New
York
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2834
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11-0853640
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(State
or other jurisdiction of
incorporation
or organization)
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(Primary
Standard Industrial
Classification
Code Number)
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(I.R.S.
Employer
Identification
Number)
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Title
of Each Class of
Securities to Be Registered
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Amount
to Be
Registered(1)
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|
Proposed Maximum Offering
Price
Per Security(4)
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Proposed Maximum Aggregate
Offering
Price
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Amount
of
Registration Fee(5)
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Common
Stock, $0.01 par value.
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(2)
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$1.50
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$482,875,676
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$14,824.28
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Common
Stock, $0.01 par value,
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(3)
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$1.50
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$30,773,426
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$
944.74
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342,432,734
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$1.50
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$513,649,101
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$15,769.03
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(1)
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In
accordance with Rule 416(a), the Registrant is also registering hereunder
an indeterminate number of shares that may be issued and resold resulting
from stock splits, stock dividends or similar transactions.
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(2)
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Represents
shares of the Registrant’s common stock being registered for resale that
have been issued to the selling stockholders named in this registration
statement.
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(3)
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Represents
shares of the Registrant’s common stock issuable upon exercise of warrants
being registered for resale that have been issued to the selling
stockholders named in this Registration Statement.
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(4)
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Estimated
pursuant to Rule 457 under the Securities Act of 1933, solely for
the
purposes of calculating the registration fee, upon the basis of the
average bid and asked prices of our common stock as reported on the
Over-the-Counter Bulletin Board on September 24, 2007, a date which
is
within five business days prior to the filing of this Registration
Statement.
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(5)
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Previously
Paid.
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Page
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Information
Contained in This Prospectus
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2 | |
Special
Note Regarding Forward Looking Statements
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2 | |
Risk
Factors
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3 |
About
Acura Pharmaceuticals, Inc.
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12 |
Use
of Proceeds
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15 |
Selling
Stockholders
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15 |
Plan
of Distribution
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19 |
Legal
Matters
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20 |
Experts
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20 |
Incorporation
Of Certain Information By Reference
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21 |
Where
You Can Find More Information
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22 |
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Number
of shares
beneficially
owned prior to the
offering
(1)
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Number
of
shares being
offered
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Number
of shares beneficially owned after the Offering
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Percentage
Ownership After Offering
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||
GCE
Holdings LLC
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(2)
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345,649,572
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(12)
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303,982,907
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(12)
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41,666,665
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(34) |
9.6%
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Galen
Partners III, L.P.
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(3)
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6,156,335
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(13)(14)
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6,006,335
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(13)
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150,000
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*
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|||
Galen
Partners International, III, L.P.
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(3)
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508,597
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(15)
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508,597
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(15)
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0
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*
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|||
Galen
Employee Fund III, L.P.
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(3)
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26,047
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(16)
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26,047
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(16)
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0
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*
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|||
Essex
Woodlands Health Ventures
Fund
V, L.P.
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(4)
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1,806,781
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(17)(18)
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1,706,781
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(17)
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100,000
|
*
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|||
Care
Capital Investments II, LP
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(5)
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1,279,147
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(19)(20)
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1,185,567
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(19)
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93,580
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*
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|||
Care
Capital Offshore Investments II, LP
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(5)
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87,755
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(21)(22)
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81,335
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(22)
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6,420
|
*
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|||
Vivo
Ventures Fund VI, L.P.
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(6)
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24,818,180
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(23)
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24,818,180
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(23)
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0
|
*
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|||
Vivo
Ventures VI Affiliates Fund, L.P
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(6)
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181,820
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(24)
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181,820
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(24)
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0
|
*
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|||
CGM
IRACustodian f/b/o Michael M. Weisbrot
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(7)
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1,114,925
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(25)
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925,925
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(25)
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189,000
|
*
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|
Michael
Weisbrot and Susan Weisbrot JT
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(8)
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5,392,649
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(26)
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694,440
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(27)
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4,698,209
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1.1%
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|||
Dennis
Adams
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(9)
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5,349,641
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(28)
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694,440
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(28)
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4,700,201
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1.1%
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George
Boudreau
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(10)
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910,211
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(29)
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694,440
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(29)
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215,771
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*
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Greg
Wood
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894,639
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(30)
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231,480
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(30)
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663,159
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*
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||
Peter
Stieglitz
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(11)
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265,565
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(31)
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231,480
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(31)
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34,085
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*
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Ian
Meierdiercks
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231,480
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(32)
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231,480
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(32)
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0
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*
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Blair
Johnson
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231,480
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(33)
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231,480
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(33)
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0
|
*
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(1)
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Beneficial
ownership is determined in accordance with the rules of the Securities
and
Exchange Commission. Amounts in this column assume full exercise
by the
respective selling stockholders of all warrants whose underlying
shares
are covered by this Prospectus.
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(2)
|
GCE
Holdings LLC, a Delaware limited liability company, was the assignee
of
all of our preferred stock (prior to its conversion into common
stock) and
bridge loans entered into in 2005, 2006 and 2007 (prior to their
conversion into common stock and warrants) formerly held by each
of Galen
Partners III, L.P., Galen Partners International III, L.P., Galen
Employee
Fund III, L.P. (collectively, “Galen”), Care Capital Investments II, LP,
Care Capital Offshore Investments II, LP (collectively, “Care Capital”)
and Essex Woodlands Health Ventures Fund V, L.P. (“Essex”). Galen, Care
Capital and Essex own approximately 39.8%, 30.6% and 29.6%, respectively,
of the membership interests in GCE Holdings LLC. The following
natural
persons exercise voting, investment and dispositive rights over
our
securities held of record by GCE Holdings LLC: (i) Galen Partners
III,
L.P., Galen Partners International III, L.P. and Galen Employee
Fund III,
L.P.: Bruce F. Wesson, L. John Wilkenson, David W. Jahns, and Zubeen
Shroff; (ii) Care Capital Investments II, LP and Care Capital Offshore
Investments II, LP: Jan Leschly, Richard Markham, Argeris Karabelas
and
David Ramsay; and (iii) Essex Woodlands Health Ventures Fund V,
L.P.:
Immanuel Thangaraj, James L. Currie and Martin P. Sutter. Pursuant
to a
voting agreement, GCE Holdings LLC has the right to designate four
members
to our Board of Directors. It has currently exercised such right
with
respect to three directors: Immanuel Tharangaj, Richard Markham
and Bruce
Wesson. Amounts listed for GCE Holdings LLC exclude amounts held
by Galen,
Care Capital or Essex. GCE Holdings LLC acquired units in the PIPE
Transaction for $9 million in cash and conversion of $10.294 million
in
bridge loans acquired from Galen, Care Capital and Essex. The shares
and
shares underlying the units acquired by GCE Holdings LLC in the
PIPE
Transaction for cash are not being offered
hereby.
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(3)
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Galen
Partners III, L.P., Galen Partners International III, L.P., Galen
Employee
Fund III, L.P. (collectively, “Galen”) collectively own approximately
39.8% of GCE Holdings LLC. Prior to November 2005, Galen had the
right to
designate one member to our Board of Directors. Galen had been
one of our
bridge lenders in the past three years and also holds a 35.1% interest
in
a secured $5 million note issued by us, which must be repaid upon
the
closing of the King Agreement. Galen assigned to GCE Holdings LLC
its
interest in $3,431,333 in principal of our bridge loans prior to
the
closing of the PIPE Transaction and GCE Holdings LLC converted
such bridge
loans into units in the PIPE Transaction. The following natural
persons
exercise voting, investment and dispositive rights over our securities
held by Galen: (i) Bruce F. Wesson, L. John Wilkenson, David W.
Jahns, and
Zubeen Shroff. Bruce Wesson has been one of our directors since
March
1998, including as designee of Galen and currently as designee
of GCE
Holdings LLC. The amounts listed for each Galen entity exclude
amounts
held by any other Galen entity or GCE Holdings
LLC.
|
(4)
|
Essex
Woodlands Health Ventures Fund V, L.P. (“Essex”) owns approximately 29.6%
of GCE Holdings LLC. Prior to November 2005, Essex had the right
to
designate one member to our Board of Directors. Essex had been
one of our
bridge lenders in the past three years and also holds a 35.1% an
interest
in a secured $5 million note issued by us, which must be repaid
upon the
closing of the King Agreement. Essex assigned to GCE Holdings LLC
its
interest in $3,431,333 in principal of our bridge loans prior to
the
closing of the PIPE Transaction and GCE Holdings LLC converted
those
bridge loans into units in the PIPE Transaction. The following
natural
persons exercise voting, investment and dispositive rights over
our
securities held by Essex: Immanuel Thangaraj, James L. Currie and
Martin
P. Sutter. Mr. Tharangaj has been one of our directors since December
2002, as designee of Essex and now as designee of GCE Holdings
LLC. The
amounts listed for Essex exclude amounts held by GCE Holdings LLC.
|
(5)
|
Care
Capital Investments II, LP and Care Capital Offshore Investments
II, LP
(collectively, “Care Capital”) collectively own approximately 30.6% of GCE
Holdings LLC. Prior to November 2005, Care Capital had the right
to
designate one member to our Board of Directors. Care Capital had
been one
of our bridge lenders in the past three years and also holds a
27.0%
interest in a $5 Million note issued by us, which must be repaid
upon the
closing of the King Agreement. Care Capital assigned to GCE Holdings
LLC
its interest in $3,431,333 of our bridge loans prior
to the closing of the PIPE Transaction and GCE Holdings LLC converted
those loans into units
in
the PIPE Transaction. The following natural persons exercise voting,
investment and dispositive rights over our securities held by Care
Capital: Jan Leschly, Richard Markham, Argeris Karabelas and David
Ramsay.
Argeris Karabelas was one of our directors from December 2002 to
May 2006,
as designee of Care Capital and Richard Markham has been a director
since
May 2006, as designee of Care Capital and now as designee of GCE
Holdings
LLC. The amounts listed for each Care Capital entity exclude amounts
held
by any other Care Capital entity or GCE Holdings
LLC.
|
(6)
|
Vivo
Ventures Fund VI, L.P. and Vivo Ventures VI Affiliates Fund, L.P.
are
affiliated entities (the “Vivo Entities”). Vivo Ventures Fund VI, L.P. has
the right to designate an observer to attend meetings of our Board
of
Directors, until such time as it disposes of 50% of the securities
it
acquired in the PIPE Transaction and Vivo Ventures Fund VI, L.P.
has
designated Albert Cha as such observer. The amounts listed for each
of the
Vivo Entities excludes the amounts held by any other Vivo Entity.
All
shares held by each Vivo Entity were acquired in the PIPE Transaction.
Vivo Ventures Fund VI, L.P. invested $5 million and Vivo Ventures
VI
Affiliates Fund, L.P. invested $0.4 million in the PIPE
Transaction.
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(7)
|
CGM
IRA Custodian f/b/o Michael M. Weisbrot invested $200,000 in cash
in the
PIPE Transaction. Amounts exclude shares and shares underlying warrants
held by Michael and Susan Weisbrot.
|
(8)
|
Michael
and Susan Weisbrot own a 1.2% interest in a secured $5 million
note issued
by us, which must be repaid upon the closing of the King
Agreement.
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(9)
|
Amounts
include shares and shares underlying warrants acquired by Mr. Adams
for
$100,000 in cash and upon conversion of $50,000 in bridge loans
extended
in November 2005 into units in the PIPE Transaction. Mr. Adams
owns a 0.9%
interest in a secured $5 million note issued by us, which must
be repaid
upon the closing of the King Agreement.
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(10)
|
Amounts
include shares and shares underlying warrants acquired by Mr. Boudreau
for
$100,000 in cash and upon conversion of $50,000 in bridge loans
extended
in November 2005 into units in the PIPE Transaction. Mr. Boudreau
owns a
0.4% interest in a secured $5 million note issued by us, which
must be
repaid upon the closing of the King Agreement.
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(11)
|
Amounts
include shares and shares underlying warrants acquired by Mr. Stieglitz
for $50,000 in cash in the PIPE Transaction. Mr. Stieglitz owns
a 0.15%
interest in a secured $5 million note issued by us, which must
be repaid
upon the closing of the King Agreement.
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(12)
|
Includes
9,531,481 shares underlying warrants acquired in the PIPE Transaction,
exercisable at $0.34 per
share.
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(13)
|
Includes
424,663, 137,030 and 3,732,365 shares underlying warrants exercisable
at
$0.99, $0.1285, and $0.34,
respectively.
|
(14)
|
Includes
100,000 shares underlying options exercisable at $0.36 per share
and
50,000 shares underlying options with exercise prices ranging from
$1.14
to $2.375 per share.
|
(15)
|
Includes
37,284, 12,409 and 337,797 shares underlying warrants exercisable
at
$0.99, $0.1285 and $0.34,
respectively.
|
(16)
|
Includes
4,716, 561 and 15,279 shares underlying warrants exercisable at $0.99,
$0.1285 and $0.34, respectively.
|
(17)
|
Includes
345,000 shares underlying warrants exercisable at $.01285 per
share.
|
(18)
|
Includes
100,000 shares underlying options exercisable at $0.36 per share.
|
(19)
|
Includes
140,370 shares underlying warrants exercisable at $0.1285 per share.
|
(20)
|
Includes
93,580 shares underlying options exercisable at $0.36 per share.
|
(21)
|
Includes
9,630 shares underlying warrants exercisable at $0.1285 per share.
|
(22)
|
Includes
6,420 shares underlying options exercisable at $0.36 per share.
|
(23)
|
Includes
4,963,636 shares underlying warrants acquired in the PIPE Transaction,
exercisable at $0.34 per share.
|
(24)
|
Includes
36,364 shares underlying warrants acquired in the PIPE Transaction,
exercisable at $0.34 per share.
|
(25)
|
Includes
185,185 shares underlying warrants acquired in the PIPE Transaction,
exercisable at $0.34 per share.
|
(26)
|
Amounts
include shares and shares underlying warrants acquired by Susan
and
Michael Weisbrot upon conversion of $150,000 in bridge loans extended
in
November 2005 into units in the PIPE Transaction. Amounts
include shares and shares underlying warrants of CGM IRA Custodian
f/b/o
Michael M. Weisbrot, over which Michael Weisbrot has voting and
investment
control. Included
in the foregoing are 324,073 shares underlying warrants acquired
in the
PIPE Transaction by Susan and Michael Weisbrot and by CGM IRA Custodian
f/b/o Michael M. Weisbrot, exercisable at $0.34 per share. Also
includes the following over which Michael Weisbrot has or shares
voting
and investment control: 6,438 shares in another retirement account
owned
by Michael Weisbrot and 10,000 shares held by Michael Weisbrot
as
custodian for the son of Michael and Susan Weisbrot. Also includes
the
following over which Susan Weisbrot has or shares voting and investment
control: 6,323 shares in a retirement account owned by Susan
Weisbrot
|
(27)
|
Includes
138,888 shares underlying warrants acquired in the PIPE Transaction
by
Susan and Michael Weisbrot exercisable at $0.34 per share. Excludes
shares
and shares underlying warrants being offered by CGM IRA Custodian
f/b/o
Michael M. Weisbrot.
|
(28)
|
Includes
138,888 shares underlying warrants acquired in the PIPE Transaction,
exercisable at $0.34 per share.
|
(29)
|
Includes
138,888 shares underlying warrants acquired in the PIPE Transaction,
exercisable at $0.34 per share.
|
(30)
|
Includes
46,296 shares underlying warrants acquired in the PIPE Transaction,
exercisable at $0.34 per share. Mr. Wood invested $50,000 in cash
in the
PIPE Transaction.
|
(31)
|
Includes
46,296 shares underlying warrants acquired in the PIPE Transaction,
exercisable at $0.34 per share.
|
(32)
|
Includes
46,296 shares underlying warrants acquired in the PIPE Transaction,
exercisable at $0.34 per share. Mr.
Meierdiercks invested
$50,000 in cash in the PIPE
Transaction.
|
(33)
|
Includes
46,296 shares underlying warrants acquired in the PIPE Transaction,
exercisable at $0.34 per share. Mr. Johnson invested $50,000 in cash
in
the PIPE Transaction.
|
(34)
|
Includes
8,333,333 shares underlying warrants acquired in the PIPE Transaction,
exercisable at $0.34 per share.
|
●
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
●
|
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
●
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
|
●
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
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●
|
privately
negotiated transactions;
|
●
|
short
sales;
|
●
|
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or
otherwise;
|
●
|
broker-dealers
may agree with the selling stockholders to sell a specified number
of such
shares at a stipulated price per
share;
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●
|
a
combination of any such methods of sale;
and
|
●
|
any
other method permitted pursuant to applicable
law.
|
•
|
|
our
Annual Report on Form 10-K for our fiscal year ended December 31,
2006;
|
•
|
|
our
Current Report on Form 8-K filed with the SEC on February 20, 2007;
|
•
|
|
our
Current Reports on Form 8-K each filed with the SEC on March 15,
2007;
|
•
|
|
our
Current Report on Form 8-K filed with the SEC on April 2, 2007;
|
•
|
|
our
Amendment to Current Report on Form 8-K/A filed with the SEC on April
3,
2007, amending our Current Report on Form 8-K filed on April 2, 2007
|
•
|
|
our
Current Report on Form 8-K filed with the SEC on May 4, 2007;
|
•
|
|
our
Quarterly Report on Form 10-Q for our fiscal quarter ended March
31, 2007
filed with the SEC on May 4, 2007;
|
•
|
|
our
Current Report on Form 8-K filed with the SEC on May 18, 2007;
|
•
|
|
our
Current Report on Form 8-K filed with the SEC on June 19, 2007;
|
•
|
|
our
Current Report on Form 8-K filed with the SEC on July 5, 2007;
|
•
|
|
our
Current Report on Form 8-K filed with the SEC on July 10, 2007;
|
•
|
|
our
Current Report on Form 8-K filed with the SEC on August 9, 2007;
|
•
|
|
our
Quarterly Report on Form 10-Q for our fiscal quarter ended June 30,
2007
filed with the SEC on August 9, 2007;
|
•
|
|
our
Current Report on Form 8-K filed with the SEC on August 21, 2007;
|
•
|
|
our
Current Report on Form 8-K filed with the SEC on September 24, 2007;
|
•
|
|
our
Quarterly Report on Form 10-Q for our fiscal quarter ended September
30,
2007 filed with the SEC on November 2,
2007;
|
•
|
|
our
Current Reports (two) on Form 8-K filed with the SEC on November
2, 2007;
and
|
•
|
|
the
description of our common stock contained in our registration statement
on
Form 8-A filed with the SEC on November 14, 1988.
|
Securities
and Exchange Commission registration fee
|
$
|
17,688
|
||
Legal
fees and expenses
|
$
|
60,000
|
||
Accounting
fees and expenses
|
$
|
20,000
|
||
Transfer
Agent and Registrar fees
|
$
|
2,000
|
||
Miscellaneous
expenses
|
$
|
15,000
|
||
Total
|
$
|
114,688
|
3.1
|
Amended
and Restated Certificate of Incorporation (incorporated by reference
to
Exhibit 10.3 of our Current Report on Form 8-K filed on February
10,
2004).
|
3.2
|
Restated
By-Laws (incorporated by reference to Exhibit 3.3 to our Annual Report
on
Form 10-K for the year ended December 31, 1998).
|
*5.1
|
Legal
Opinion of Seiden Wayne LLC regarding the legality of the securities
being
registered
|
10.1
|
Form
of Securities Purchase Agreement among the Company and certain investors
in connection with the PIPE Transaction completed on August 20, 2007
(incorporated by reference to Exhibit 10.1 to our Current Report
on Form
8-K filed on August 21, 2007).
|
10.2
|
Form
of Warrant issued to investors in the PIPE Transaction on August
20, 2007
(incorporated by reference to Exhibit 4.1 to our Current Report on
Form
8-K filed on August 21, 2007).
|
*10.3
|
Form
of Warrants dated August 15, 2001 issued to Galen Partners III, L.P.,
Galen Partners International, III, L.P. and Galen Employee Fund III,
L.P.
(currently exercisable for an aggregate of 466,663 shares at an exercise
price of $0.99 per share).
|
*10.4
|
Form
of Warrants dated January 9, 2002, February 1, 2002, March 1, 2002,
and
April 5, 2002 issued to Galen Partners III, L.P., Galen Partners
International, III, L.P. and Galen Employee Fund III, L.P. (currently
exercisable for an aggregate of 433,126 shares at an exercise price
of
$0.34 per share).
|
*10.5
|
Form
of Warrants dated May 8, 2002, June 3, 2002, July 1, 2002, July 23,
2002,
August 5, 2002, September 3, 2002, October 1, 2002, November 4, 2002,
November 12, 2002, November 21, 2002 and December 5, 2002 issued
to Galen
Partners III, L.P., Galen Partners International, III, L.P. and Galen
Employee Fund III, L.P. (current exercisable for an aggregate of
3,652,315
shares at an exercise price of $0.34 per share).
|
*10.6
|
Form
of Warrant dated May 5, 2003 issued to Galen Partners III, L.P.,
Galen
Partners International, III, L.P.,Galen Employee Fund III, L.P.,
Essex
Woodlands Health Ventures Fund V, L.P. and Care Capital Investments
II, LP
(currently exercisable for an aggregate of 645,000 shares at an exercise
price of $0.1285 per share).
|
10.7
|
Amended
and Restated Voting Agreement dated as of February 6, 2004 by and
among
the Registrant, Galen Partners III, LP and the other signatories
thereto
(incorporated by reference to Exhibit 10.5 to our Current Report
on Form
8-K filed on February 10, 2004).
|
10.8
|
Joinder
and Amendment to Amended and Restated Voting Agreement dated November
9,
2005 between the Registrant, Galen Partners III, LP, GCE Holdings
LLC and
the other signatories thereto (incorporated by reference to Exhibit
10.1
to our Current Report on Form 8-K filed on November 10,
2006).
|
10.9
|
Amended
and Restated Registration Rights Agreement dated as of February 6,
2004 by
and among the Registrant, Watson Pharmaceuticals, Galen Partners
III, L.P.
and the other signatories thereto (incorporated by reference to Exhibit
10.6 to our Current Report on Form 8- filed on February 10,
2004).
|
23.1
|
Consent
of BDO Seidman, LLP, independent registered public accounting
firm.
|
*23.2
|
Consent
of Seiden Wayne LLC (included with opinion filed as Exhibit
5.1).
|
*24
|
Power
of Attorney (included on signature page of this registration
statement).
|
(a)
|
The
undersigned registrant hereby undertakes:
|
|
(1)
|
To
file, during any period in which offers or sales are being made,
a
post-effective amendment to this registration statement:
|
|
(i)
|
To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
|
|
(ii)
|
To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually, or in the aggregate, represent
a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease
in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation
from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the
effective registration statement; and
|
|
(iii)
|
To
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration statement; provided,
however, that the undertakings set forth in clauses (i) and
(ii) above shall not apply if the information required to be included
in a post-effective amendment by these clauses is contained in periodic
reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference
in this registration statement.
|
|
(2)
|
That,
for the purpose of determining any liability under the Securities
Act,
each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein,
and the
offering of such securities at that time shall be deemed to be the
initial
bona fide offering thereof.
|
|
(3)
|
To
remove from registration by means of a post-effective amendment any
of the
securities being registered which remain unsold at the termination
of the
offering.
|
(b)
|
The
undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference in the registration statement shall
be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be
deemed to be the initial bona fide offering thereof.
|
(c)
|
Insofar
as indemnification for liabilities arising under the Securities Act
may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant
has
been advised that in the opinion of the SEC such indemnification
is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant
of
expenses incurred or paid by a director, officer or controlling person
of
the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in
connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled
by
controlling precedent, submit to a court of appropriate jurisdiction
the
question whether such indemnification by it is against public policy
as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
|
ACURA
PHARMACEUTICALS, INC.
|
||
By:
|
|
/s/Andrew D. Reddick
|
|
|
Andrew
D. Reddick
|
|
|
President
and Chief Executive
Officer
|
Signature
|
|
Title
|
Date
|
|
/S/ Andrew
D. Reddick
Andrew D. Reddick
|
|
President
and Chief Executive Officer, Director
(Principal
Executive Officer)
|
November
13, 2007
|
|
/S/ Peter
A. Clemens
Peter A. Clemens
|
|
Senior
Vice President and Chief Financial Officer
(Principal
Financial and Accounting Officer)
|
November
13, 2007
|
|
/S/ *
Bruce F. Wesson*
|
|
Director
|
November
13, 2007
|
|
/S/ *
William Skelly*
|
|
Director
|
November
13, 2007
|
|
/S/ *
William Sumner*
|
|
Director
|
November
13, 2007
|
|
/S/ *
Richard J. Markham*
|
|
Director
|
November
13, 2007
|
|
/S/ *
Immanuel Thangaraj*
|
|
Director
|
November
13, 2007
|
Index
to Exhibits
|
3.1
|
Amended
and Restated Certificate of Incorporation (incorporated by reference
to
Exhibit 10.3 of our Current Report on Form 8-K filed on February
10,
2004).
|
3.2
|
Restated
By-Laws (incorporated by reference to Exhibit 3.3 to our Annual Report
on
Form 10-K for the year ended December 31, 1998).
|
*5.1
|
Legal
Opinion of Seiden Wayne LLC regarding the legality of the securities
being
registered
|
10.1
|
Form
of Securities Purchase Agreement among the Company and certain investors
in connection with the PIPE Transaction completed on August 20, 2007
(incorporated by reference to Exhibit 10.1 to our Current Report
on Form
8-K filed on August 21, 2007).
|
10.2
|
Form
of Warrant issued to investors in the PIPE Transaction on August
20, 2007
(incorporated by reference to Exhibit 4.1 to our Current Report on
Form
8-K filed on August 21, 2007).
|
*10.3
|
Form
of Warrants dated August 15, 2001 issued to Galen Partners III, L.P.,
Galen Partners International, III, L.P. and Galen Employee Fund III,
L.P.
(currently exercisable for an aggregate of 466,663 shares at an exercise
price of $0.99 per share).
|
*10.4
|
Form
of Warrants dated January 9, 2002, February 1, 2002, March 1, 2002,
and
April 5, 2002 issued to Galen Partners III, L.P., Galen Partners
International, III, L.P. and Galen Employee Fund III, L.P. (currently
exercisable for an aggregate of 433,126 shares at an exercise price
of
$0.34 per share).
|
*10.5
|
Form
of Warrants dated May 8, 2002, June 3, 2002, July 1, 2002, July 23,
2002,
August 5, 2002, September 3, 2002, October 1, 2002, November 4, 2002,
November 12, 2002, November 21, 2002 and December 5, 2002 issued
to Galen
Partners III, L.P., Galen Partners International, III, L.P. and Galen
Employee Fund III, L.P. (current exercisable for an aggregate of
3,652,315
shares at an exercise price of $0.34 per share).
|
*10.6
|
Form
of Warrants dated May 5, 2003 issued to Galen Partners III, L.P.,
Galen
Partners International, III, L.P.,Galen Employee Fund III, L.P.,
Essex
Woodlands Health Ventures Fund V, L.P. and Care Capital Investments
II, LP
(currently exercisable for an aggregate of 645,000 shares at an exercise
price of $0.1285 per share).
|
10.7
|
Amended
and Restated Voting Agreement dated as of February 6, 2004 by and
among
the Registrant, Galen Partners III, LP and the other signatories
thereto
(incorporated by reference to Exhibit 10.5 to our Current Report
on Form
8- K filed on February 10, 2004).
|
10.8
|
Joinder
and Amendment to Amended and Restated Voting Agreement dated November
9,
2005 between the Registrant, Galen Partners III, LP, GCE Holdings
LLC and
the other signatories thereto (incorporated by reference to Exhibit
10.1
to our Current Report on Form 8-K filed on November 10,
2006).
|
10.9
|
Amended
and Restated Registration Rights Agreement dated as of February 6,
2004 by
and among the Registrant, Watson Pharmaceuticals, Galen Partners
III, L.P.
and the other signatories thereto (incorporated by reference to Exhibit
10.6 to our Current Report on Form 8-K filed on February 10,
2004).
|
23.1
|
Consent
of BDO Seidman, LLP, independent registered public accounting
firm.
|
*23.2
|
Consent
of Seiden Wayne LLC (included with opinion filed as Exhibit
5.1).
|
*24
|
Power
of Attorney (included on signature page of this registration
statement).
|
Re: | Acura Pharmaceuticals, Inc. | |
Registration Statement on Form S-3 | ||
Filed on October 1, 2007 | ||
File Number 333-146416 |
Mr. Jeffrey P. Riedler | |
Securities and Exchange Commission | |
November 14, 2007 | |
Page 2 | |
Sincerely, | ||
/s/ John Reilly | ||
John Reilly |
JPR/rc | |
cc: | Sonia Barros |
Andrew Reddick, President and CEO | |
Peter Clemens, Senior Vice President and CFO |