UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D. C. 20549
____________
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act Of 1934
January
28, 2008
Date
of
Report (Date of earliest event reported)
___________________________________________________________
ACURA
PHARMACEUTICALS, INC.
(Exact
Name of Registrant as Specified in Charter)
___________________________________________________________
|
State
of New York
|
1-10113
|
11-0853640
|
|
(State
of Other Jurisdiction
|
(Commission
File Number)
|
(I.R.S.
Employer
|
|
of
Incorporation)
|
|
Identification
Number)
|
616
N. North Court, Suite 120
Palatine,
Illinois 60067
(Address
of principal executive offices) (Zip Code)
(847)
705-7709
(Registrant’s
telephone number, including area code)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting
material pursuant to
Rule 14a-12 under the Exchange Act (17CFR 240.14a-12)
o
Pre-commencement
communications pursuant
to Rule 14d-2(b) under the Exchange Act (17CFR240.14d-2(b))
o
Pre-commencement
communications pursuant
to Rule 13e-4(c) under the Exchange Act (17CFR 240.13e-
4(c))
Item
1.01
Entry
Into a Material Definitive Agreement
The
Registrant and GCE Holdings LLC (“GCE”), the Registrant’s controlling
shareholder, are parties to an Amended and Restated Voting Agreement dated
February 6, 2004, as amended (the “Voting Agreement”). The Voting Agreement
provides that the Board of Directors shall be comprised of not more than 7
members, 4 of whom shall be designees of GCE, one of whom shall be the
Registrant’s Chief Executive Officer and two (2) of whom shall be independent
directors. GCE has exercised its rights under the Voting Agreement with respect
to three (3) directors.
As
of January 24, 2008, the Voting Agreement was further amended (“Voting
Agreement Amendment”). The Voting Agreement Amendment provides for a reduction
in the number of Board members designated by GCE from 4 members to 3 members
and
for an increase in the number of independent directors from 2 members to 3
members. The Voting Agreement Amendment also provides that GCE’s rights to
designate directors terminates
on
the
date it ceases be a holder of at least 2,500,000 shares (including shares
underlying warrants) o
f
the
Registrant’s common stock.
Furthermore,
from and after the date GCE is no longer a holder of at least 10,000,000 shares
(including shares underlying warrants), its rights to designate board members
will be reduced from three (3) directors to two (2) directors, with the
forfeited seat becoming a seat for an independent director to thereafter be
nominated and elected to the Board of Directors from time to time by the then
current directors.
Finally,
from and after the date GCE ceases to be a holder of at least 5,000,000 shares
(including shares underlying warrants) it has the right to designate only one
(1) director, with the additional forfeited seat becoming a seat for an
independent director to thereafter be nominated and elected to the Board of
Directors from time to time by the then current directors.
GCE
currently is the beneficial owner of 77.6% of the Registrant’s securities and is
controlled by Essex Woodlands Health Venture Fund V, L.P., Care Capital
Investments II, L.P., Care Capital Offshore Investments II, L.P., Galen Partners
III, L.P., Galen Partners International III, L.P. and Galen Employee Fund III,
L.P. The designees of GCE Holdings serving on the Registrant’s Board of
Directors are Immanuel Thangaraj, Richard Markham and Bruce F.
Wesson.
Item
5.02
Departure
of Directors or Principal Officers, Election of Directors,
Appointment
of Principal Officers.
Election
of Director
On
January 24, 2008, the Board appointed George Ross to the Board of Directors,
as
an independent director. George Ross has been an early stage business consultant
and investor since April 2002. Since July 2005 he has also been Executive
Director, Greater New York for World Vision. His business career has
included senior financial officer and board member positions with both public
and private companies in diverse industries. Mr. Ross was Executive Vice
President and Chief Financial Officer and a board member of Tier Technologies
Inc. from February 1997 to January 2000, which became a public company during
this period. Mr. Ross was a partner and investor with Capital Partners
from 1992 to 1997, serving on multiple boards of directors. He was a
senior financial officer and director of various Axel Johnson Inc. businesses
from 1979 to 1992. He also served as Executive Vice President and Chief
Financial Officer and director of Aminoil USA, an R.J. Reynolds (“RJR”)
subsidiary, from 1976 to 1979; and in various financial positions with RJR
from
1969 to 1976. He also has worked in public accounting with Ernst &
Ernst. Mr. Ross is a Certified Public Accountant and earned a Bachelor of Arts
degree from Ohio Wesleyan University and a Masters of Business Administration
from Ohio State University.
Mr.
Ross
will serve as a member of the Audit Committee of the Board of Directors, and
as
the chairperson of, and “financial expert” on that Committee. The Audit
Committee is now comprised of Mr. Ross, Mr. Sumner and Mr. Skelly.
Mr.
Ross
will be compensated according to the Board compensation schedule described
in
Item 8.01.
Item
8.01
Other
Events.
On
January 24, 2008, the Board adopted a new compensation schedule for non-employee
directors, which provides
for
a
$20,000 annual retainer for each non-employee Director, an additional $5,000
for
the chairperson of the Audit Committee and $2,500 for each other Committee
chairperson, a $1,000 fee for each Board meeting attended in person ($500 if
attended telephonically), and a $500 fee for each Committee meeting attended
in
person ($250 if attended telephonically).
The
annual retainer and the fees for Audit Committee and other committee
chairpersons are paid in equal quarterly installments on the last day of each
quarter. Other fees are paid shortly after they are earned. In addition,
non-employee Directors will receive an annual grant of options to purchase
15,000 shares of our common stock on January 1 of each year (except 2008, for
which the grant date is January 24, 2008) at an exercise price equal to the
last
sale price on the date of grant (or closing price if the common stock is then
listed on an exchange or national market system), vesting in four equal
installments on the last day of each calendar quarter in the year of
grant.
Item
9.01
Financial
Statements and Exhibits.
|
Exhibit
|
|
|
Number
|
Description
|
|
|
|
|
10.1
|
Second
Amendment to Amended and Restated Voting Agreement dated as of January
24,
2008
|
|
|
|
|
99.1
|
Press
Release dated January 24, 2008 Announcing Appointment of Mr. George
Ross
to the Board of Directors
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
ACURA
PHARMACEUTICALS, INC.
By:
/s/
Peter A. Clemens
Peter A. Clemens
Senior Vice President & Chief Financial
Officer
Date:
January
28, 2008
EXHIBIT
INDEX
|
Exhibit
|
|
|
Number
|
Description
|
|
|
|
|
10.1
|
Second
Amendment to Amended and Restated Voting Agreement dated as of
January 24,
2008
|
|
|
|
|
99.1
|
Press
Release dated January 24, 2008 Announcing Appointment of Mr. George
Ross
to the Board of Directors
|
SECOND
AMENDMENT TO AMENDED AND RESTATED VOTING AGREEMENT
THIS
SECOND AMENDMENT TO AMENDED AND RESTATED VOTING AGREEMENT
(this
“
Amendment
”)
is
dated as of January 24, 2008 by and among Acura Pharmaceuticals, Inc. (f/k/a
Halsey Drug Co., Inc.), a New York corporation (the "
Company
")
and
GCE Holdings LLC (the “
Designating
Party
”).
WHEREAS
,
the
parties to this Amendment are parties to a certain Amended and Restated Voting
Agreement dated as of February 6, 2004 (the “
Original
Agreement
”);
WHEREAS
,
the
parties to this Amendment are also parties to a certain Joinder and Amendment
to
Amended and Restated Voting Agreement dated as of November 9, 2005 (the
“
First
Amendment,
”),
which
amended the Original Agreement in certain respects;
WHEREAS
,
the
Original Agreement, the First Amendment, and this Amendment are herein
collectively the “
Agreement
”;
WHEREAS
,
capitalized terms used herein but not otherwise defined shall have the meanings
set forth in the Original Agreement as amended by the First
Amendment;
WHEREAS
,
pursuant to the terms and conditions contained in the Original Agreement as
amended by the First Amendment, any term of the Original Agreement or the powers
granted thereunder may be amended only with the written consent of a majority
of
the Securities then subject to such agreement, which majority must include
the
Designating Party so long as it owns the Minimum Threshold; and
WHEREAS
,
the
parties to this Amendment desire to further amend the Original Agreement to
(i)
reduce the number of person designated by the Designating Party for election
to
the board of directors of the Company from four (4) to three (3); and (ii)
increase the number of persons who shall be independent directors from two
(2)
to three (3).
NOW,
THEREFORE
,
the
parties to this Amendment, who constitute a majority of the Securities then
subject to the Original Agreement, as amended, which majority includes the
Designating Party, hereby agree and consent as follows:
1.
Amendments
.
Section
2 of the Original Agreement (as amended by the First Amendment) is hereby
deleted and the following is inserted in its place:
“2.
Election
of Director Nominees
.
Commencing upon the Company's next upcoming meeting of shareholders, each Party
and GCE Holdings LLC (the "
Designating
Party
")
agree
as follows:
|
(a)
|
Each
Party holding any of the Company’s securities (collectively, the
"
Securities
")
shall vote its Securities, and take or cause to be taken such other
actions, as may be required from time to time to (i) ensure that
the Board
of Directors consists of no more than seven (7) directors, and (ii)
elect
to the Board of Directors of the Company (A) three (3) persons designated
by the Designating Party, (B) one person who shall be the Chief Executive
Officer of the Company, and (C) three (3) persons who shall be independent
directors (as defined in Rule 4200(a)(15) of the National Association
of
Securities' Dealers Listing Standards, as may be modified or
supplemented)
nominated
and elected to the Board of Directors by the then current directors.
Without limiting the generality of the foregoing, at each annual
meeting
of the shareholders of the Company, and at each special meeting of
the
shareholders of the Company called for the purpose of electing directors
of the Company, and at any time at which the shareholders of the
Company
have the right to elect directors of the Company, in each such event,
each
Party shall vote all Securities owned by them (or shall consent in
writing
in lieu of a meeting of shareholders of the Company), or take such
other
actions as shall be necessary, to elect the Designating Party's designees
as a director of the Company in accordance with the preceding provisions
of this Section 2(a);
|
|
(b)
|
Each
Party shall take all actions necessary to remove forthwith the director
designated by the Designating Party when such removal is requested
for any
reason, with or without cause, by the Designating Party. In the case
of
the death, resignation or removal as herein provided of a Designating
Party's designee, each Party shall vote all Securities held by it
to elect
another person designated by the Designating Party pursuant to Section
2(a);
|
|
(c)
|
Each
Party hereby agrees that it will not vote any of its Securities in
favor
of the removal of any director that shall have been designated by
the
Designating Party, unless the Designating Party shall have consented
to
such removal in writing;
|
In
the
event that any Party shall fail to vote the Securities held by it in accordance
with Section 2(a) and (b), such Party shall, upon such failure to so vote,
be
deemed immediately to have granted to the Designating Party, a proxy to vote
its
Securities solely for the election of the nominee of the Designating Party
or
the removal of director designated by the Designating Party. Such Party
acknowledges that each such proxy granted hereby, including any successive
proxy, if necessary, is being given to secure the performance of an obligation
hereunder, is coupled with an interest, and shall be irrevocable until such
obligation is performed;
|
(d)
|
No
Party shall grant any proxy or enter into or agree to be bound by
any
voting trust with respect to the Securities held by such Party, or
enter
into any shareholder agreement or arrangement of any kind with any
person
with respect to the Securities held by such person that is, in either
case, inconsistent with the terms of this Agreement (whether or not
such
agreement and arrangement was or is with other shareholders of the
Company
that are or are not parties to this
Agreement);
|
|
(e)
|
The
Company shall take, or cause to be taken, such actions as may be
required
from time to time to establish and maintain executive, audit and
compensation committees of the Board of Directors, as well as such
other
committees of the boards of directors of the Company as the Board
of
Directors shall determine, having such duties and responsibilities
as are
customary for such committees. The designees of the Designating Party
shall be, if so requested by the Designating Party, in its sole
discretion, a member of each such committee; and
|
|
(f)
|
The
rights of the Designating Party shall terminate on the date the
Designating Party ceases to be a holder of at least 2,500,000 Share
Equivalents (“
Minimum
Threshold”)
.
For purposes hereof,
Share
Equivalents
means common stock of the Company and/or shares of common stock of
the
Company underlying warrants. Further, from and after the date the
Designated Party ceases to be a holder of at least 10,000,000 Shares
Equivalents, it shall only have the right to designate two (2) directors
pursuant to Section 2(a) above, with the forfeited seat becoming
a seat
for an independent director to thereafter be nominated and elected
to the
Board of Directors from time to time by the then current directors.
Finally, from and after the date the Designated Party ceases to be
a
holder of at least 5,000,000 Share Equivalents, it shall only have
the
right to designate one (1) director pursuant to Section 2(a) above,
with
the additional forfeited seat becoming a seat for an independent
director
to thereafter be nominated and elected to the Board of Directors
from time
to time by the then current
directors.”
|
2.
Amendment
.
Any
term of this Amendment or the powers granted hereunder may be amended and the
observance of any such term or power may be waived (either generally or in
a
particular instance and either retroactively or prospectively) only with the
written consent of a majority of the Securities then subject to this Agreement,
which majority must include the Designating Party so long as it owns the Minimum
Threshold.
3.
Successors
and Assigns
.
Except
as otherwise provided herein, this Amendment shall inure to the benefit of,
and
be binding upon and enforceable against, the parties to the Original Agreement
(as amended by the First Amendment) and their respective successors, assigns,
heirs, executors and administrators.
4.
Counterparts
.
This
Amendment may be executed in separate counterparts, including by facsimile,
each
of which shall be an original and all of which taken together shall constitute
one and the same agreement.
5.
Notices
.
For
purposes of
Section
10
of the
Original Agreement, all notices, demands or other communications to the
Transferee shall be directed to the address set forth on the signature page
hereto.
6.
Effect
of Amendment
.
Except
as expressly provided herein, no other changes or modifications or waivers
or
consents to the Original Agreement (as amended by the First Amendment) are
intended or implied, and in all other respects the Original Agreement (as
amended by the First Amendment) is hereby ratified and confirmed by all parties
hereto as of the effective date hereof.
7.
Governing
Law
.
This
Amendment and rights of the parties hereunder shall be governed in all respects
by the laws of the State of New York wherein the terms of this Amendment were
negotiated, excluding to the greatest extent permitted by law any rule of law
that would cause the application of the laws of any jurisdiction other than
the
State of New York.
[SIGNATURE
PAGE TO FOLLOW]
IN
WITNESS WHEREOF
,
the
parties hereto have executed this Second Amendment to Amended and Restated
Voting Agreement as of the date first above written.
ACURA
PHARMACEUTICALS, INC.
By:
/s/ Andrew D.
Reddick
Name:
Andrew D. Reddick
Title:
President and Chief Executive Officer
GCE
HOLDINGS LLC
By:
/s/
Bruce F.
Wesson
Name:
Bruce F. Wesson
Title:
Address:
c/o Galen Partners III, L.P.
610
Fifth Avenue, 5
th
Floor
New
York, New York 10019
CONTACT:
Acura
Pharmaceuticals, Inc.,
Investor
Relations, Peter A. Clemens, SVP & CFO
847-705-7709
FOR
IMMEDIATE RELEASE
ACURA
PHARMACEUTICALS, INC. ANNOUNCES
APPOINTMENT
OF GEORGE K. ROSS AS DIRECTOR
Palatine,
IL, January 24, 2008
:
Acura
Pharmaceuticals, Inc. (ACPH.OB) is pleased to announce the appointment of George
K. Ross to its Board of Directors and Chairman of its Audit Committee. The
appointment of Mr. Ross increases the size of the Company's Board to
seven.
Since
April 2002, Mr. Ross has been a consultant to early stage businesses and a
financial investor. Since July 2005 he has also served as Executive
Director, Greater New York for World Vision. His business career has
included senior financial officer and board member positions with both public
and private companies in diverse industries. Mr. Ross was Executive Vice
President and Chief Financial Officer and a board member of Tier Technologies
Inc. from February 1997 to January 2000, which became a public company during
this period. Mr. Ross was a partner and investor with Capital Partners
from 1992 to 1997, serving on multiple boards of directors. He was a
senior financial officer and director of various Axel Johnson Inc. businesses
from 1979 to 1992. He also served as Executive Vice President and Chief
Financial Officer and director of Aminoil USA, an R.J. Reynolds (“RJR”)
subsidiary, from 1976 to 1979; and in various financial positions with RJR
from
1969 to 1976. He also has worked in public accounting with Ernst &
Ernst. Mr. Ross is a Certified Public Accountant and earned a Bachelor of Arts
degree from Ohio Wesleyan University and a Masters of Business Administration
from Ohio State University.
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 the
Company, King Pharmaceuticals Research and Development, Inc. and other
pharmaceutical companies, if any, with whom the Company may license its
Aversion® Technology, to obtain necessary regulatory approvals and commercialize
products utilizing the Aversion® Technology, the ability to avoid infringement
of patents, trademarks and other proprietary rights or trade secrets of third
parties, the ability to manufacture products utilizing the Aversion® Technology,
and the 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. 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
.