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
February
27, 2009
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
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11-0853640
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(State
of Other Jurisdiction
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(Commission
File Number)
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(I.R.S.
Employer
|
of
Incorporation)
|
|
Identification
Number)
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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):
¨
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17CFR240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17CFR
240.13e-4(c))
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Item
5.03
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Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
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On February 27, 2009 our Board of
Directors amended our Amended and Restated Bylaws, effective February 27, 2009
(i) to increase from 40 to 60, the number of days our Board or Directors may fix
a record date in advance of any meeting of shareholders and in advance of
distributions and certain other lawful actions (amendments to Article I,
Sections 3 and 5); (ii) to explicitly permit execution of proxies by electronic
transmission (amendment to Article I, Section 7); and (iii) to explicitly permit
electronic transmission of notices of stockholder meetings (amendment to Article
I, Section 3). A copy of the amended bylaws is attached
hereto.
Item 9.01
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Financial
Statements and Exhibits
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Exhibit Number
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Description
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3.1
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Amendment
to Amended and Restated
By-Laws
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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.
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|
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By:
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/s/ Peter A.
Clemens
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Peter
A. Clemens
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|
Senior
Vice President & Chief Financial
Officer
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Date: March
2, 2009
Exhibit
Index
Exhibit Number
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|
Description
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3.1
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Amendment
to Amended and Restated
By-Laws
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As
Amended: February 27, 2009
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 or provided, personally, by
mail or electronically, 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 sixty days before the
meeting, provided that if mailed by third class mail it shall be provided not
less than twenty four days nor more than sixty days before the meeting, and if
transmitted electronically such notice is provided when directed to the
stockholder’s electronic mail address as supplied by the stockholder to the
secretary of the Corporation or as otherwise directed pursuant to the
stockholder’s authorization or instructions. 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.
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 sixty 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 (including by way
of electronic transmission) 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.