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
October
11, 2007
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 (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
5.03 Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On
October 11, 2007, the Registrant’s Board of Directors approved an amendment to
the Registrant’s By-Laws, as amended (the "By-Laws"). The amendment allows for
the issuance of either certificated or uncertificated shares of stock of the
Registrant. Previously, only certificated shares of stock could be issued.
The
amendment is effective as of October 11, 2007. This amendment to the By-Laws
will permit direct or "book-entry" registration of shares of the Registrant’s
capital stock. The amended and restated By-Laws, as described herein, are
attached hereto as Exhibit 3.1.
Item
9.01 Financial
Statements and Exhibits
Exhibit
Number
|
Description
|
|
|
3.1
|
Amended
and Restated By-Laws of Acura Pharmaceuticals,
Inc.
|
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 Clemens
|
|
|
Peter
A. Clemens
|
|
|
Senior
Vice President & Chief Financial Officer
|
|
|
|
Date:
October 12, 2007
|
|
|
EXHIBIT
INDEX
Exhibit
Number
|
Description
|
|
|
3.1
|
Amended
and Restated By-Laws of Acura Pharmaceuticals,
Inc.
|
Unassociated Document
As
Amended: October 11, 20071
RESTATED
BY-LAWS
of
ACURA
PHARMACEUTICALS, INC.
ARTICLE
I.
STOCKHOLDERS.
SECTION
1. Annual
Meeting.
The
annual meeting of the stockholders shall be held at such time and place within
or without the State of New York as
the
Board of Directors may from time to time designate each year for the purpose
of
electing directors and of transacting such other business as may properly come
before the meeting. The directors shall be chosen by a plurality of the votes
at
such election.
SECTION
2. Special
Meetings.
Special
meetings of the stockholders may be called by a majority of the members of
the
Board of Directors or the President and shall be called at any time by the
President, any Vice President or the Secretary upon the written request of
stockholders owning a majority of the outstanding shares of the Corporation
entitled to vote at the meeting, and shall be held at such time and place in
the
City and State of New York as may be fixed in the call and stated in the
notice.
SECTION
3. Notice
of Meetings.
Notice
of each meeting of stockholders shall be in writing and signed by the President
or a Vice President or the Secretary or an Assistant Secretary. Such notice
shall state the purpose or purposes for which the meeting is called and the
time
when and the place where it is to be held, and copy thereof shall be served,
either personally or by mail, upon each stockholder of record entitled to vote
at such meeting, and upon each stockholder of record who, by reason of any
action proposed at such meeting, would be entitled to have his stock appraised
if such action were taken, not less than ten nor more than forty days before
the
meeting. If mailed, it shall be directed to a stockholder at his address as
it
appears on the stockbook unless he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be mailed to some
other address, in which case it shall be mailed to the address designated in
such request.
A
meeting
of stockholders may be held without notice, and any action proper to be taken
by
the stockholders may be taken thereat, if at any time before or after such
action be completed the requirements for notice be waived in writing by all
the
stockholders of record entitled to notice of such meeting or by their attorneys
thereunto authorized.
1
Article
I, Sections 9 and 10 were amended and Section 12 was added to accommodate
uncertificated shares. Article I, Section 1 was amended to provide that meetings
could be held outside New York at any time. Article I, Section 8 was amended
to
provide for one or more inspectors appointed by the Board of Directors. Minor
technical and typographical changes were made to other
sections.
SECTION
4. Qualification
of Voters.
Unless
otherwise provided in a certificate filed pursuant to law, every stockholder
of
record of the Corporation shall be entitled at every meeting of the stockholders
to one vote for every share of stock standing in his name on the books of the
Corporation.
Shares
of
its own stock belonging to the Corporation at the time of the meeting or at
the
time a voting record therefor, as hereafter provided, is taken, shares retired
before the meeting and no longer deemed to be issued and outstanding at the
time
of the meeting although outstanding at the time a voting record therefor is
taken, and shares issued before the meeting but after a voting record therefor
is taken, shall not be voted, directly or indirectly, and shall not be counted
in determining a quorum or the number of shares necessary to constitute a quorum
or to take any action contemplated, unless otherwise provided by
law.
The
books
and papers containing the list of stockholders shall be produced at any meeting
of the stockholders upon the request of any stockholder. If the right to vote
at
any such meeting shall be challenged, the inspectors of election, or other
person presiding thereat, shall require such books to be produced as evidence
of
the right of the person challenged to vote at such meetings and all persons
who
may appear from such books to be stockholders of the Corporation entitled to
vote may vote at such meeting in person or by proxy, subject to the provisions
of the law.
SECTION
5. Determination
of Stockholders of Record for Certain Purposes.
The
Board of Directors may prescribe a period not exceeding forty days prior to
any
meeting of the stockholders or prior to the last day on which the consent or
dissent of stockholders may be effectively expressed for any purpose without
a
meeting, or prior to the payment of any dividend, or the making of any
distribution, or the delivery of evidence of rights or evidences of interests
arising out of any change, conversion or exchange of capital stock, during
which
no transfer of stock on the books of the corporation may be made. In lieu of
prohibiting the transfer of stock as aforesaid, the Board of Directors may
fix a
day and hour, not more than forty days prior to any such meeting, or to any
such
last day for the expression of consent or dissent, or to any such dividend
payment, distribution or delivery, as the time as of which stockholders entitled
to notice of and to vote at such meeting, or to express such consent or dissent
or to the receipt of such dividend payment, distribution or delivery, as the
case may be, shall be determined, and all persons who were stockholders of
record at such time and no others shall be entitled to notice of and to vote
at
such meeting, to express such consent or dissent, or to the receipt of such
dividend payment, distribution or delivery, as the case may be.
SECTION
6. Quorum.
The
amount of stock which must be represented at a meeting of the stockholders
to
constitute a quorum, unless otherwise provided by law, shall be a majority
of
the shares of the Corporation which are entitled to be voted at such meeting,
represented by holders of record entitled to vote thereat, present in person
or
by proxy.
If
at any
meeting of the stockholders the amount of stock so represented shall not
constitute a quorum or shall be less than the amount required by statute to
take
the action then contemplated, the holders of a majority of the shares of stock
so represented may adjourn the meeting from time to time during the period
of
not more than forty days thereafter, without notice other than announcement
at
the meeting, until the required amount of stock shall be represented at the
meeting, when such action may be taken as was contemplated by the notice of
the
meeting.
SECTION
7. Proxies.
Every
stockholder of the Corporation entitled to vote at any meeting thereof may
vote
by proxy. Every proxy must be executed in writing by the stockholder or by
his
duly authorized attorney. No proxy shall be valid after the expiration of eleven
months from the date of execution unless the stockholder executing it shall
have
specified therein its duration.
SECTION
8. Inspectors
of Election.
One or
more inspectors of election shall be appointed by the Board of Directors to
serve at each election of directors by stockholders or in any other case in
which inspectors may act. The inspectors so appointed, before entering upon
the
discharge of their duties, shall be sworn faithfully to execute the duties
of
inspectors at such meeting with strict impartiality, and according to the best
of their ability, and the oath so taken shall be subscribed by them. Thereupon
the inspectors shall take charge of the polls and after the balloting shall
make
a certificate of the result of the vote taken. No director or candidate for
the
office of director shall be appointed such inspector.
SECTION
9. Stock
Certificates.
The
shares of the Corporation shall be represented by certificates, or shall be
uncertificated shares. Each owner of stock of the Corporation shall be entitled
to have a certificate, in such form as shall be approved by the Board,
certifying the number of shares of stock of the Corporation owned. To
the
extent that shares are represented by certificates, such certificates shall
be
in such forms as the Board of Directors may from time to time prescribe, signed
by the President or a Vice President and the Secretary or an Assistant Secretary
or the Treasurer or an Assistant Treasurer, and sealed with the seal of the
Corporation. Such seal may be a facsimile, engraved or printed. Where any such
certificate in signed by a transfer agent or transfer clerk, the signatures
of
any such President, Vice-President, Secretary, Assistant Secretary, Treasurer
and Assistant Treasurer upon such certificate may be facsimiles, engraved or
printed. In case any such officer who has signed or whose facsimile signature
has been placed upon such certificate shall have ceased to be such before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such officer had not ceased to be such at the date of its
issue.
Every
certificate of stock issued by the Corporation shall plainly state upon the
face
thereof the number, kind and class of shares, including series, if any, which
it
represents.
SECTION
10. Transfers
of Stock.
Transfers of shares of stock of the Corporation shall be made on the registry
of
stockholders of the Corporation only upon authorization by the registered holder
thereof, or by an attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary or with a transfer agent or transfer
clerk, and, if such shares are represented by a certificate, on surrender of
the
certificate or certificates for such shares properly endorsed, or accompanied
by
a duly executed stock transfer power and the payment of all taxes thereon.
The
person in whose names shares of stock shall be listed in the registry of
stockholders of the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation.
No
share
shall be transferable until all previous calls thereon shall have been fully
paid in.
SECTION
11. Lost,
Stolen or Destroyed Stock Certificates.
No
certificate for shares of stock of the Corporation shall be issued in place
of
any certificate alleged to have been lost, stolen or destroyed, except upon
production of such evidence of the loss, theft or destruction, and upon such
indemnification of the Corporation and its agents to such extent and in such
manner as the Board of Directors may from time to time prescribe.
SECTION
12. Regulations.
The
Board of Directors may make such additional rules and regulations as it may
deem
expedient, not inconsistent with these By-laws, concerning the issue, transfer
and registration of certificated or uncertificated shares of stock of the
Corporation.
ARTICLE
II.
BOARD
OF
DIRECTORS.
SECTION
1. Power
of Board and Qualification of Directors.
The
business of the Corporation shall be managed by its Board of Directors, all
of
whom shall be of full age and need not be stockholders. Directors shall be
elected at the annual meetings of the stockholders and each director shall
be
elected to serve until the next annual meeting of stockholders and until his
successors shall be elected and shall qualify.
SECTION
2. Number.
The
number of directors of the Corporation shall be not less than three nor more
than eleven as fixed from time to time within said limits by the Board of
Directors.
SECTION
3. Meetings
or the Board.
The
annual meeting of the Board of Directors shall be held in each year after the
adjournment of the annual stockholders' meeting and on the same day. If a quorum
of the directors are not present on the day appointed for the annual meeting,
the meeting shall be adjourned to some convenient day. No notice need be given
of the annual meeting of the Board.
Meetings
of the Board of Directors shall be held at such place as may from time to time
be specified in the call of any meeting.
Regular
meetings of the Board of Directors shall be held at such times as may from
time
to time be fixed by resolution of the Board, and no notice need be given of
regular meetings.
Special
meetings of the Board may be called at any time by the President and shall
be
called by the President, any Vice President or the Secretary upon the written
request of any two members of the Board, to be held not more than five days
after receipt of the said request. Notice of special meetings may be oral,
electronic or written and shall be served on or sent or mailed to each director
not less than forty-eight hours before such meeting.
A
special
meeting of the Board of Directors may be held without notice, and any action
proper to be taken by the Board of Directors may be taken thereat, if every
member of the Board of Directors is present or if at any time before or after
such action be completed the requirement for notice be waived in writing by
every director entitled to notice of such meeting.
SECTION
4. Quorum
and Power of a Majority.
A
majority of the Board of Directors at a meeting duly assembled shall be
necessary to constitute a quorum for the transaction of business and the act
of
a majority of the directors present at such meeting shall be the act of the
Board of Directors.
SECTION
5. Resignations.
Any
director of the Corporation may resign at any time by giving written notice
to
the Board of Directors or to the President or to the Secretary of the
Corporation. Such resignation shall take effect at the time specified therein;
and unless otherwise Specified therein the acceptance of such resignation shall
not be necessary to make it effective.
SECTION
6. Vacancies.
Vacancies in the Board of Directors, whether caused by death, resignation,
increase in the number of directors, or otherwise, may be filled by a vote
of a
majority of the directors in office at the time. However, in case the number
of
directors be increased by action of the stockholders, the additional directors
may be elected by vote of the stockholders at the meeting at which the increase
is effected.
SECTION
7. Compensation.
Directors, as such, shall not receive any stated salary for their services,
but
by resolution of the Board of Directors a fixed sum and expenses of attendance,
if any may be allowed for attendance at each meeting of the Board. However,
this
by-law shall not be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of the Executive Committee and of other committees may be allowed like
compensation for attending committee meetings.
SECTION
8. Executive
Committee.
The
Board of Directors may, by vote of a majority of the Board, designate an
Executive Committee, to consist of the President and such other member or
members of the Board of Directors as may be designated by the Board of
Directors. The Executive Committee shall have and may exercise, so far as may
be
permitted by law, all the powers of the Board of Directors in the management
of
the business, affairs and property of the Corporation during the intervals
between meetings of the Board of Directors and shall have power to authorize
the
seal of the Corporation to be affixed to all papers which may require it; but
the Executive Committee shall not have power to fill vacancies in the Board
of
Directors or to change the membership of, or to fill vacancies in, the Executive
Committee, or to make or amend the by-laws of the Corporation. The Board of
Directors shall have the power at any time to fill vacancies in, to change
the
membership of, or to dissolve the Executive Committee. The Executive Committee
may hold meetings and make rules for the conduct of its business and appoint
such committees and assistants as it shall from time to time deem necessary.
A
majority of the members of the Executive Committee shall constitute a quorum
determine its action. All action of the Executive Committee shall be reported
at
the meeting or the Board of Directors next succeeding such action.
SECTION
9. Other
Committees.
The
Board of Directors may in its discretion appoint other committees which shall
have such powers and perform such duties as from time to time may be prescribed
by the Board of Directors. A majority of the members of any such committee
may
determine its action and fix the time and place of its meetings, unless the
Board shall otherwise provide. The Board of Directors shall have power at any
time to change the membership of any such committee, to fill vacancies, and
to
dissolve any such committee.
SECTION
10. Telephonic
Meetings.
Unless
otherwise restricted by the Certificate of Incorporation or these By-Laws,
members of the Board of Directors or any committee thereof may participate
in a
meeting of such Board or committee by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting
to
hear each other at the same time, and participation in a meeting pursuant to
such means shall constitute presence in person at such meeting.
ARTICLE
III.
OFFICERS.
SECTION
1. Officers.
The
Board of Directors, as soon as may be after the annual election of directors,
shall elect a President, one or more Vice Presidents, a Secretary and a
Treasurer, and from time to time may appoint such other officers (including
among others, an Executive Vice President, one or more Assistant Secretaries
and
one or more Assistant Treasurers), agents and employees as it may deem proper.
More than one office may be hold by the same person. The President shall be
chosen from among the directors but no other officer need be a
director.
SECTION
2. Salaries
of Officers.
The
salaries of all officers of the Corporation shall be fixed by the Board of
Directors.
SECTION
3. Term
of Office.
The
term of office for all officers shall be for one year and until their respective
successors are chosen and qualified.
SECTION
4. Powers
and Duties.
(a) The
President
The
President shall preside at all meetings of the directors and shall generally
oversee the management of the business of the Corporation. He shall be the
chief
executive officer of the Corporation and shall supervise the business and
affairs of the Corporation. He shall preside at all meetings of stockholders.
Except as the Board of Directors may otherwise direct and except as otherwise
expressly provided in these by-laws or by law, the President shall execute
any
action on behalf of the Corporation as may from time to time be taken by the
Board of Directors.
(b) Vice
Presidents
The
Vice
Presidents, in the order designated by the Board of Directors, during the
absence or disability of the President, shall perform the duties and exercise
the powers of the President, and shall perform such other duties as the Board
of
Directors shall prescribe.
(c) Secretary
The
Secretary shall attend all sessions of the Board and all meetings of the
stockholders and record all votes and the minutes of all proceedings in a book
to be kept for that purpose. He shall give or cause to be given notice of all
meetings of stockholders and special meetings of the Board of Directors and
shall Perform such other duties as may be prescribed by the Board of Directors.
He shall keep in safe custody the seal of the Corporation and affix it to any
instrument when authorized by the Board of Directors.
(d) Treasurer
The
Treasurer shall have the custody of the corporate funds and securities and
shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit all moneys and other valuable effects
in
the name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. He shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking proper vouchers
for such disbursements, and shall render to the President and directors at
the
regular meetings of the Boards or whenever they may require it, an account
of
all his transactions as Treasurer and of the financial condition of the
Corporation.
The
Treasurer shall, if required by the Board of Directors, give the Corporation
a
bond in such sum or sums and with such surety or sureties as shall be
satisfactory to the Board of Directors, conditioned upon the faithful
performance of his duties and for the restoration to the Corporation in case
of
his death, resignation, retirement or removal from office of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
SECTION
5. Books
to be Kept.
The
officers shall keep at the office of the Corporation correct books of account
of
all its business and transactions, and a book to be known as the stockbook,
containing the names, alphabetically arranged, of all persons who are
stockholders of the Corporation, showing their places of residence, the number
of shares of stock held by them respectively, the time when they respectively
became the owners thereof, and the amount paid thereon.
SECTION
6. Checks,
Notes, etc.
All
checks and drafts on the Corporation's bank accounts and all bills of exchange
and promissory notes and all acceptances, obligations and other instruments
for
the payment of money, shall be signed by such officer or officers or agent
or
agents as shall be thereunto authorized from time to time by the Board of
Director.
ARTICLE
IV.
OTHER
MATTERS.
SECTION
1. Corporate
Seal.
The
corporate seal shall have inscribed thereon the name of the Corporation and
such
other appropriate legend as the Board of Directors may from time to time
determine. In lieu of the corporate seal, when so authorized by the Board of
Directors or a duly empowered committee thereof, a facsimile thereof may be
affixed or reproduced.
SECTION
2. Fiscal
Year.
The
fiscal year of the Corporation shall be determined by the Board of
Directors.
SECTION
3. Amendments.
The
by-laws of the Corporation may be amended, added to or repealed at any meeting
of the stockholders by the vote of the holders of record of a majority of the
outstanding shares of the Corporation entitled to vote at the meeting, provided
that notice of the proposed change shall have been given in the notice of the
meeting. The by-laws may also be, amended or Added to or repealed at any meeting
of the Board of Directors by the vote of a majority of all members of the Board,
provided that notice of the proposed change shall have been given in the notice
of the meeting. However, any by-laws hereafter duly adopted at a meeting of
the
stockholders shall control action of the directors except as therein otherwise
provided.
SECTION
4. Reliance
Upon Reports.
Each
Director, each officer and each member of any committee designated by the Board
of Directors shall in the performance of his duties be fully protected in
relying in good faith upon the books of account or reports made to the
Corporation by any of its officials, or by an independent certified public
accountant, or by an appraiser selected with reasonable care by the Board of
Directors, or by such officer or by such committee, or in relying in good faith
upon other records of the Corporation.
SECTION
5. Removals.
(a) The
stockholders may, at any meeting called for the purpose, by vote of a majority
of the capital stock issued and outstanding and entitled to vote thereon, remove
any director from office. The Board of Directors may, at any meeting called
for
the purpose, by an affirmative vote of two-thirds of their entire number holding
office at the time, and for good cause shown, remove any director from
office.
(b) The-Board
of Directors may, at any meeting called for the purpose, by a vote of a majority
of their entire number holding office at the time, remove from office any
officer or agent of the Corporation or any member of any committee appointed
by
the Board of Directors or by any committee appointed by the Board of Directors
or by any officer or agent of the Corporation.
SECTION
6. Indemnification
. It is
expressly provided that any and every person made a party to any action, suit,
or proceeding by or in the right of the corporation to procure a judgment in
its
favor by reason of the fact that he, his testator or intestate, is or was a
director or officer of this corporation or of any corporation which be served
as
such at the request of this corporation, may be indemnified by the corporation
to the full extent permitted by law, against any and all reasonable expenses,
including attorneys' fees, actually and necessarily incurred by him in
connection with the defense of such action or in connection with any appeal
therein, except in relation to matters as to which it shall be adjudged in
such
action, suit or proceeding that such officer or director has breached his duty
to the corporation.
It
is
further expressly provided that any and every person made a party to any action,
suit, or proceeding other than one by or in the right of the corporation to
procure a judgment in its favor, whether civil or criminal, including an action
by or in the right of any other corporation of any type or kind, domestic or
foreign, which any director or officer of the corporation served in any capacity
at the request of the corporation, by reason of the fact that he, his testator
or interstate, was a director or officer of the corporation, or served such
other corporation in any capacity, may be indemnified by the corporation, to
the
full extent permitted by law, against judgments, fines, amounts paid in
settlement, and reasonable expenses, including attorneys' fees; actually and
necessarily incurred as a result of such action, suit or proceeding, or any
appeal therein, if such person acted in good faith for a purpose which he
reasonably believed to be in the best interests of the corporation and, in
criminal actions or proceedings, in addition, had no reasonable cause to believe
that his conduct was unlawful.