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
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
of
Incorporation)
|
(Commission
File Number)
|
(I.R.S.
Employer
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 (17 CFR 240.14a-12)
o
Pre-commencement
communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d- 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
On
March
30,
2007,
the
Registrant amended bridge loan agreements with Essex Woodlands Health Venture
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. (collectively, the “VC Lenders”) and certain individual
lenders, dated June 22, 2005, September 16, 2005, November 9, 2005 and January
31, 2006 (the “Bridge Loan Agreements”), under which the Registrant has borrowed
the principal amount of $9.340 million (inclusive of the March
30,
2007
bridge
loan in the principal amount of $600,000 described in Item 8.01 below)
(collectively, the “Bridge Loans”). The amendments to the Bridge Loan Agreements
provide for:
| (i) |
the
extension of the maturity date of the Bridge Loans from March 31,
2007 to
September 30, 2007;
|
| (ii) |
the
continued satisfaction of interest payments in the Registrant’s common
stock based upon the average of the closing bid and asked prices
of the
common stock for the five (5) trading days immediately preceding
the
interest payment date;
|
| (iii) |
the
commitment for additional bridge funding to be provided by the VC
Lenders
in the principal amount of up to $600,000 million (after giving effect
to
the Bridge Loan of $600,000 made by the VC Lenders on March
30, 2007
and described in Item 8.01 below); and
|
| (iv) |
the
right of the bridge lenders to convert the Bridge Loans (including
the
additional bridge loans to be advanced under subsection (iii) above)
(the
“Bridge Loan Financing”), into the Registrant’s common stock upon the
completion of a third-party equity financing providing gross proceeds
to
the Registrant in the aggregate amount of at least $5 million (a
“Third
Party Equity Financing”), a Change of Control Transaction or upon the
maturity date of the Bridge Loan Financing (each a “Triggering Event”).
Upon the occurrence of a Triggering Event, the bridge
lenders may convert the $2.00 million of Bridge Loans secured from
November 2006 through February 2007 (the “November 2006 Bridge Loans”) and
the Bridge Loans secured March
30, 2007
and any future Bridge Loans into the Registrant’s common stock at a
conversion price equal to (A)
in the case of the completion of a Third Party Equity Financing,
the
lesser of (i) the average price of the securities sold by the Registrant
in such Third Party Equity Financing, (ii) 80% of the average closing
bid
and asked prices of the Registrant’s common stock for the twenty trading
days immediately preceding the public announcement of the Third Party
Equity Financing, and (iii) $0.46 per share ($0.44, in the case of
the
November 2006 Bridge Loans) and (B) in the case of a Change of Control
Transaction or upon the maturity date of the Bridge Loan Financing,
the
lesser of (i) $0.46 per share ($0.44, in the case of the November
2006
Bridge Loans) and (ii) 80% of the average closing bid and asked prices
of
the Registrant’s common stock for the twenty trading days immediately
preceding the public announcement of the Change of Control Transaction
or
the maturity date, as applicable, but in no event in the case of
clauses
(A) and (B), less than $0.21 per share. In addition, upon a Triggering
Event, the bridge lenders may convert (i) $2.55 million of Bridge
Loan
Financing into the Company's common stock at a conversion price of
$0.20
per share, (ii) $2.3 million of Bridge Loan Financing at a conversion
price of $0.225 per share and (iii) $1.894 million of bridge loan
financing at a conversion price of $0.25 per share, and in addition
in the
case of clauses (i)-(iii) of this sentence in a Third Party Equity
Financing, on the same terms as provided in such Third-Party Equity
Financing (but not less than $0.21 per share).
|
GCE
Holdings, LLC, which is controlled by the VC Lenders, beneficially owns
approximately 78% of the Registrant's outstanding common stock and has the
right
to designate four directors (of which it has exercised the right with respect
to
three directors) to the Registrant’s Board of Directors.
Item
2.03
Creation
of a Direct Financial Obligation or an Obligation Under an Off Balance Sheet
Arrangement
The
contents of Items 1.01 and 8.01 are hereby incorporated by
reference.
Item
8.01 Other
Events
On
March
30, 2007 and April 2, 2007, the Registrant borrowed $400,000 and $200,000,
respectively, pursuant to a certain Bridge Loan Agreement dated January
31,
2006, as amended with various lenders. The Bridge Loans bear interest at
a rate
of 10% and mature on September 30, 2007. The Bridge Loans contain customary
default and acceleration provisions and provide the conversion rights described
in Item 1.01 above.
Item
9.01 Financial
Statements and Exhibits
|
Exhibit
Number
|
Description
|
|
10.1
|
Omnibus
Amendment and Consent effective as of March
30, 2007
between the Registrant and various lenders.
|
|
99.1
|
Press
Release dated April 2, 2007 Announcing Receipt of Bridge Funding
|
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: April
2,
2007
Exhibit
Index
|
Exhibit
Number
|
Description
|
|
10.1
|
Omnibus
Amendment and Consent effective as of March
30, 2007
between the Registrant and various lenders.
|
|
99.1
|
Press
Release dated April 2, 2007 Announcing Receipt of Bridge Funding
|
OMNIBUS
AMENDMENT AND CONSENT
OMNIBUS
AMENDMENT AND CONSENT EFFECTIVE AS OF March 30, 2007 (this “Omnibus
Amendment and Consent”)
by and
among Acura Pharmaceuticals, Inc. (the “Company”),
and
Acura Pharmaceutical Technologies, Inc. and the following lenders (“Lenders”):
Galen
Partners III, L.P. (as agent for the other lenders (“Agent”)
and as
a lender itself), Galen Partners International, III, L.P., Galen Employee Fund
III, L.P., Care Capital Offshore Investments II, LP, Care Capital Investments
II, LP, Essex Woodlands Health Ventures V, L.P. (the foregoing Lenders, being
the “VC
Lenders”),
Dennis
Adams, George E. Boudreau, Michael Weisbrot, Susan Weisbrot; and the following
persons with respect to Sections 5, 6, 7, and 8: John E. Heppe Jr. and Peter
Steiglitz (“Additional
Watson Holders”).
Capitalized
terms used herein and not defined herein have the meanings set forth in the
Subordination Agreement dated as of January 31, 2006 among the Lenders, the
Company and others (the “Subordination
Agreement”).
R
E C I T A L S
WHEREAS
the
Company and one or more Lenders have entered into the June 2005 Loan Agreement,
the September 2005 Loan Agreement, the November 2005 Loan Agreement and the
January 2006 Loan Agreement (collectively, the “Loan
Agreements”)
and
such other agreements, notes and instruments executed in connection with such
loan agreements (collectively, the “Loan
Documents”);
and
WHEREAS,
the
Company and certain Lenders and the Additional Watson Holders are parties to
the
Watson Note (as defined in the Subordination Agreement); and
WHEREAS,
the
loans extended pursuant to the Loan Agreements are due to mature on March 31,
2007 (the “Original
Maturity Date”);
WHEREAS,
pursuant
to Section 1(a) of the Omnibus Amendment dated August 16, 2006 among the parties
hereto (the “August
2006 Omnibus Amendment”),
Section 5.12 was added to each Loan Agreement to grant the Lenders the right
to
convert their Notes under certain circumstances into equity securities of the
Company (the “August
2006 Rollover Right”);
WHEREAS,
pursuant
to Section 1(a) of the Omnibus Amendment dated November 30, 2006 among the
parties hereto (the “November
2006 Omnibus Amendment”),
Section 5.12 of each Loan Agreement was amended and restated to grant the
Lenders a the right to convert their Notes under certain circumstances into
equity securities of the Company (the “November
2006 Rollover Right”);
WHEREAS,
the
Company and the Lenders wish to extend the Original Maturity Date, amend and
restate in its entirety the November 2006 Rollover Right as provided herein
modified and provide for additional bridge loan commitments by the VC
Lenders.
NOW,
THEREFORE,
in
consideration of the mutual covenants herein contained, the parties mutually
agree as follows:
1
1.
Amendments:
| (a) |
The
January 2006 Loan Agreement is amended by adding thereto Schedule
1.3A
attached hereto and by deleting Section 1.1 in its entirety and replacing
same with the following:
|
“1.1
TERM LOAN
On
the terms and subject to the conditions of this Agreement, each Lender severally
agrees to make to the Company on the Closing Date a term loan (each, a
“Loan”)
in
a principal amount equal to such Lender’s initial Commitment. The Lenders shall
make additional Loans commencing November 2006, as set forth in Section 1.3,
and
may, in their sole and absolute discretion, make additional Loans to the Company
as provided in Section 1.3 hereof. The Company and the Lenders acknowledge
and
agree that no Lender is under any obligation to make any Loan in excess of
its
respective Commitment. No amounts paid or prepaid with respect to any Loan
may
be reborrowed.”
;and
by
amending and restating the definition of Commitment in Article XVI as
follows;
““Commitment”
means, with respect to each Lender, the commitment of such Lender to make such
Loan hereunder. The initial amount of the Commitment of each of Essex, Care
Capital and Galen is set forth opposite its signature hereto. The additional
mandatory Commitments of the Lenders are set forth in Section 1.3. The
Commitment of each Additional Lender and/or any additional Commitment of Essex,
Care Capital and/or Galen will be set forth opposite its signature on the
Joinder Agreement to which it is a party.”
;
and by
replacing Section 1.3 thereof with the following
“1.3 CLOSING
The
initial closing (the “Closing”)
at
which the Loans from Essex, Care Capital and Galen shall be disbursed to the
Company will take place at the offices of St. John & Wayne, L.L.C., Two Penn
Plaza East, Newark, New Jersey 07105 upon the satisfaction of the conditions
to
Closing set forth in this Agreement on the date hereof, or such other place,
time and date as shall be mutually agreed to by the Company and the Lenders.
Each Lender agrees to fund additional Loans (“Mandatory Loans”) upon the
Company’s written request during the months and in the percentage of the monthly
amount specified next to each Lender’s name on Schedule 1.3 attached hereto and
on Schedule 1.3A attached hereto. The Company will provide each Lender at least
ten days notice of the date of the Closing of a Mandatory Loan (which date
shall
be binding on all parties), and the amount of Lender’s funding Commitment (based
on the Lender’s commitment percentage set forth on Schedule 1.3 and Schedule
1.3A). Any amounts not borrowed by the Company during any month may be borrowed
by the Company from the Lenders (and will be funded by the Lenders according
to
each Lender’s commitment percentage) in succeeding months until the earlier of
(i) the date advanced to the Company under this Agreement, or (ii) September
30,
2007. The Company and the Lenders acknowledge and agree that additional Loans
(“Non-Mandatory Loans”) may be funded to the Company by any one or more of
Galen, Care Capital, Essex and any Additional Lender pursuant to the terms
of
this Agreement on one or more Closing Dates; provided,
however,
that (i) the aggregate principal amount of the Non-Mandatory Loans shall not
exceed $1,000,000 without the prior written consent of any two (2) of Essex,
Care Capital and Galen,(ii) no such Additional Lender may participate without
the prior written consent of any two (2) of Essex, Care Capital and Galen,
and
(iii) no Lender is under any obligation to fund any Loan other than its
respective Commitment. Upon the funding of any additional Loans (whether
Mandatory Loans or Non-Mandatory Loans), under this Agreement, the Company
and
each Lender and/or Additional Lender making a Loan shall be required to execute
a Joinder Agreement, which Joinder Agreement shall specify the Commitment of
such Lender and/or Additional Lender. Any Additional Lender executing a Joinder
Agreement shall be deemed a “Lender” for all purposes of this Agreement. On the
date of a Closing (each a “Closing
Date”),
the Company shall deliver to each Lender at such Closing a Note, dated the
applicable Closing Date, in the principal amount equal to such Lender’s
Commitment or, in the event Galen, Care Capital and/or Essex shall make an
additional Loan hereunder, the Company shall issue to such Lender an additional
Note dated the applicable Closing Date in the principal amount equal to such
Lender’s additional Commitment. The Company shall deliver the foregoing Notes
against receipt by the Company from each Lender of an amount equal to the
Commitment of such Lender, in each case by wire transfer in immediately
available funds in U.S. dollars to an account designated by the Company.
Notwithstanding anything to the contrary herein, no Lender shall be required
in
any circumstances to make Mandatory Loans (x) in an aggregate amount that
exceeds the aggregate amount of such Lender’s committed amount set forth on
Schedule 1.3 and Schedule 1.3A, or (y) at any time after the occurrence and
during the continuance of an Event of Default (including, for such purposes,
after any event, fact or occurrence that, with the passage of time or giving
of
notice, would become an Event of Default) .”;
and
2
| (b) |
Each
of the June 2005 Loan Agreement, the September 2005 Loan Agreement,
the
November 2005 Loan Agreement and the January 2006 Loan Agreement
is
amended as follows:
|
| (i) |
Section
2.1 is amended to replace “March 31, 2007” with “September 30, 2007 (or
such later date as may be agreed to by Lenders holding not less than
66
2/3% of the outstanding principal amount of the Loans)”; and
|
| (ii) |
Section
5.12 is hereby deleted in its entirety and replaced with the
following:
|
5.12. ROLLOVER
RIGHT
Each
Lender shall have the one-time right (the “Rollover
Right”)
on
the terms provided below, to purchase, through the conversion of all or any
portion of such Lender’s Notes (including principal and accrued and unpaid
interest), securities of the Company, on the first to occur of a Third-Party
Investor Financing, a Conversion Change of Control Transaction or the Maturity
Date (each a “Material
Event”)
after the date hereof, under the terms and conditions set forth in this Section
5.12. Any portion of such Notes which are not so converted pursuant to this
Section 5.12 shall become immediately due and payable simultaneously with such
Material Event.
3
(a) Simultaneous
with the completion of an equity financing pursuant to which the Company issues
its common stock or other equity securities of the Company and, after the
effectiveness thereof, the Company will have cumulatively received at least
$5
million in gross proceeds from equity financings after the date hereof
(including all equity financings after the date hereof, including such final
financing which causes the aggregate cumulative proceeds to exceed $5 million,
but expressly excluding the principal and interest under the Notes for which
a
Lender’s Rollover Right is exercised) from unaffiliated, thirty-party investors
(a “Third-Party Investor Financing”) other than (i) issuances of options or
restricted stock units to employees, consultants or directors, (ii) interest
on
debt payable in common stock or (iii) pursuant to the conversion of warrants,
options, restricted stock units or other convertible securities outstanding
on
the date hereof, each Lender may convert all or any portion (except as provided
below) of its Notes, at the option of such Lender, under either (but not both
or
a combination of each) of the following:
(i)
into the same equity securities as are issued in such Third-Party Investor
Financing on the same terms as provided in such Third-Party Investor Financing
(but at (A) for all Notes other than the Future Bridge Notes, the average price
of all equity securities sold that have combined to exceed the cumulative $5
million in proceeds, and (B) for the Future Bridge Notes, 80% of the average
price of all equity securities sold that have combined to exceed the cumulative
$5 million in proceeds), provided that the conversion price per share of Common
Stock determined pursuant to subsection (A) and (B) shall in no event be less
than $0.21, or
(ii)
(A) for Notes issued in or prior to November 2005 (the “June to November 2005
Bridge Notes”), convert such Notes into Common Stock at a price of $0.20 per
share, (B) for Notes issued after November 2005 and in or prior to May 2006
(the
“January to May 2006 Bridge Notes”), convert such Notes into Common Stock at a
price of $0.225 per share; (C) for Notes issued after May 2006 and in or prior
to October 2006 (the “June to October 2006 Bridge Notes”), convert such Notes
into Common Stock at a price of $0.25 per share; (D)
for Notes issued or to be issued under the Loan Agreement dated January 31,
2006
after October 2006 but prior to March, 2007 (the “November 2006 to February 2007
Bridge Notes”), convert such Notes into Common Stock at a conversion price equal
to the lesser of (X) 80% of the average of the closing bid and asked prices
of
the Common Stock for the twenty (20) trading days immediately preceding the
public announcement of the Third-Party Investor Financing, (Y) the average
price
of the equity securities sold that have combined to exceed the cumulative $5
million in proceeds, and (Z) $0.44 per share; provided that the conversion
price
per share of Common Stock determined pursuant to subsection (X) and (Y) above
shall in no event be less than $0.21; provided further that a Lender choosing
this option must convert all (and not less than all) of its Notes pursuant
to
this option; and (E) for other Notes issued or to be issued under the Loan
Agreement dated January 31, 2006 during March 2007 or thereafter (the “Future
Bridge Notes”), convert such Notes into Common Stock at a conversion price equal
to the lesser of (X) 80% of the average of the closing bid and asked prices
of
the Common Stock for the twenty (20) trading days immediately preceding the
public announcement of the Third-Party Investor Financing, (Y) 80% of the
average price of the equity securities sold that have combined to exceed the
cumulative $5 million in proceeds, and (Z) $0.46 per share; provided that the
conversion price per share of Common Stock determined pursuant to subsection
(X)
and (Y) above shall in no event be less than $0.21; provided further that a
Lender choosing this option must convert all (and not less than all) of its
Notes pursuant to this option.
4
(b) Simultaneous
with the completion of the first Conversion Change of Control Transaction to
occur after the date hereof, each Lender may, at the option of such Lender
convert all (and not less than all) of its Notes as follows, (i) for the June
to
November 2005 Bridge Notes, convert such Notes into Common Stock at a price
of
$0.20 per share, (ii) for the January to May 2006 Bridge Notes, convert such
Notes into Common Stock at a price of $0.225 per share; (iii) for the June
to
October 2006 Bridge Notes, convert such Notes into Common Stock at a price
of
$0.25 per share; and
(iv) for the November 2006 to February 2007 Bridge Notes and the Future Bridge
Notes convert such Notes into Common Stock at a price equal to 80% of the value
per fully diluted share of the Company’s common stock provided in the Conversion
Change of Control Transaction, but in no event less than $0.21 per share;
provided, however, that if such Conversion Change of Control Transaction is
a
transaction of the type described in subsection (D) or (E) of the definition
of
Conversion Change of Control Transaction below, (i) each Lender’s November 2006
to February 2007 Bridge Notes will be convertible, at the option of such Lender,
into Common Stock at a price equal to the lesser of (X) 80% of the average
closing bid and asked prices of the Common Stock for the twenty (20) trading
days immediately preceding the public announcement of such Conversion Change
of
Control Transaction, but in no event less than $0.21 per share; and (Y) $0.44
per share and (ii) each Lender’s Future Bridge Notes will be convertible, at the
option of such Lender, into Common Stock at a price equal to the lesser of
(X)
80% of the average closing bid and asked prices of the Common Stock for the
twenty (20) trading days immediately preceding the public announcement of such
Conversion Change of Control Transaction, but in no event less than $0.21 per
share; and (Y) $0.46 per share. For purposes hereof, a Conversion Change of
Control Transaction shall mean any
of the following in one or a series of related transactions:(A) the acquisition
(other than solely from the Company) by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act)
other than the Company, any Subsidiary, any Lender or its Affiliates or GCE
Holdings, LLC or its Affiliates, of the beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Securities Exchange Act) of more than
sixty-six and 2/3 percent (66.66%) of the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in
the
election of directors (the “Voting Securities”); (B) a merger, consolidation,
share exchange, recapitalization, business combination or similar combination
involving the Company or its capital stock (a "Business
Combination"),
other than a Business Combination in which more than thirty-three and 1/3
percent (33.33%) of the combined voting power of the outstanding voting
securities of the surviving or resulting entity immediately following the
Business Combination is held by the persons who, immediately prior to the
Business Combination, were the holders of the Voting Securities; (C) a sale
or
other transfer (other than license) of all or substantially all of the Company’s
assets (measured by the value or earning power of the assets); (D) the license
or similar agreement by the Company to a third party of all or substantially
all
rights in and to the Company’s Aversion® technology and, as a result of such
transaction, all or substantially all of the Company’s activities consist of
monitoring such arrangements and collecting fees and payments due thereunder;
or
(E) a liquidation or dissolution of the Company.
5
(c) At
the Maturity Date (as the same may be extended pursuant to Section 2.2 hereof)
each
Lender may, at the option of such Lender, convert all (and not less than all)
of
its Notes as follows, (i) for the June to November 2005 Bridge Notes, convert
such Notes into Common Stock at a price of $0.20 per share, (ii) for the January
to May 2006 Bridge Notes, convert such Notes into Common Stock at a price of
$0.225 per share; (iii) for the June to October 2006 Bridge Notes, convert
such
Notes into Common Stock at a price of $0.25 per share; (iv)
for the November 2006 to February 2007 Bridge Notes convert such Notes into
Common Stock at the lesser of (X) 80% of the average of the closing bid and
asked prices of the Common Stock for the twenty (20) trading days immediately
preceding the Maturity Date, but in no event less than $0.21 per share, and
(Y)
$0.44 per share; and (v)
for the Future Bridge Notes convert such Notes into Common Stock at the lesser
of (X) 80% of the average of the closing bid and asked prices of the Common
Stock for the twenty (20) trading days immediately preceding the Maturity Date,
but in no event less than $0.21 per share, and (Y) $0.46 per
share.
(d) The
Company shall give each Lender written notice (a “Material
Event Notice”)
of
the first Material Event to occur after the date hereof, which notice shall
be
provided not later than 20 days prior to the closing of said transaction (or,
in
the case of the Maturity Date, the Maturity Date) and describe the material
terms of such transaction, (or, in the case of the Maturity Date, state the
Maturity Date), the proposed closing date and the principal amount and interest
accrued on the Lender’s outstanding Notes.
(e) Each
Lender may exercise its Rollover Right with respect to the first Material Event
to occur after the date hereof by (i) providing written notice to the Company
exercising such Rollover Right, and (ii) surrendering such Lender’s applicable
Notes, in each case not later than five (5) days prior to the effectiveness
of
the Material Event (the “Rollover
Right Exercise Period”).
If the material terms of the actual Material Event differ in any material
respect from those specified in the Material Event Notice, each Lender shall
be
given the opportunity change the conversion election they had made under the
prior terms (including to elect to convert if they previously did not do
so).
6
(f) Upon
a Lender’s timely exercise of the Rollover Right pursuant to Section 5.12(e)
above, the issuance of the Company’s equity securities upon conversion of such
Lender’s Notes in the applicable Material Event shall occur simultaneous with
the closing of such Material Event (or, in the case of the Maturity Date, on
the
Maturity Date).
(g) Subject
to the last sentence of Section 5.12(e), and provided that the Company has
complied with the terms of this Section 5.12, the Rollover Right provided in
this Section 5.12 shall apply solely to the first Material Event occurring
after
the date hereof, and shall terminate upon the earlier of (i) the expiration
of
the Rollover Right Exercise Period (if not exercised by such Lender pursuant
to
Section 5.12(e)) and (ii) the closing of the first Material Event (or, in the
case of the Maturity Date, the Maturity Date) occurring after the date
hereof.
| (c) |
Each
of the June 2005 Notes, the September 2005 Notes, the November 2005
Notes
and the January 2006 Notes (collectively, the “Notes”) (and each of the
forms of such Notes attached to the June 2005 Loan Agreement, the
September 2005 Loan Agreement, the November 2005 Loan Agreement and
the
January 2006 Loan Agreement) is amended
by:
|
| (d) |
(i) replacing
the words March 31, 2007, wherever they appear therein with “September 30, 2007
(or such later date as may be agreed to by Lenders holding not less than 66
2/3%
of the outstanding principal amount of the Loans)”; and
(ii) appending
the following additional section to such note (to the extent not already
included therein):
“References
to Loan Agreement.
References to the Loan Agreement in this Note shall mean references to the
Loan
Agreement, as amended, and as the same may be further amended, supplemented
or
modified from time to time.”
| (e) |
In
the event a Replacement Note (as hereinafter defined) is issued pursuant
to Section 4 hereof, then in such Replacement Note the words “Secured
Promissory Note” shall be replaced with “Amended and Restated Promissory
Secured Note” and the following section shall be appended thereto:
|
“Amended
and Restated Secured Promissory Note.
This Amended and Restated Secured Promissory Note issued by the Company in
favor
of the Payee amends and restates in its entirety, and is issued by the Company
in replacement of and substitution for a Secured Promissory Note of identical
principal amount issued to Payee pursuant to the Loan Agreement(the “Original
Note”). The Company and the Payee acknowledge and agree that upon the execution
delivery of this Amended and Restated Secured Promissory Note, the Original
Note
shall be null and void and of no further legal force or effect.
“
The
form
of such Replacement Note shall be also be attached to the applicable Loan
Agreement
as an acceptable form of note to be issued pursuant thereto.
7
2. References
to Loan Documents:
Any
reference to any Loan Document in any other Loan Document shall mean the Loan
Document, as amended hereby.
3.
Attachment
to All Notes:
The
Lenders covenant to give a copy of this Omnibus Amendment and Consent to any
purchaser of the June 2005 Notes, the September 2005 Notes, the November 2005
Notes or the January 2006 Notes prior to the actual purchase and to attach
a
copy of this Omnibus Amendment and Consent to any of such notes where the
undersigned is the named payee or holder.
4. Amended
and Restated Notes.
Upon
request of the Company, each Lender agrees to deliver to the Company any of
the
June 2005 Notes, the September 2005 Notes, the November 2005 Notes or the
January 2006 Notes issued to them, in exchange for an amended and restated
Note
(the “Replacement
Note”)
incorporating the amendments set forth in this Omnibus Amendment and Consent.
5. Subordination
Agreement. Each
Lender and Additional Watson Holder agrees to the provisions of this Omnibus
Amendment and Consent, including without limitation, to the amendments to the
June 2005, September 2005 Notes, the November 2005 Notes and the January 2006
Notes and acknowledges that the Subordination Agreement shall remain in full
force and effect .
6. Notes
and Agreements Not Assigned. The
undersigned Lenders and Additional Watson Holders acknowledge that they have
not
transferred, conveyed or assigned any of the Watson Note, the June 2005 Notes,
the September 2005 Notes, the November 2005 Notes or the January 2006 Notes
issued to them and the undersigned Lenders and Additional Watson Holders
acknowledge that they have not assigned any rights under the Loan Documents
or
under the Subordination Agreement.
7. Interest
Payable to Lenders in Stock; Prepayments. Notwithstanding
anything in the Loan Documents to the contrary (except as set forth in Section
5.12 thereof), the Company (a) may, at the Company’s option, in full payment of
all payments of interest on the Notes to the undersigned Lenders (“Interest
Due”)
make
payment of the Interest Due in such number of shares of Common Stock of the
Company equal to the quotient of the Interest Due such Lender, divided by the
average of the closing bid and asked price of the Company’s Common Stock for the
five (5) trading days immediately preceding the due date of such Interest Due,
as reported by the Nasdaq OTCBB, and (b) may not prepay the principal amount
of
any Note, or any interest thereon, in whole or in part, at any time without
the
prior written consent of the holder thereof.
8.
Counterparts:
This
Omnibus Amendment and Consent may be executed in one or more counterparts and
by
different parties hereto in separate counterparts, including by facsimile,
each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument.
9.
Governing
Law:
THIS
OMNIBUS AMENDMENT AND CONSENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
8
IN
WITNESS WHEREOF, each of the Parties have caused this Omnibus Amendment and
Consent to be duly executed and delivered as of the day and year first above
written.
| ACURA PHARMACEUTICALS, INC. | ||
| |
|
|
| By: | /s/ Peter A. Clemens | |
|
Name: Peter A. Clemens |
||
| Title: Sr. Vice President and CFO | ||
|
ACURA
PHARMACEUTICAL
TECHNOLOGIES
, INC.
|
||
| |
|
|
| By: | /s/ Peter A. Clemens | |
|
Name: Peter A. Clemens |
||
| Title: Sr. Vice President and CFO | ||
|
LENDER
AND AGENT:
GALEN
PARTNERS III, L.P.
By:
Claudius, L.L.C., General Partner
610
Fifth Avenue, 5th
Fl.
New
York, New York 10019
/s/ Bruce
Wesson
By:
Bruce Wesson
Its:
General Partner
|
LENDER:
CARE
CAPITAL OFFSHORE INVESTMENTS II, LP
By:
Care Capital II, LLC, as general partner
47
Hulfish Street, Suite 310
Princeton,
NJ 08542
By:
/s/
David
Ramsay
By:
David R. Ramsay
Its:
Authorized Signatory
|
|
|
LENDER:
GALEN
PARTNERS INTERNATIONAL, III, L.P.
By:
Claudius, L.L.C., General Partner
610
Fifth Avenue, 5th
Floor
New
York, New York 10020
/s/ Bruce
Wesson
By:
Bruce Wesson
Its:
General Partner
|
LENDER:
CARE
CAPITAL INVESTMENTS II, LP
By:
Care Capital II, LLC, as general partner
47
Hulfish St., Suite 310
Princeton,
NJ 08542
By:
/s/
David
Ramsay
Name:
David R. Ramsay
Title:
Authorized Signatory
|
|
|
LENDER:
GALEN
EMPLOYEE FUND III, L.P.
By:
Wesson Enterprises, Inc.
610
Fifth Avenue, 5th
Floor
New
York, New York 10020
/s/ Bruce
Wesson
By:
Bruce F. Wesson
Its:
General Partner
|
LENDER:
ESSEX
WOODLANDS HEALTH
VENTURES
V, L.P.
190
South LaSalle Street, Suite 2800
Chicago,
IL 60603
/s/ Immanuel
Thangaraj
By:
Immanuel Thangaraj
Its:
Managing Director
|
|
|
LENDER:
MICHAEL
WEISBROT
1136
Rock Creek Road
Gladwyne,
Pennsylvania 19035
/s/ Michael
Weisbrot
|
LENDER:
SUSAN
WEISBROT
1136
Rock Creek Road
Gladwyne,
Pennsylvania 19035
/s/ Susan
Weisbrot
|
|
|
LENDER:
DENNIS
ADAMS
120
Kynlyn Road
Radnor,
Pennsylvania 19312
/s/ Dennis
Adams
|
LENDER:
GEORGE
E. BOUDREAU
222
Elbow Lane
Haverford,
PA 19041
/s/ George
Boudreau
|
|
|
ADDITIONAL
WATSON HOLDER:
PETER
STIEGLITZ
RJ
Palmer LLC
156
West 56th Street, 5th Floor
New
York, New York 10019
/s/ Peter
Stieglitz
|
ADDITIONAL
WATSON HOLDER:
JOHN
E. HEPPE, JR.
237
W. Montgomery Avenue
Haverford,
Pennsylvania 19041
/s/ John
Heppe
|
|
Schedule
1.3
Funding
Schedule of $ 2,000,000 in Bridge Loans
All
Amounts Under This Schedule Have Already Been Funded
|
|
Month
|
|
|
|||||||
|
Commitment
to
|
Commitment
|
Percentage
of
|
||||||||
|
Lender
Name
|
be
Funded
|
Amount
|
Commitment
|
|||||||
|
GALEN
PARTNERS III, L.P.
|
November
2006
|
$
|
203,014.61
|
30.452191
|
%
|
|||||
|
GALEN
PARTNERS INTERNATIONAL, III,
L.P.
|
$
|
18,376.31
|
2.756447
|
%
|
||||||
|
GALEN
EMPLOYEE FUND III, L.P.
|
$
|
831.31
|
0.124696
|
%
|
||||||
|
ESSEX
WOODLANDS HEALTH VENTURES
V, L.P.
|
$
|
222,222.20
|
33.33333
|
%
|
||||||
|
CARE
CAPITAL INVESTMENTS II, LP
|
$
|
207,955.53
|
31.19333
|
%
|
||||||
|
CARE
CAPITAL OFFSHORE INVESTMENTS
II, LP
|
$
|
14,266.67
|
2.14000
|
%
|
||||||
|
TOTAL
FOR NOVEMBER 2006
|
$
|
666,666.67
|
||||||||
|
GALEN
PARTNERS III, L.P.
|
December
2006
|
$
|
203,014.61
|
30.452191
|
%
|
|||||
|
GALEN
PARTNERS INTERNATIONAL, III,
L.P.
|
$
|
18,376.31
|
2.756447
|
%
|
||||||
|
GALEN
EMPLOYEE FUND III, L.P.
|
$
|
831.31
|
0.124696
|
%
|
||||||
|
ESSEX
WOODLANDS HEALTH VENTURES
V, L.P.
|
$
|
222,222.20
|
33.33333
|
%
|
||||||
|
CARE
CAPITAL INVESTMENTS II, LP
|
$
|
207,955.53
|
31.19333
|
%
|
||||||
|
CARE
CAPITAL OFFSHORE INVESTMENTS
II, LP
|
$
|
14,266.67
|
2.14000
|
%
|
||||||
|
TOTAL
FOR DECEMBER 2006
|
$
|
666,666.67
|
||||||||
|
GALEN
PARTNERS III, L.P.
|
January
2007
|
$
|
203,014.61
|
30.452191
|
%
|
|||||
|
GALEN
PARTNERS INTERNATIONAL, III,
L.P.
|
$
|
18,376.31
|
2.756447
|
%
|
||||||
|
GALEN
EMPLOYEE FUND III, L.P.
|
$
|
831.31
|
0.124696
|
%
|
||||||
|
ESSEX
WOODLANDS HEALTH VENTURES
V, L.P.
|
$
|
222,222.20
|
33.33333
|
%
|
||||||
|
CARE
CAPITAL INVESTMENTS II, LP
|
$
|
207,955.53
|
31.19333
|
%
|
||||||
|
CARE
CAPITAL OFFSHORE INVESTMENTS
II, LP
|
$
|
14,266.67
|
2.14000
|
%
|
||||||
|
TOTAL
FOR JANUARY 2007
|
$
|
666,666.67
|
||||||||
Schedule
1.3A
Funding
Schedule of $ 1,200,000 in Bridge Loans
|
|
Month
|
|
|
|||||||
|
Commitment
to
|
|
Commitment
|
|
Percentage
of
|
||||||
|
Lender
Name
|
|
be
Funded
|
|
Amount
|
Commitment
|
|||||
|
GALEN
PARTNERS III, L.P.
|
March
2007
|
$
|
182,713.15
|
30.452191
|
%
|
|||||
|
GALEN
PARTNERS INTERNATIONAL, III,
L.P.
|
$
|
16,538.68
|
2.756447
|
%
|
||||||
|
GALEN
EMPLOYEE FUND III, L.P.
|
$
|
748.18
|
0.124696
|
%
|
||||||
|
ESSEX
WOODLANDS HEALTH VENTURES
V, L.P.
|
$
|
199,999.98
|
33.33333
|
%
|
||||||
|
CARE
CAPITAL INVESTMENTS II, LP
|
$
|
187,159.98
|
31.19333
|
%
|
||||||
|
CARE
CAPITAL OFFSHORE INVESTMENTS
II, LP
|
$
|
12,840.00
|
2.14000
|
%
|
||||||
|
TOTAL
FOR March 2007
|
$
|
600,000
|
||||||||
|
GALEN
PARTNERS III, L.P.
|
April
2007
|
$
|
91,356.57
|
30.452191
|
%
|
|||||
|
GALEN
PARTNERS INTERNATIONAL, III, L.P
|
$
|
8,269.34
|
2.756447
|
%
|
||||||
|
GALEN
EMPLOYEE FUND III, L.P.
|
$
|
374.09
|
0.124696
|
%
|
||||||
|
ESSEX
WOODLANDS HEALTH VENTURES
V, L.P.
|
$
|
99,999.99
|
33.33333
|
%
|
||||||
|
CARE
CAPITAL INVESTMENTS II, LP
|
$
|
93,579.99
|
31.19333
|
%
|
||||||
|
CARE
CAPITAL OFFSHORE INVESTMENTS
II, LP
|
$
|
6,420.00
|
2.14000
|
%
|
||||||
|
TOTAL
FOR April 2007
|
$
|
300,000
|
||||||||
|
GALEN
PARTNERS III, L.P.
|
May
2007
|
$
|
91,356.57
|
30.452191
|
%
|
|||||
|
GALEN
PARTNERS INTERNATIONAL, III,
L.P.
|
$
|
8,269.34
|
2.756447
|
%
|
||||||
|
GALEN
EMPLOYEE FUND III, L.P.
|
$
|
374.09
|
0.124696
|
%
|
||||||
|
ESSEX
WOODLANDS HEALTH VENTURES
V, L.P.
|
$
|
99,999.99
|
33.33333
|
%
|
||||||
|
CARE
CAPITAL INVESTMENTS II, LP
|
$
|
93,579.99
|
31.19333
|
%
|
||||||
|
CARE
CAPITAL OFFSHORE INVESTMENTS
II, LP
|
$
|
6,420.00
|
2.14000
|
%
|
||||||
|
TOTAL
FOR May 2007
|
$
|
300,000
|
||||||||
CONTACT:
Acura
Pharmaceuticals, Inc.,
Investor
Relations, Peter A. Clemens, SVP & CFO 847-705-7709
FOR
IMMEDIATE RELEASE
ACURA
PHARMACEUTICALS, INC. SECURES BRIDGE FUNDING
Palatine,
IL, April 2, 2007:
Acura
Pharmaceuticals, Inc. (OTC.BB-ACUR) today announced it has secured gross
proceeds of $600,000 and a commitment for additional funding of up to $600,000
under a term loan agreement (the “March 2007 Bridge Loan”) with Essex Woodlands
Health Ventures 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 "Bridge Lenders").
The March 2007 Bridge Loan bears an annual interest rate of 10%, is secured
by a
lien on all assets of the Company and its subsidiary, is senior to all other
Company debt, and matures on September 30, 2007. In addition, all prior Company
bridge loans were amended (the "Bridge Loan Amendment") to extend their maturity
date to September 30, 2007. Including the $600,000 secured today, the Company
has a total of $9.3 million in bridge loans (collectively the "Bridge Loans")
outstanding and due on September 30, 2007.
The
Bridge Lenders have the right to convert the Bridge Loans into the Company’s
common stock at certain specified prices per share upon the occurrence of
any
one of certain triggering events including, (i) the completion of a third-party
equity financing providing gross proceeds to the Company in the aggregate
amount
of at least $5.0 million; (ii) a change of control transaction or (iii) upon
the
maturity of the Bridge Loans. The Bridge Loan Amendment may be reviewed in
the
Company’s Form 8-K filed with the Securities and Exchange Commission.
Use
of Proceeds and Cash Reserves
The
Company will utilize the net proceeds from the March 2007 Bridge Loan to
fund
product development and licensing activities for its Aversion® Technology.
The
Company estimates that its current cash reserves, including the net proceeds
from the March 2007 Bridge Loan, will fund operations through
May, 2007.
To
continue operating thereafter, the Company must raise additional financing
or
enter into appropriate collaboration agreements with third parties providing
for
cash payments to the Company. No assurance can be given that the Company
will be
successful in obtaining any such financing or in securing collaborative
agreements with third parties on acceptable terms, if at all, or if secured,
that such financing or collaborative agreements will provide for payments
to the
Company sufficient to continue funding operations. In the absence of such
financing or third-party collaborative agreements, the Company will be required
to scale back or terminate operations and/or seek protection under applicable
bankruptcy laws.
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 Company’s ability
to secure additional financing to fund operations, the Company’s ability to
enter into contractual arrangements with qualified pharmaceutical partners
to
license, develop and commercialize the Company’s technology and product
candidates, the Company’s ability to avoid infringement of patents, trademarks
and other proprietary rights or trade secrets of third parties, 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. All Acura Pharmaceuticals,
Inc. press releases may be reviewed at www.acurapharm.com.