UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
13D/A
Under
the Securities Exchange Act of 1934
(Amendment
No. 5 )*
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A.P.
Pharma, Inc.
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(Name
of Issuer)
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Common
Stock, par value $0.01 per share
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(Title
of Class of Securities)
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00202J203
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(CUSIP
Number)
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Kevin
C. Tang
Tang
Capital Management, LLC
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|
4401
Eastgate Mall
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San
Diego, CA 92121
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(858)
200-3830
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(Name,
Address and Telephone Number of Person Authorized to
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Receive
Notices and Communications)
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October 19 , 2009
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(Date
of Event which Requires Filing of this
Statement)
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If the
filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. x
Note: Schedules
filed in paper format shall include a signed original and five copies of the
schedule, including all exhibits. See § 240.13d-7 for other
parties to whom copies are to be sent.
* The
remainder of this cover page shall be filled out for a reporting person’s
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The
information required on the remainder of this cover page shall not be deemed to
be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934
(“Act”) or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued
on following pages)
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CUSIP
NO. 00202J203
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13D/A
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Page
2 of 9
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1.
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Names
of Reporting Persons.
I.R.S.
Identification Nos. of above persons (entities only).
Tang
Capital Partners, LP
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2.
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Check
the Appropriate Box if a Member of a Group
(a)
¨
(b)
ý
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3.
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SEC
Use Only
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4.
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Source
of Funds
WC
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5.
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Check
If Disclosure of Legal Proceeding Is Required Pursuant to Items 2(d) or
2(e)
¨
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6.
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Citizenship
or Place of Organization
Delaware
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Number
of
Shares
Beneficially
Owned
by
Each
Reporting
Person
With
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7.
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Sole
Voting Power
0
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8.
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Shared
Voting Power
12,022,987
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||
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9.
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Sole
Dispositive Power
0
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10.
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Shared
Dispositive Power
12,022,987
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11.
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Aggregate
Amount Beneficially Owned by Each Reporting Person
12,022,987
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12.
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Check
if the Aggregate Amount in Row (11) Excludes Certain
Shares ¨
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13.
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Percent
of Class Represented by Amount in Row (11)
29.4%
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14
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Type
of Reporting Person
PN
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Page 2 of
9
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CUSIP
NO. 00202J203
|
13D/A
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Page 3 of
9
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1.
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Names
of Reporting Persons.
I.R.S.
Identification Nos. of above persons (entities only).
Tang
Capital Management, LLC
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||
|
2.
|
Check
the Appropriate Box if a Member of a Group
(a)
¨
(b)
ý
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3.
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SEC
Use Only
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||
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4.
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Source
of Funds
WC
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5.
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Check
If Disclosure of Legal Proceeding Is Required Pursuant to Items 2(d) or
2(e)
¨
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6.
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Citizenship
or Place of Organization
Delaware
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||
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Number
of
Shares
Beneficially
Owned
by
Each
Reporting
Person
With
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7.
|
Sole
Voting Power
0
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8.
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Shared
Voting Power
12,022,987
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||
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9.
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Sole
Dispositive Power
0
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10.
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Shared
Dispositive Power
12,022,987
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||
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11.
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Aggregate
Amount Beneficially Owned by Each Reporting Person
12,022,987
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||
|
12.
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Check
if the Aggregate Amount in Row (11) Excludes Certain
Shares ¨
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||
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13.
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Percent
of Class Represented by Amount in Row (11)
29.4%
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||
|
14
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Type
of Reporting Person
OO
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||
Page 3 of
9
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CUSIP
NO. 00202J203
|
13D/A
|
Page 4 of
9
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1.
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Names
of Reporting Persons.
I.R.S.
Identification Nos. of above persons (entities only).
Kevin
C. Tang
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||
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2.
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Check
the Appropriate Box if a Member of a Group
(a)
¨
(b)
ý
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||
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3.
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SEC
Use Only
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||
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4.
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Source
of Funds
PF,
WC, OO
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5.
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Check
If Disclosure of Legal Proceeding Is Required Pursuant to Items 2(d) or
2(e)
¨
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6.
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Citizenship
or Place of Organization
United
States
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Number
of
Shares
Beneficially
Owned
by
Each
Reporting
Person
With
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7.
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Sole
Voting Power
215,250
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8.
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Shared
Voting Power
12,431,315
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9.
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Sole
Dispositive Power
215,250
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10.
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Shared
Dispositive Power
12,596,199
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11.
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Aggregate
Amount Beneficially Owned by Each Reporting Person
12,811,449
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12.
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Check
if the Aggregate Amount in Row (11) Excludes Certain
Shares ¨
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13.
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Percent
of Class Represented by Amount in Row (11)
31.3%
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14
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Type
of Reporting Person
IN
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Page 4 of
9
Explanatory Note: This
Amendment No. 5 relates to and amends the Statement
of Beneficial Ownership on Schedule 13D/A of Tang Capital Partners, LP, a
Delaware partnership, Tang Capital Management, LLC, a Delaware limited liability
company , and Kevin C. Tang, a United States citizen
(each, a “Reporting Person” and collectively, the “Reporting Persons”),
initially filed jointly by the Reporting Persons with the Securities and
Exchange Commission on October 14, 2008 and amended on November 10, 2008,
November 24, 2008, December 29, 2008 and February 18,
2009 (the “Statement”), with respect to the Common Stock, $0.01 par value
(the “Common Stock”), of A.P. Pharma, Inc., a Delaware corporation (the
“Issuer”).
Items 3,
5 and 7 of the Statement
are hereby amended to the extent hereinafter expressly set forth. All
capitalized terms used and not expressly defined herein have the respective
meanings ascribed to such terms in the Statement.
Item
3. Source and Amount of Funds or Other Consideration
Item 3 of
the Statement is hereby amended to add the following:
Since the
date of the last filing on Schedule 13D/A, on October 19,
2009, Tang Capital Partners, LP purchased 2,443,181 shares of the Issuer’s
Common Stock through a private placement for $0.88 per
share.
Since the
date of the last filing on Schedule 13D/A, on October 19, 2009, Tang Capital
Partners, LP purchased the rights to purchase 1,586,481 shares of the Issuer’s
Common Stock through a private placement for $0.125 per share (the “Purchase
Rights”). The Purchase Rights are exercisable on May 14, 2010, or such earlier
date as mutually agreed upon by the holders of a majority of the Purchase
Rights, at an exercise price of $0.968 per share. The foregoing
summary of the terms of the Purchase Rights does not purport to be complete and
is qualified in its entirety by reference to the full text of the purchase
rights contained in the Securities Purchase Agreement dated October 19, 2009 by
and among A.P. Pharma, Inc. and the purchasers listed on Exhibit A thereto (the
“Purchase Agreement”), a copy of which has been filed as Exhibit A to this
Schedule 13D/A and is incorporated herein by reference.
Since the
date of the last filing on Schedule 13D/A, on October 19, 2009, Tang Capital
Partners, LP purchased warrants to purchase 1,221,590 shares of the Issuer’s
common stock through a private placement for $0.125 per share (the “Warrants”).
The Warrants are exercisable on October 23, 2009 at an exercise price of $0.88
per share and expire on January 7, 2015. The foregoing summary
of the terms of the Warrants does not purport to be complete and is qualified in
its entirety by reference to the full text of the Warrant, the form of which has
been filed as Exhibit C to this Schedule 13D/A and is incorporated herein by
reference.
Tang
Capital Partners, LP holds some of its shares in commingled margin accounts,
which may extend margin credit to Tang Capital Partners, LP as and when required
to open or carry positions in the margin accounts, subject to applicable federal
margin regulations, stock exchange rules and credit policies. In such instances,
the positions held in the margin accounts are pledged as collateral security for
the repayment of debit balances in these accounts. The margin accounts may from
time to time have debit balances. Since other securities are held in the margin
accounts, it is not possible to determine the amounts, if any, of margin used to
purchase the shares of common stock reported herein.
Page 5 of
9
Item
5. Interest
in Securities of the Issuer
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Item
5 of the Statement is hereby amended and restated in its entirety as
follows:
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(a)
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Amount beneficially owned and percentage of
class:
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Tang
Capital Partners, LP
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12,022,987
shares, representing 29.4% of the class
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Tang
Capital Management,
LLC
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12,022,987
shares, representing 29.4% of the class
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Kevin
C. Tang
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12,811,449
shares, representing 31.3% of the
class
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Tang Capital Partners, LP is the
beneficial owner of 10,436,506 shares of the Issuer’s Common Stock and has the
right to acquire an additional 1,586,481 shares of common stock upon exercise of
the Purchase Rights it owns. Additionally, Tang Capital Partners, LP
has the right, subject to certain limitations discussed below, to acquire
1,221,590 shares of the Issuer’s Common Stock upon exercise of the Warrant it
owns.
The above
Warrant provides that in no event shall the Warrant be exercisable to the extent
that the issuance of Common Stock upon exercise thereof, after taking into
account the Common Stock then owned by Tang Capital Partners, LP and its
affiliates, would result in the beneficial ownership by Tang Capital Partners,
LP and its affiliates of more than 9.999% of the outstanding Common Stock
(“Limitation on Exercise”). The Limitation on Exercise remains in effect with
respect to such warrant and no shares are currently issuable upon exercise of
such warrant. Neither the filing of this Schedule 13D/A nor any of its contents
shall be deemed to constitute an admission by Tang Capital Partners, LP or any
other person that is the beneficial owner of any of the Common Stock underlying
such warrant for purposes of Section 13(d) of the Securities Exchange Act of
1934, as amended, or for any other purpose, and as such beneficial ownership is
expressly disclaimed.
Tang Capital Management, LLC, as the
general partner of Tang Capital Partners, LP, may be deemed to beneficially own
the 12,022,987 shares held
or acquirable by Tang Capital Partners, LP. Tang
Capital Management, LLC shares voting and dispositive power over such
shares with Tang Capital Partners, LP and Kevin C. Tang.
Kevin C.
Tang is the beneficial owner of 12,811,449 shares of
the Issuer’s Common Stock, comprising 62,600 shares owned by Justin L. Tang
under the Uniform Transfers to Minors Act (“UTMA”), for which Kevin C. Tang
serves as trustee, 53,700 shares owned by Julian K. Tang under the UTMA, for
which Kevin C. Tang serves as trustee, 15,200 shares owned by Noa Y. Tang under
the UTMA, for which Kevin C. Tang serves as trustee, 40,800 shares owned by the
Tang Advisors, LLC Profit Sharing Plan, for which Kevin C. Tang serves as
trustee and is a participant, 114,650 shares held by the Tang Family Trust, for
which Kevin C. Tang serves as co-trustee, 42,950 shares held by Kevin C. Tang’s
Individual Retirement Account, 34,637 shares owned by the Individual Retirement
Account for the benefit of Chang L. Kong (the “Chang IRA”), 34,241 shares owned
by the Individual Retirement Account for the benefit of Chung W. Kong (the “Chung IRA”), 96,006 shares
owned by Joan M. Lamb, 293,678 shares owned by the Haeyoung and Kevin Tang
Foundation, Inc., and 12,022,987 shares held or acquirable by Tang Capital Partners,
LP.
Page 6 of
9
Justin L. Tang, Julian K. Tang and Noa
Y. Tang are Kevin C. Tang’s children. Kevin C. Tang is a beneficiary
of the Tang Family Trust and shares voting and dispositive power over the shares
held by the Tang Family Trust with his wife, Haeyoung K. Tang. Chang
L. and Chung W. Kong are Kevin C. Tang’s in-laws and Mr. Tang may be deemed to
have shared dispositive power over the shares held in the Chang IRA and the
Chung IRA. Joan M. Lamb is an acquaintance of Kevin C. Tang and Mr.
Tang may be deemed to have shared dispositive power over the shares held by Ms.
Lamb. The Haeyoung and Kevin Tang Foundation, Inc. is a private
foundation, for which Kevin C. Tang serves as President and Treasurer. Mr. Tang
shares voting and dispositive power over the shares held by this foundation with
Haeyoung K. Tang. Tang Capital Management, LLC, as the general partner of Tang
Capital Partners, LP, and Kevin C. Tang, as the manager of Tang Capital
Management, LLC, may also be deemed to beneficially own the shares beneficially
owned by Tang Capital Partners, LP. Chang L. and Chung W. Kong are retired
U.S. citizens. Ms . Lamb is a U.S. citizen
and is self-employed in the design industry. The Haeyoung and Kevin Tang
Foundation, Inc. is a not-for-profit corporation incorporated in the state of
Delaware. The mailing address of all of
the foregoing persons and entities is c/o Tang Capital Management, LLC, 4401
Eastgate Mall, San Diego, CA 92121. Kevin C.
Tang disclaims beneficial ownership of all shares reported herein except to the
extent of his pecuniary interest therein.
The
percentages used herein are based upon 40,920,664 shares of Common Stock
outstanding as of October 22, 2009 (31,379,640 outstanding shares as of October
19, 2009, which number was obtained directly from the Issuer, plus 7,954,543
shares of Common Stock issued in the Issuer’s private placement on October 19,
2009, plus 1,586,481 shares issuable upon the exercise of the Purchase Rights
held by Tang Capital Partners, LP).
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(b)
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Voting and disposition
powers:
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Sole
power to vote or direct the vote:
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Tang
Capital Partners, LP
|
0
shares
|
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Tang
Capital Management, LLC
|
0
shares
|
|
|
Kevin
C. Tang
|
215,250
shares
|
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Shared
power to vote or direct the vote:
|
||
|
Tang
Capital Partners, LP
|
12,022,987
shares
|
|
|
Tang
Capital Management, LLC
|
12,022,987
shares
|
|
|
Kevin
C. Tang
|
12,431,315
shares
|
|
Page 7 of
9
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Sole
power to dispose or direct the disposition:
|
||
|
Tang
Capital Partners, LP
|
0
shares
|
|
|
Tang
Capital Management, LLC
|
0
shares
|
|
|
Kevin
C. Tang
|
215,250
shares
|
|
|
Shared
power to dispose or direct the disposition:
|
||
|
Tang
Capital Partners, LP
|
12,022,987
shares
|
|
|
Tang
Capital Management, LLC
|
12,022,987
shares
|
|
|
Kevin
C. Tang
|
12,596,199
shares
|
|
(c) Other
than the purchases described in Item 3, none of Kevin C. Tang, Tang Capital
Partners, LP and Tang Capital Management, LLC have effected any transaction in
the Issuer’s common stock within the last 60 days.
(d) N/A.
(e) N/A.
Item
7. Material
to Be Filed as Exhibits
Item 7 of
the Statement is hereby amended to add the following
exhibits:
Exhibit
A: Securities Purchase Agreement dated
October 19, 2009 by and among A.P. Pharma, Inc. and the purchasers listed on
Exhibit A thereto. (Incorporated by reference to the Issuer’s Current
Report on Form 8-K (File No. 001-33221), filed with the SEC on October 22,
2009.)
Exhibit B: Registration
Rights Agreement made and entered into as of October 22, 2009 by and among A.P.
Pharma, Inc. and the purchasers’ signatory thereto. (Incorporated by
reference to the Issuer’s Current Report on Form 8-K (File No. 001-33221), filed
with the SEC on October 22, 2009.)
Exhibit
C: Form of warrant to purchase shares
of common stock issued by A.P. Pharma,Inc. (Incorporated by reference
to the Issuer’s Current Report on Form 8-K (File No. 001-33221), filed with the
SEC on October 22, 2009.)
Page 8 of
9
SIGNATURES
After reasonable inquiry and to the
best of his or its knowledge and belief, each of the following Reporting Persons
certifies that the information set forth in this statement is true, complete and
correct.
October 26 , 2009
| Tang Capital Partners, LP | |||
| By: | Tang Capital Management, LLC | ||
| By: | /s/ Kevin C. Tang | ||
| Kevin C. Tang, Manager | |||
| Tang Capital Management, LLC | |||
| By: |
/s/
Kevin C. Tang
|
||
| Kevin C. Tang, Manager | |||
| /s/ Kevin C. Tang | |||
Page 9 of
9