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
30, 2007
Date
of
Report (Date of earliest event reported)
___________________________________________________________
ACURA
PHARMACEUTICALS, INC.
(Exact
Name of Registrant as Specified in Charter)
___________________________________________________________
|
State
of New York
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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
2.04 Triggering Events That Accelerate or Increase a Direct Financial Obligation
or an Obligation under an Off-Balance Sheet Arrangement.
On
October 30, 2007, Acura Pharmaceuticals, Inc. (the “Company”) and King
Pharmaceuticals Research and Development, Inc., a subsidiary of King
Pharmaceuticals, Inc. (“King”), entered into a license, development and
commercialization agreement (the “Agreement”). Under the terms of the Agreement,
the Company will receive from King an upfront non-refundable cash payment of
$30
million upon the satisfaction of the closing conditions and the effectiveness
of
the Agreement. The Agreement requires that simultaneous with the closing of
the
Agreement, the Company pre-pay in full its secured term loan in the principal
amount of $5 million plus accrued interest, under the Company’s Loan Agreement
dated March 29, 2000, as amended (the “Loan Agreement”) with Essex Woodlands
Health Ventures 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., Galen Employee Fund III, L.P. and certain individual
lenders. In addition, the Loan Agreement provides that the principal amount
and
interest owing under the Loan Agreement must be mandatorily pre-paid by the
Company, in whole or in part, within ten days of receipt of proceeds in excess
of $5 million received by the Company from a third party pharmaceutical company
or companies pursuant to which the Company, in one or more transactions, grants
such pharmaceutical company or companies rights to any of the Company’s products
or product candidates or rights to the Company’s Aversion® Technology. As a
result, notwithstanding the requirement in the Agreement that the full principal
and accrued interest under the Loan Agreement be pre-paid, the $30 million
up-front payment to be paid to the Company by King upon the effectiveness of
the
Agreement would otherwise have triggered the Company’s mandatory prepayment
obligation under the Loan Agreement.
Therefore,
simultaneous with the Company’s receipt from King of the $30 million upfront
cash payment contemplated in the Agreement, the Company will prepay the $5
million principal amount plus unpaid interest as provided in the Loan
Agreement.
Item
5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
At
the
Company’s shareholder’s meeting on December 14, 2006, the shareholders granted
the Board of Directors the authority to effect a reverse split of the Company’s
common stock at one of six ratios (including a ratio of one for ten) prior
to
December 14, 2007. On October 30, 2007, the Board of Directors of the Company
approved an amendment to the Company’s Restated Certificate of Incorporation to
take effect on or about December 5, 2007, subject to compliance with OTC
Bulletin Board requirements, to effect a one for ten reverse stock split of
the
Company’s common stock. The form of the Certificate of Amendment to the
Company’s Restated Certificate of Incorporation is attached hereto as Exhibit
3.1.
If
the
total
number of shares that a shareholder holds is not evenly divisible by ten, the
shareholder will not receive a fractional share, but instead will receive cash
in an amount equal to the fraction of a share that the shareholder otherwise
would have been entitle to receive, multiplied by the average of the high bid
and low asked prices of one share of the Company’s common stock, as reported by
the OTC Bulletin Board, for the ten business days immediately preceding the
effective date of the reverse stock split for which transactions in the common
stock are reported.
2
Item
9.01 Financial
Statements and Exhibits
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Exhibit Number
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Description
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|
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3.1
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Form
of Certificate of Amendment to the Registrant’s Restated Certificate of
Incorporation
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|
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99.1
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Press
Release of the Registrant dated October 31,
2007.
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3
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.
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ACURA
PHARMACEUTICALS, INC.
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|
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By:
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/s/
Peter Clemens
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Peter
A. Clemens
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|
|
Senior
Vice President & Chief Financial
Officer
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|
Date: October
30, 2007
4
EXHIBIT
INDEX
|
Description
|
||
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3.1
|
Form
of Certificate of Amendment to the Registrant’s Restated Certificate of
Incorporation
|
|
|
99.1
|
Press
Release of the Registrant dated October 31,
2007.
|
5
CERTIFICATE
OF AMENDMENT OF
RESTATED
CERTIFICATE OF INCORPORATION
OF
ACURA
PHARMACEUTICALS, INC.
Under
Section 805 of the Business Corporation Law
WE,
THE
UNDERSIGNED, Andrew D. Reddick and Peter A. Clemens, being respectively the
President and the Secretary of Acura Pharmaceuticals, Inc., hereby
certify:
1. The
name
of the Corporation is Acura Pharmaceuticals, Inc.. The Corporation was
originally incorporated under the name of Halsey Drug Co. Inc.
2. The
Certificate of Incorporation was filed by the Department of State on April
10,
1935 and has been amended at various times by action of the Board of Directors
and shareholders of the Corporation.
3. The
Restated Certificate of Incorporation, is further amended as
follows:
|
(a)
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Article
THIRD of the Restated Certificate of Incorporation, relating to the
amount
of authorized capital stock of the Corporation, is amended so that
(i)
every ten (10) shares of the Corporation’s common stock, par value $0.01
per share (the “Old Common Stock”), issued and outstanding immediately
prior to this Certificate of Amendment to the Restated Certificate
of
Incorporation of the Corporation becoming effective pursuant to the
Business Corporation Law of the State of New York (the “Effective Time”),
will be automatically reclassified as and converted into one share
of
common stock, par value $0.01 per share. As of the Effective Time
there
are ______ shares of Common Stock issued and outstanding, which will
be
reclassified into __________ shares of Common Stock, thereby effecting
a
reduction of stated capital by $__________. To effect the foregoing,
Article THIRD is hereby amended by replacing the paragraph preceding
“Section
1. Preferred Stock.”
with the following:
|
"THIRD:
The Corporation is authorized to issue two classes of stock, to be designated,
respectively, “Common Stock” and “Preferred Stock”. The total number of shares
which the Corporation is authorized to issue is 940,000,000 of which (A)
290,000,000 shares shall be Preferred Stock (the “Preferred”),
and
(B) 650,000,000 shares shall be Common Stock, $0.01 par
value
(the “Common”).
Of
the Preferred, 45,000,000 shares shall be designated Series A Convertible
Preferred Stock, $0.01 par
value
per share (the “Series
A Preferred”),
25,000,000 shares
shall be designated Series B Convertible Preferred Stock, $0.01 par
value
per share (the “Series
B Preferred”),
70,000,000 shares shall be designated Series C-1 Convertible Preferred Stock,
$0.01 par
value
per share (the “Series
C-1 Preferred”),
50,000,000 shares shall be designated Series C-2 Convertible Preferred Stock,
$0.01 par
value
per share (the “Series
C-2 Preferred”)
and
100,000,000 shares shall be designated Series C-3 Convertible Preferred Stock,
$0.01 par
value
per share (the “Series
C-3 Preferred”).
The
Series C-1 Preferred, Series C-2 Preferred and Series C-3 Preferred are
sometimes referred to collectively as the “Series
C Preferred”.
Upon
this Certificate of Amendment to the Restated Certificate of Incorporation
of
the Corporation becoming effective pursuant to the Business Corporation Law
of
the State of New York (the “Effective Time”), every ten shares of the
Corporation’s common stock, par value $0.01 per share (the “Old Common Stock”),
issued and outstanding immediately prior to the Effective Time, will be
automatically reclassified as and converted into one share of common stock,
par
value $0.01 per share, of the Corporation (the “New Common Stock”).
Notwithstanding the immediately preceding sentence, no fractional shares of
New
Common Stock shall be issued to the holders of record of Old Common Stock in
connection with the foregoing reclassification of shares of Old Common Stock.
In
lieu thereof, the Company shall pay cash for such fractional interests as soon
as practicable after the Effective Time on the basis of the average of the
high
bid and low asked prices of one share of the Company’s common stock, as reported
by the OTC Bulletin Board, for the ten business days immediately preceding
the
effective date of the reverse stock split for which transactions in the common
stock are reported.
Each
stock certificate that, immediately prior to the Effective Time, represented
shares of Old Common Stock shall, from and after the Effective Time,
automatically and without the necessity of presenting the same for exchange,
represent that number of whole shares of New Common Stock into which the shares
of Old Common Stock represented by such certificate shall have been reclassified
(as well as the right to receive cash in lieu of any factional shares of New
Common Stock as set forth above), provided, however, that each holder of record
of a certificate that represented shares of Old Common Stock shall receive,
upon
surrender of such certificate, a new certificate representing the number of
whole shares of New Common Stock into which the shares of Old Common Stock
represented by such certificate shall have been reclassified, as well as any
cash in lieu of fractional shares of New Common Stock to which such holder
may
be entitled pursuant to the immediately preceding paragraph.”
2
The
rights, preferences and privileges of and restrictions on the Series A
Preferred, Series B Preferred, Series C Preferred and Common are as
follows:”
4. The
foregoing amendments to the Restated Certificate of Incorporation were
authorized by the unanimous written consent of the Board of Directors followed
by an affirmative vote of the holders of a majority of the outstanding shares
of
common stock of the Corporation entitled to vote thereon.
IN
WITNESS WHEREOF, we have signed this certificate on the ____ day of
________,
and we
affirm the statements contained herein as true under penalties of
perjury.
|
President
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Secretary
|
3
CONTACT:
Acura
Pharmaceuticals, Inc.,
Investor
Relations, Peter A. Clemens, SVP & CFO 847-705-7709
FOR
IMMEDIATE RELEASE
ACURA
PHARMACEUTICALS, INC. ANNOUNCES REVERSE STOCK SPLIT
AND
EXPECTED PAYOFF OF $5 MILLION SECURED TERM NOTE
Palatine,
IL, October 31, 2007:
Acura
Pharmaceuticals, Inc. (OTC.BB-ACUR) (the "Company") today announced it will
effect a 1 for 10 reverse stock split of the Company’s common stock. The reverse
stock split is expected to take effect on or about December 5, 2007, subject
to
compliance with OTC Bulletin Board requirements. In addition, as more fully
described below, the Company expects to payoff its $5 million Secured Term
Note.
After paying off the Secured Term Note, the Company will have no term debt
remaining on its balance sheet.
Reverse
Stock Split
The
Company’s primary objective of the reverse stock split is to attempt to raise
the per share trading price of its common stock in an effort to obtain a listing
on the American Stock Exchange or the Nasdaq Capital Market. To obtain a
listing, the American Stock Exchange requires, among other things, that the
Company’s common stock have a minimum bid price of $3.00 per share, and the
Nasdaq Capital Market requires, among other things, that the Company’s common
stock maintain a minimum bid price of $4.00 per share. On October 26, 2007
the
closing price for the Company's common stock, as reported by the
Over-the-Counter Bulletin Board (the "OTCBB"), was $1.93. While the Company
intends that the reverse split will increase the bid price per share of its
common stock above the $3.00 or $4.00 per share minimum price, as the case
may
be, there can be no assurance that the reverse split will have that effect,
initially or in the future, or that it will enable the Company to achieve the
listing of its common stock on the American Stock Exchange or the Nasdaq Capital
Market. Moreover, there also can be no assurance that the price per share of
the
Company’s common stock immediately after the reverse split will increase
proportionately with the reverse split, or that any increase will be sustained
for any period of time.
If
at the
effective time of the reverse stock split the total number of shares that a
shareholder holds is not evenly divisible by ten, the shareholder will not
receive a fractional share, but instead will receive cash in an amount equal
to
the fraction of a share that the shareholder otherwise would have been entitled
to receive, multiplied by the average of the high bid and low asked prices
of
one share of the Company’s common stock, as reported by the OTC Bulletin Board,
for the ten business days immediately preceding the effective date of the
reverse stock split for which transactions in the common stock are
reported.
Process
for Reverse Stock Split
Following
the effective date of the reverse split, the Company will provide to each
shareholder a transmittal letter from the exchange agent designated by the
Company (the “Exchange Agent”) for use in transmitting the existing stock
certificates representing shares of the Company’s common stock to the Exchange
Agent. The letter of transmittal will contain instructions for the surrender
of
such stock certificates to the Exchange Agent in exchange for new certificates
representing the appropriate number of whole shares of new common stock giving
effect to the reverse stock split. The Exchange Agent will also facilitate
the
payment to shareholders for fractional share interests following the effective
date of the reverse split.
Shareholders
should not destroy any stock certificates and should not submit any certificates
until requested to do so.
Payoff
of Secured Term Note
The
Company is a party to a Secured Loan Agreement dated March 29, 2000, as amended
(the “Loan Agreement”) with Essex Woodlands Health Venture V, L.P., Care Capital
Investments II, LP, Care Capital Offshore Investments II, LP, Galen Partners,
III, L.P., Galen Partners International III, L.P., Galen Employee Fund III,
L.P.
and certain individual lenders, having a principal balance of $5 million plus
accrued and unpaid interest. The Loan Agreement provides that the principal
amount and interest owing under the Loan Agreement must be pre-paid by the
Company, within ten days of receipt of proceeds in excess of $5 million received
by the Company from a third party pharmaceutical company pursuant to which
the
Company, grants such pharmaceutical company rights to any of the Company’s
products or product candidates or rights to the Company’s Aversion® Technology.
On October 30, 2007, the Company and King Pharmaceuticals Research and
Development, Inc. (“King”), a subsidiary of King Pharmaceuticals, Inc., entered
into such an agreement (the "King/Acura Agreement") which was announced earlier
today. Accordingly, simultaneous with the expected close of the King/Acura
Agreement, the Company will prepay the $5 million principal amount plus unpaid
interest as provided in the Loan Agreement.
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.