CERTIFICATE
OF AMENDMENT OF
CERTIFICATE
OF INCORPORATION
OF
ACURA
PHARMACEUTICALS, INC.
Under
Section 805 of the Business Corporation Law
WE,
THE
UNDERSIGNED, Andrew D. Reddick and Peter A. Clemens, being respectively the
President and the Secretary of Acura Pharmaceuticals, Inc., hereby
certify:
1.
The
name
of the Corporation is Acura Pharmaceuticals, Inc.. The Corporation was
originally incorporated under the name of Halsey Drug Co. Inc.
2.
The
Certificate of Incorporation was filed by the Department of State on April
10,
1935 and has been amended at various times by action of the Board of Directors
and shareholders of the Corporation.
3.
The
purpose of this amendment to Article THIRD of the Certificate of Incorporation,
relating to the amount of authorized capital stock of the Corporation, is
amended so that (i) every ten (10) shares of the Corporation’s common stock, par
value $0.01 per share (the “Old Common Stock”), issued and outstanding
immediately prior to this Certificate of Amendment to the Certificate of
Incorporation of the Corporation becoming effective pursuant to the Business
Corporation Law of the State of New York (the “Effective Time”), will be
automatically reclassified as and converted into one share of common stock,
par
value $0.01 per share. As of the Effective Time there are 427,066,492 shares
of
Common Stock issued and outstanding, which will be reclassified into 42,706,649
shares of Common Stock, thereby effecting a reduction of stated capital by
$3,843,598.43.
4.
Prior
to
the Effective Time, there were 222,933,508, par value $.01, unissued shares
of
Common Stock and after the Effective Time there will be 607,293,351 shares
of
unissued Common Stock, par value $.01. The unissued shares of Common Stock
are
not being reclassified or converted. As a result, the number of unissued shares
of Common Stock will increase by 384,359,843.
5.
There
are
no outstanding shares of Preferred Stock and the Preferred Stock is not being
changed.
6.
Upon
this
Certificate of Amendment to the Certificate of Incorporation of the Corporation
becoming effective pursuant to the Business Corporation Law of the State of
New
York (the “Effective Time”), every ten shares of the Corporation’s common stock,
par value $0.01 per share (the “Old Common Stock”), issued and outstanding
immediately prior to the Effective Time, will be automatically reclassified
as
and converted into one share of common stock, par value $0.01 per share, of
the
Corporation (the “New Common Stock”). Notwithstanding the immediately preceding
sentence, no fractional shares of New Common Stock shall be issued to the
holders of record of Old Common Stock in connection with the foregoing
reclassification of shares of Old Common Stock. In lieu thereof, the Company
shall pay cash for such fractional interests as soon as practicable after the
Effective Time on the basis of the average of the high bid and low asked prices
of one share of the Company’s common stock, as reported by the OTC Bulletin
Board, for the ten business days immediately preceding the effective date of
the
reverse stock split for which transactions in the common stock are reported.
7.
Each
stock certificate that, immediately prior to the Effective Time, represented
shares of Old Common Stock shall, from and after the Effective Time,
automatically and without the necessity of presenting the same for exchange,
represent that number of whole shares of New Common Stock into which the shares
of Old Common Stock represented by such certificate shall have been reclassified
(as well as the right to receive cash in lieu of any factional shares of New
Common Stock as set forth above), provided, however, that each holder of record
of a certificate that represented shares of Old Common Stock shall receive,
upon
surrender of such certificate, a new certificate representing the number of
whole shares of New Common Stock into which the shares of Old Common Stock
represented by such certificate shall have been reclassified, as well as any
cash in lieu of fractional shares of New Common Stock to which such holder
may
be entitled pursuant to the immediately preceding paragraph.
8.
The
reverse split will not affect the authorized capital stock of the corporation.
To effect the foregoing, Article THIRD is hereby amended by restating the
paragraph preceding
“Section
1. Preferred Stock.”
with the
following:
"THIRD:
The Corporation is authorized to issue two classes of stock, to be designated,
respectively, “Common Stock” and “Preferred Stock”. The total number of shares
which the Corporation is authorized to issue is 940,000,000 of which (A)
290,000,000 shares shall be Preferred Stock (the “
Preferred
”),
and
(B) 650,000,000 shares shall be Common Stock, $0.01
par
value
(the “
Common
”).
Of
the Preferred, 45,000,000 shares shall be designated Series A Convertible
Preferred Stock, $0.01
par
value
per share (the “
Series
A Preferred
”),
25,000,000
shares
shall be designated Series B Convertible Preferred Stock, $0.01
par
value
per share (the “
Series
B Preferred
”),
70,000,000 shares shall be designated Series C-1 Convertible Preferred Stock,
$0.01
par
value
per share (the “
Series
C-1 Preferred
”),
50,000,000 shares shall be designated Series C-2 Convertible Preferred Stock,
$0.01
par
value
per share (the “
Series
C-2 Preferred
”)
and
100,000,000 shares shall be designated Series C-3 Convertible Preferred Stock,
$0.01
par
value
per share (the “
Series
C-3 Preferred
”).
The
Series C-1 Preferred, Series C-2 Preferred and Series C-3 Preferred are
sometimes referred to collectively as the “
Series
C Preferred
”.
The
rights, preferences and privileges of and restrictions on the Series A
Preferred, Series B Preferred, Series C Preferred and Common are as
follows:”
9.
The
foregoing amendments to the Certificate of Incorporation were authorized by
the
unanimous written consent of the Board of Directors followed by an affirmative
vote of the holders of a majority of the outstanding shares of common stock
of
the Corporation entitled to vote thereon.
IN
WITNESS WHEREOF, Andrew D. Reddick, in his capacity as President of the
Corporation, and Peter A. Clemens, in his capacity as Secretary of the
Corporation have signed this certificate on the 3
rd
day of
December, 2007,
and
affirm the statements contained herein as true under penalties of
perjury.
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|
/s/
Andrew D. Reddick
|
|
|
|
Andrew
D. Reddick, President
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|
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|
|
|
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/s/
Peter A. Clemens
|
|
|
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Peter
A. Clemens, Secretary
|
CONTACT:
Acura
Pharmaceuticals, Inc.,
Investor
Relations, Peter A. Clemens, SVP & CFO
847-705-7709
FOR
IMMEDIATE RELEASE
ACURA
PHARMACEUTICALS, INC. ANNOUNCES IMPLEMENTATION OF
REVERSE
STOCK SPLIT AND NEW TRADING SYMBOL: ACPH.OB
Palatine,
IL, December 4, 2007:
Acura
Pharmaceuticals, Inc. (OTC.BB-ACUR) today announced the filing of an amendment
to its Certificate of Incorporation effecting a 1 for 10 reverse stock split.
Commencing December 5, 2007, the Company’s common stock will trade on a split
adjusted basis under the symbol “
ACPH.OB
”.
The
Company's intent to effect a reverse stock split was announced on October
31,
2007 and was subject to meeting certain OTC Bulletin Board requirements which
have now been met.
Objectives
of the Reverse Stock Split
The
Company’s primary objectives for implementing the reverse stock split are to
reduce the number of outstanding common shares to be generally consistent
with
comparable companies and attempt to raise the per share trading price of
its
common stock in an effort to obtain a listing on the American Stock Exchange
(“AMEX”) or the Nasdaq Capital Market (“NASDAQ”). While the Company intends that
the reverse split will increase the bid price per share of its common stock
above the minimum prices required for listing by AMEX and NASDAQ, there can
be
no assurance that the reverse split will have that effect, initially or in
the
future, or that it will enable the Company to achieve the listing of its
common
stock on the AMEX or the NASDAQ. In addition, there can be no assurance that
the
price per share of the Company’s common stock immediately after the reverse
split will increase proportionately with the reverse split or that any price
per
share increase will be sustained for any period of time.
Impact
of Reverse Stock Split on Number of Shares Held
Shareholders
of record will be entitled to receive a new stock certificate representing
the
number of shares calculated by dividing their pre-split share holdings by
10. If
the total number of pre-split shares that a shareholder holds is not evenly
divisible by 10, the shareholder will receive cash in an amount equal to
the
fraction of a share that the shareholder otherwise would have been entitled
to
receive, multiplied by $0.73 (the average of the high bid and low asked prices
of one share of the Company’s common stock, as reported by the OTC Bulletin
Board, for the 10 business days immediately preceding the effective date
of the
reverse stock split).
Process
for Exchanging Existing Stock Certificates for New Stock
Certificates
Within
the next 5 days, the Company will mail each shareholder of record a letter
of
transmittal from Continental Stock Transfer & Trust Company (the “Exchange
Agent”). This letter of transmittal will contain instructions for submitting a
shareholder’s existing stock certificates to the Exchange Agent in exchange for
new Acura Pharmaceuticals, Inc. stock certificates representing the appropriate
number of whole shares of new common stock resulting from the reverse stock
split. The Exchange Agent will also facilitate the payment from Acura
Pharmaceuticals, Inc. to shareholders for any fractional share interests.
Shareholders should NOT destroy any existing stock certificates and should
NOT
submit any stock certificates to the Company or the Exchange Agent until
they
receive the letter of transmittal from the Company.
Process
if Shares are Held in a Brokerage Account
If
a
shareholder’s shares are currently held in a brokerage account, the broker will
adjust such shareholder’s share balance to give effect to the reverse stock
split. In this case, a shareholder will not receive a letter of transmittal
and
no action need to be taken by the shareholder. Shareholders whose shares
are
held in a brokerage account may trade the Company’s shares beginning December 5,
2007 through their brokerage account on a split adjusted basis under the
new
stock symbol ACPH.OB.
About
Acura Pharmaceuticals, Inc.
Acura
Pharmaceuticals, Inc. is a specialty pharmaceutical company engaged in research,
development and manufacture of innovative Aversion® (abuse deterrent) Technology
and related product candidates.
Forward
Looking Statements
This
press release contains "forward-looking statements" as defined in the Private
Securities Litigation Reform Act of 1995. These statements are based on current
expectations of future events. If underlying assumptions prove inaccurate
or
unknown risks or uncertainties materialize, actual results could vary materially
from the Company’s expectations and projections. The most significant of such
risks and uncertainties include, but are not limited to, the ability of King
Pharmaceuticals Research and Development, Inc. and other pharmaceutical
companies, if any, with whom the Company may license its Aversion® Technology,
to develop, obtain necessary regulatory approvals and commercialize products
utilizing the Aversion® Technology, the Company’s ability to avoid infringement
of patents, trademarks and other proprietary rights or trade secrets of third
parties, the ability of King Pharmaceuticals Research and Development, Inc.
and
other third parties to manufacture products utilizing the Aversion® Technology,
and the Company’s ability to fulfill the FDA’s requirements for approving the
Company’s product candidates for commercial distribution in the United States,
including, without limitation, the adequacy of the results of the clinical
studies completed to date and the results of other clinical studies, to support
FDA approval of the Company’s product candidates, the adequacy of the
development program for the Company’s product candidates, changes in regulatory
requirements, adverse safety findings relating to the Company’s product
candidates, the risk that the FDA may not agree with the Company’s analysis of
its clinical studies and may evaluate the results of these studies by different
methods or conclude that the results of the studies are not statistically
significant, clinically meaningful or that there were human errors in the
conduct of the studies or otherwise, the risk that further studies of the
Company’s product candidates are not positive, and the uncertainties inherent in
scientific research, drug development, clinical trials and the regulatory
approval process. You are encouraged to review other important risk factors
relating to the Company on our web site at www.acurapharm.com under the link,
“Company Risk Factors” and detailed in Company filings with the Securities and
Exchange Commission. The Company is at development stage and may never have
any
products or technologies that generate revenue. Acura Pharmaceuticals, Inc.
assumes no obligation to update any forward-looking statements as a result
of
new information or future events or developments. Acura Pharmaceuticals,
Inc.
press releases may be reviewed at www.acurapharm.com.