damages arising out of the failure to deliver
the Warrant Shares or Warrant Certificates by the Warrant Share Delivery Date to
the extent that such failure relates to the acts or omissions of the Company, a
Holder or a Holder’s prime broker. If the Warrant Agent fails to deliver to the
Holder a certificate or the certificates representing the Warrant Shares (or, as
described below, to credit the account of the Holder’s prime broker through the
DWAC system) or Warrant Certificates by the Warrant Share Delivery Date, the
Holder will have the right to rescind such exercise. Notwithstanding the
foregoing, if the Company is then a participant in the Deposit Withdrawal at
Custodian (“DWAC”) system of the
Depository and either (A) there is an effective registration statement
permitting the issuance of the Warrant Shares to and resale of the Warrant
Shares by holder or (B) the Warrant is being exercised via cashless
exercise, the certificates for Warrant Shares shall be transmitted by the
Warrant Agent to the Holder by crediting the account of the Holder’s prime
broker with the Depository through its DWAC system.

       

      (c)           In
case the Holder of any Warrant Certificate shall exercise fewer than all
Warrants evidenced thereby, a new Warrant Certificate evidencing the number of
Warrants equivalent to the number of Warrants remaining unexercised shall be
issued by the Warrant Agent to the Holder of such Warrant Certificate or to his
duly authorized assigns, subject to the provisions of Sections 7 and 14
hereof.

       

      
        
          
          

        

        
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      Section
8.               Cancellation and Destruction
of Warrant Certificates.  All Warrant Certificates surrendered
for the purpose of exercise, transfer, split up, combination or exchange shall,
if surrendered to the Company or to any of its agents, be delivered to the
Warrant Agent for cancellation or in canceled form, or, if surrendered to the
Warrant Agent, shall be canceled by it, and no Warrant Certificates shall be
issued in lieu thereof except as expressly permitted by any of the provisions of
this Agreement or the Warrant Certificate. The Company shall deliver to the
Warrant Agent for cancellation and retirement, and the Warrant Agent shall so
cancel and retire, any other Warrant Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof.   Subject to
applicable laws and regulations, the Warrant Agent shall maintain in a
retrievable database electronic records of all canceled or destroyed warrant
certificates which have been canceled or destroyed by the Warrant
Agent.  The Warrant Agent shall maintain such electronic records or
physical records for the time period required by applicable law and
regulation.  Upon written request of the Company (and at the expense
of the Company), the Warrant Agent shall provide to the Company or its designee
copies of such electronic records or physical records relating to warrant
certificates canceled or destroyed by the Warrant Agent.

       

      Section
9.               Certain Representations;
Reservation and Availability of Shares of Common Stock.

       

      (a)           This
Agreement has been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery hereof by the Warrant Agent,
constitutes a valid and legally binding obligation of the Company enforceable
against the Company in accordance with its terms, and the Warrants and the
Warrant Shares upon issuance have been duly authorized, executed and issued by
the Company and, assuming due authentication thereof by the Warrant Agent
pursuant hereto, constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms and entitled to
the benefits hereof; in each case except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally or by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).

       

      (b)           The
Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued shares of Common Stock or its
authorized and issued shares of Common Stock held in its treasury, free from
preemptive rights, the number of shares of Common Stock that will be sufficient
to permit the exercise in full of all outstanding Warrants.

       

      Section
10.               Common Stock Record
Date.  Each person in whose name any certificate for shares of
Common Stock is issued (or to whose prime broker’s account is credited shares of
Common Stock through the DWAC system) upon the exercise of Warrants shall for
all purposes be deemed to have become the holder of record for the Common Stock
represented thereby on, and such certificate shall be dated, the date upon which
the Warrant Certificate evidencing such Warrants was duly surrendered (but only
if required herein) and payment of the Exercise Price (and any applicable
transfer taxes) and submission of the Exercise Notice was made; provided,
however, that if the date of such surrender (if applicable), payment and
submission is a date upon which the Common Stock transfer books of the Company
are closed, such person shall be deemed to have become the record holder of such
shares on, and such certificate shall be dated, the next succeeding day on which
the Common Stock transfer books of the Company are open.

       

      
        
          
          

        

        
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      Section
11.               Adjustment of Exercise
Price, Number of Shares of Common Stock or Number of
Warrants.  The Exercise Price, the number of shares covered by
each Warrant and the number of Warrants outstanding are subject to adjustment
from time to time as provided in the Warrant Certificate.

       

      Section
12.               Certification of Adjusted
Exercise Price or Number of Shares of Common Stock.  Whenever
the Exercise Price or the number of shares of Common Stock issuable upon the
exercise of each Warrant is adjusted as provided in the Warrant Certificate, the
Company shall (a) promptly prepare a certificate setting forth the Exercise
Price of each Warrant as so adjusted, and a brief statement of the facts
accounting for such adjustment, (b) promptly file with the Warrant Agent
and with each transfer agent for the Common Stock a copy of such certificate and
(c) instruct the Warrant Agent to mail a brief summary thereof to each
holder of a Warrant Certificate.

       

      Section
13.               Reclassification,
Consolidation, Purchase, Combination, Sale or Conveyance.  If,
at any time while the Warrants are outstanding, the Company shall effect any
Fundamental Transaction, as such term is used in the Warrant Certificate, the
Company shall instruct the Warrant Agent to mail by first class mail, postage
prepaid, to each Holder of a Warrant, written notice of the execution of any
such amendment, supplement or agreement. Any supplemented or amended agreement
entered into by the successor corporation or transferee shall provide for
adjustments as set forth in the Warrant Certificate. The Warrant Agent shall be
under no responsibility to determine the correctness of any provisions contained
in such agreement relating either to the kind or amount of securities or other
property receivable upon exercise of warrants or with respect to the method
employed and provided therein for any adjustments and shall be entitled to rely
upon the provisions contained in any such agreement. The provisions of this
Section 13 shall similarly apply to successive Fundamental
Transactions.

       

      Section
14.               Agreement of Warrant
Certificate Holders.  Every holder of a Warrant Certificate by
accepting the same consents and agrees with the Company and the Warrant Agent
and with every other holder of a Warrant Certificate that:

       

      (a)           the
Warrant Certificates are transferable only on the registry books of the Warrant
Agent if surrendered at the principal office of the Warrant Agent, duly endorsed
or accompanied by a proper instrument of transfer; and

       

      
        
          
          

        

        
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      (b)           the
Company and the Warrant Agent may deem and treat the person in whose name the
Warrant Certificate is registered as the absolute owner thereof and of the
Warrants evidenced thereby (notwithstanding any notations of ownership or
writing on the Warrant Certificates made by anyone other than the Company or the
Warrant Agent) for all purposes whatsoever, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.

       

      Section
15.               Concerning the Warrant
Agent.

       

      (a)           The
Company agrees to pay to the Warrant Agent reasonable compensation for all
services rendered by it hereunder and, from time to time, on demand of the
Warrant Agent, its reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this Agreement and the exercise
and performance of its duties hereunder.

       

      (b)           The
Company covenants and agrees to indemnify and to hold the Warrant Agent harmless
against any costs, expenses (including reasonable fees of its legal counsel),
losses or damages, which may be paid, incurred or suffered by or to which it may
become subject, arising from or out of, directly or indirectly, any claims or
liability resulting from its actions as Warrant Agent pursuant hereto; provided,
that such covenant and agreement does not extend to, and the Warrant Agent shall
not be indemnified with respect to, such costs, expenses, losses and damages
incurred or suffered by the Warrant Agent as a result of, or arising out of, its
breach of this Agreement or the Warrant Agent’s gross negligence, bad faith, or
willful misconduct.

       

      (c)           Promptly
after the receipt by the Warrant Agent of notice of any demand or claim or the
commencement of any action, suit, proceeding or investigation, the Warrant Agent
shall, if a claim in respect thereof is to be made against the Company, notify
the Company thereof in writing. The Company shall be entitled to participate at
its own expense in the defense of any such claim or proceeding, and, if it so
elects at any time after receipt of such notice, it may assume the defense of
any suit brought to enforce any such claim or of any other legal action or
proceeding. For the purposes of this Section 15, the terms “expense” or
“loss” mean any amount paid or payable to satisfy any claim, demand, action,
suit or proceeding, and all reasonable costs and expenses, including, but not
limited to, reasonable counsel fees and disbursements, paid or incurred in
investigating or defending against any such claim, demand, action, suit,
proceeding or investigation.

       

      (d)           The
Warrant Agent shall be responsible for any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability (collectively,
“Losses”), and shall indemnify and hold the Company harmless from and against
such Losses, arising out of or attributable to the Warrant Agent’s breach of
Section 7(b) of this Agreement.

       

      (e)           Promptly
after the receipt by the Company of notice of any demand or claim or the
commencement of any action, suit, proceeding or investigation, the Company
shall, if a claim in respect thereof is to be made against the Warrant Agent,
notify the Warrant Agent thereof in writing. The Warrant Agent shall be entitled
to participate at its own expense in the defense of any such claim or
proceeding, and, if it so elects at any time after receipt of such notice, it
may assume the defense of any suit brought to enforce any such claim or of any
other legal action or proceeding.  Warrant Agent agrees that any
Losses under Section 1(g) of the Warrant Certificate will be considered direct
damages under this Agreement for which Warrant Agent shall promptly remit
payment upon notice of any demand.

       

      
        
          
          

        

        
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      Section
16.               Purchase or Consolidation or
Change of Name of Warrant Agent.

       

      (a)           Any
corporation into which the Warrant Agent or any successor Warrant Agent may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Warrant Agent or any successor Warrant
Agent shall be party, or any corporation succeeding to the business of the
Warrant Agent or any successor Warrant Agent, shall be the successor to the
Warrant Agent under this Agreement without the execution or filing of any paper
or any further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Warrant Agent under
the provisions of Section 18. In case at the time such successor Warrant
Agent shall succeed to the agency created by this Agreement any of the Warrant
Certificates shall have been countersigned but not delivered, any such successor
Warrant Agent may adopt the countersignature of the predecessor Warrant Agent
and deliver such Warrant Certificates so countersigned; and in case at that time
any of the Warrant Certificates shall not have been countersigned, any successor
Warrant Agent may countersign such Warrant Certificates either in the name of
the predecessor Warrant Agent or in the name of the successor Warrant Agent; and
in all such cases such Warrant Certificates shall have the full force provided
in the Warrant Certificates and in this Agreement.

       

      (b)           In
case at any time the name of the Warrant Agent shall be changed and at such time
any of the Warrant Certificates shall have been countersigned but not delivered,
the Warrant Agent may adopt the countersignature under its prior name and
deliver Warrant Certificates so countersigned; and in case at that time any of
the Warrant Certificates shall not have been countersigned, the Warrant Agent
may countersign such Warrant Certificates either in its prior name or in its
changed name; and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this
Agreement.

       

      Section
17.               Duties of Warrant
Agent.  The Warrant Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and conditions, by all of
which the Company and the Holders of Warrant Certificates, by their acceptance
thereof, shall be bound:

       

      (a)           The
Warrant Agent may consult with legal counsel (who may be legal counsel for the
Company), and the opinion of such counsel shall be full and complete
authorization and protection to the Warrant Agent as to any action taken or
omitted by it in good faith and in accordance with such opinion.

       

      (b)           Whenever
in the performance of its duties under this Agreement the Warrant Agent shall
deem it necessary or desirable that any fact or matter be proved or established
by the Company prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by written
(including electronic) instructions of the Chief Executive Officer or President
of the Company or by the Secretary of the Company and delivered to the Warrant
Agent; and such certificate shall be full authentication to the Warrant Agent
for any action taken or suffered in good faith by it under the provisions of
this Agreement in reliance upon such writing.

       

      (c)           The
Warrant Agent shall not be liable for or by reason of any of the statements of
fact or recitals contained in this Agreement or in the Warrant Certificates
(except its countersignature thereof) or be required to verify the same, but all
such statements and recitals are and shall be deemed to have been made by the
Company only.

       

      
        
          
          

        

        
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      (d)           The
Warrant Agent shall not be under any responsibility in respect of the validity
of this Agreement or the execution and delivery hereof (except the due execution
hereof by the Warrant Agent) or in respect of the validity or execution of any
Warrant Certificate (except its countersignature thereof); nor shall it be
responsible for any breach by the Company of any covenant or condition contained
in this Agreement or in any Warrant Certificate; nor shall it be responsible for
the adjustment of the Exercise Price or the making of any change in the number
of shares of Common Stock or Warrant Shares required under the provisions of
Section 7, Section 11, Section 13 and the Warrant Certificate or
responsible for the manner, method or amount of any such change or the
ascertaining of the existence of facts that would require any such adjustment or
change (except with respect to the exercise of Warrants evidenced by Warrant
Certificates after actual notice of any adjustment of the Exercise Price); nor
shall it by any act hereunder be deemed to make any representation or warranty
as to the authorization or reservation of any shares of Common Stock to be
issued pursuant to this Agreement or any Warrant Certificate or as to whether
any shares of Common Stock will, when issued, be duly authorized, validly
issued, fully paid and nonassessable.

       

      (e)           The
Company agrees that it will perform, execute, acknowledge and deliver or cause
to be performed, executed, acknowledged and delivered all such further and other
acts, instruments and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing by the Warrant Agent of the provisions
of this Agreement.

       

      (f)           The
Warrant Agent is hereby authorized to accept instructions with respect to the
performance of its duties hereunder from the Chief Executive Officer, the
President or the Secretary of the Company, and to apply to such officers for
advice or instructions in connection with its duties, and it shall not be liable
and shall be indemnified and held harmless for any action taken or suffered to
be taken by it in good faith in accordance with instructions of any such
officer, provided Warrant Agent carries out such instructions without gross
negligence, bad faith or willful misconduct.

       

      (g)           The
Warrant Agent and any shareholder, director, officer, manager, member or
employee of the Warrant Agent may buy, sell or deal in any of the Warrants or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant
Agent from acting in any other capacity for the Company or for any other legal
entity.

       

      (h)           The
Warrant Agent may execute and exercise any of the rights or powers hereby vested
in it or perform any duty hereunder either itself or by or through its attorney
or agents, and the Warrant Agent shall not be answerable or accountable for any
act, default, neglect or misconduct of any such attorney or agents or for any
loss to the Company resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and continued employment
thereof.

       

      
        
          
          

        

        
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      Section
18.               Change of Warrant
Agent.  The Warrant Agent may resign and be discharged from its
duties under this Agreement upon 30 days’ notice in writing mailed to the
Company and to each transfer agent of the Common Stock by registered or
certified mail, and to the holders of the Warrant Certificates by first-class
mail. The Company may remove the Warrant Agent or any successor Warrant Agent
upon 30 days’ notice in writing, mailed to the Warrant Agent or successor
Warrant Agent, as the case may be, and to each transfer agent of the Common
Stock by registered or certified mail, and to the holders of the Warrant
Certificates by first-class mail. If the Warrant Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall appoint
a successor to the Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Warrant Agent or by the holder of a Warrant Certificate (who
shall, with such notice, submit his Warrant Certificate for inspection by the
Company), then the Holder of any Warrant Certificate may apply to any court of
competent jurisdiction for the appointment of a new Warrant Agent. Any successor
Warrant Agent, whether appointed by the Company or by such a court, shall be a
corporation organized and doing business under the laws of the United States or
of a state thereof, in good standing. After appointment, the successor Warrant
Agent shall be vested with the same powers, rights, duties and responsibilities
as if it had been originally named as Warrant Agent without further act or deed;
but the predecessor Warrant Agent shall deliver and transfer to the successor
Warrant Agent any property at the time held by it hereunder, and execute and
deliver any further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such appointment, the Company
shall file notice thereof in writing with the predecessor Warrant Agent and each
transfer agent of the Common Stock, and mail a notice thereof in writing to the
Holders of the Warrant Certificates. However, failure to give any notice
provided for in this Section 18, or any defect therein, shall not affect
the legality or validity of the resignation or removal of the Warrant Agent or
the appointment of the successor Warrant Agent, as the case may be.

       

      Section
19.               Warrant Exercise
Solicitation.  From time to time, the Company may engage one or
more registered broker-dealer(s) to act as the Company’s agent for the
solicitation of the exercise of the Warrants.  If so engaged, the Company
will provide the Warrant Agent with written notice of the engagement and the
Warrant Agent agrees that it will reasonably cooperate with such solicitation
activities.

       

      Section
20.               Notices.  Notices
or demands authorized by this Agreement to be given or made (i) by the
Warrant Agent or by the Holder of any Warrant Certificate to or on the Company,
(ii)  subject to the provisions of Section 18, by the Company or by
the Holder of any Warrant Certificate to or on the Warrant Agent or
(iii) by the Company or the Warrant Agent to the Holder of any Warrant
Certificate, shall be deemed given (x) on the date delivered, if delivered
personally, (y) on the first Business Day following the deposit thereof
with Federal Express or another recognized overnight courier, if sent by Federal
Express or another recognized overnight courier, and (z) on the fourth
Business Day following the mailing thereof with postage prepaid, if mailed by
registered or certified mail (return receipt requested), in each case to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):

       

      
        	
              	
                (a)

              	
                If
      to the Company, to:

              


      

       

      Apricus
Biosciences, Inc.

      6330
Nancy Ridge Road

      San
Diego, California 92121

      Attention:
President

       

      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

         

      

      
        	
              	
                (b)

              	
                If
      to the Warrant Agent, to:

              


      

       

      Wells
Fargo Bank, N.A.

      Attn:  Account
Management

      161 North
Concord Exchange

      South St.
Paul, MN  55075


       

      If to the
Holder of any Warrant Certificate, to the address of such holder as shown on the
registry books of the Company. Any notice required to be delivered by the
Company to the Holder of any Warrant may be given by the Warrant Agent on behalf
of the Company.

       

      Section
21.               Supplements and
Amendments.

       

      (a)           The
Company and the Warrant Agent may from time to time supplement or amend this
Agreement without the approval of any Holders of Warrant Certificates in order
to cure any ambiguity, to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions herein, or to
make any other provisions with regard to matters or questions arising hereunder
which the Company and the Warrant Agent may deem necessary or desirable and
which shall not adversely affect the interests of the Holders of Warrant
Certificates.

       

      (b)           In
addition to the foregoing, with the consent of Holders of Warrants entitled,
upon exercise thereof, to receive not less than a majority of the shares of
Warrant Shares issuable thereunder, the Company and the Warrant Agent may modify
this Agreement for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Warrant Agreement or
modifying in any manner the rights of the holders of the Warrant Certificates;
provided, however, that no
modification of the terms (including but not limited to the adjustments
described in Section 11) upon which the Warrants are exercisable or
reducing the percentage required for consent to modification of this Agreement
may be made without the consent of the holder of each outstanding warrant
certificate affected thereby.

       

      Section
22.               Successors.  All
covenants and provisions of this Agreement by or for the benefit of the Company
or the Warrant Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.

       

      Section
23.               Benefits of this
Agreement.  Nothing in this Agreement shall be construed to
give any Person other than the Company and the Warrant Agent any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Warrant Agent and the
Holders of the Warrant Certificates.

       

      Section
24.               Governing
Law.  This Agreement and each Warrant Certificate issued
hereunder shall be governed by, and construed in accordance with, the laws of
the State of California without giving effect to the conflicts of law principles
thereof.

       

      Section
25.               Counterparts.  This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.

       

      
        
          
          

        

        
          11

          
            

          

        

        
          
          

        

         

      

      Section
26.               Captions.  The
captions of the sections of this Agreement have been inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.

       

      Section
27.               Force
Majeure.  Notwithstanding anything to the contrary contained
herein, neither Warrant Agent nor the Company shall be liable for, or considered
to be in breach of or default under this Agreement (including Section 15) on
account of any delay or failure to perform its obligations hereunder due to
causes beyond such party’s reasonable control including, without limitation,
acts of God, terrorist acts, shortage of supply, breakdowns or malfunctions,
interruptions or malfunction of computer facilities, or loss of data due to
power failures or mechanical difficulties with information storage or retrieval
systems, labor difficulties, war, or civil unrest.

       

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

       

      
        
          	 	APRICUS BIOSCIENCES,
      INC.	 
	 	 	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ Mark
      Westgate	 
	 	Name: 	Mark
      Westgate	 
	 	Title:	President
      and Chief Financial Officer	 
	 	 	 	 


        

      

       

      
        
          	 	WELLS FARGO BANK,
      N.A.	 
	 	 	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ Suzanne
      M. Swits	 
	 	Name: 	Suzanne
      M. Swits	 
	 	Title:	Vice
      President	 
	 	 	 	 


        

      

       

      
        
          
          

        

        
          12

          
            

          

        

        
          
          

        

         

      

      EXHIBIT
A

       

      FORM
OF WARRANT CERTIFICATE

       

      
        
          
          

        

        
          13