As filed
with the Securities and Exchange Commission on March 28, 2005.
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
ACURA
PHARMACEUTICALS, INC.
(Exact
Name of Registrant as Specified in Its Charter)
New
York |
11-0853640 |
(State
or Other Jurisdiction of Incorporation or Organization) |
(IRS
Employer Identification No.) |
616 N.
North Court, Suite 120, Palatine, Illinois 60067
(Address
of Principal Executive Offices)
Acura
Pharmaceuticals, Inc. 1998 Stock Option Plan
(Full
Title of the Plan)
Peter A.
Clemens
Senior
Vice President and Chief Financial Officer
Acura
Pharmaceuticals, Inc.
616 N.
North Court, Suite 120, Palatine, Illinois 60067
(Name and
Address Of Agent For Service of Process)
________________________________
With a
Copy to:
John P.
Reilly, Esq.
St. John
& Wayne, L.L.C.
Two Penn
Plaza East, Newark, New Jersey 07105
(973)
491-3600
________________________________
CALCULATION
OF REGISTRATION FEE
| |
|
|
|
|
|
Title
of
Securities
To
Be
Registered |
Amount
To
Be
Registered
(1) |
Proposed
Maximum
Offering
Price
Per
Share |
Proposed
Maximum
Aggregate
Offering
Price |
Amount
of
Registration
Fee |
|
Common
Stock $.01 par value per share, issuable upon exercise of Plan
Options |
8,373,820 |
$0.13(2) |
$1,088,596.60 |
$128.13 |
|
Common
Stock, $.01 par value per share, reserved for future
issuance |
3,526,180 |
$0.55(3) |
$1,939,399.00 |
$228.27 |
|
TOTAL |
11,900,000 |
|
$3,027,995.60 |
$356.40 |
(1) The
aggregate amount of securities registered hereunder is 11,900,000 shares of
Common Stock. Pursuant to Rule 416 promulgated under the Securities Act of 1933,
as amended, this Registration Statement covers such additional shares of Common
Stock to be offered or issued to prevent dilution as a result of future stock
splits, stock dividends or similar transactions.
(2)
Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the exercise price of $0.13 per share
of Common Stock for shares subject to options granted under the
Plan.
(3) The
fee with respect to these shares has been calculated pursuant to paragraphs (h)
and (c) of Rule 457 upon the basis of $0.55, the average of the bid and asked
price per share of the Registrant's Common Stock on March 23, 2005, a date
within five (5) business days prior to the date of filing of this Registration
Statement, as reported by the National Association of Securities Dealers'
Over-the-Counter Bulletin Board.
EXPLANATORY
STATEMENT
We are
filing this Registration Statement to register an additional 11,900,000 shares
of our Common Stock for issuance pursuant to the Acura Pharmaceuticals, Inc.
1998 Stock Option Plan, as amended (the "Plan"). The increase in the number of
shares authorized for issuance under the Plan, as well as certain other
amendments to the Plan that are described in our definitive proxy statement for
our 2004 annual meeting of stockholders, were approved by our stockholders at
our 2004 annual meeting, held on August 12, 2004. We previously filed a
registration statement on Form S-8 (Registration No. 333- 63288) on June 19,
2001 covering 8,100,000 shares authorized for issuance under the Plan. In
accordance with General Instruction E to Form S-8, the contents of such earlier
registration statement are incorporated herein by reference except to the extent
supplemented, amended or superseded by the information set forth herein. Only
those Items on Form S-8 containing new information not contained in the earlier
registration statement are presented herein.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. DOCUMENTS INCORPORATED BY REFERENCE
We hereby
incorporate by reference into this Registration Statement the following
documents filed with the Securities and Exchange Commission (the "Commission"):
| |
1. |
Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2004,
filed with the Commission on February 28,
2005; |
| |
2. |
Our
Current Report on Form 8-K filed with the Commission on February 28, 2005;
and |
| |
3. |
The
description of our common stock contained in Form 8-A filed with the
Commission under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). |
In
addition, all documents and reports subsequently filed by us pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof
and prior to the filing of a Post-Effective Amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference and to be a
part hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated herein by reference
shall be deemed to be modified or superceded for purposes of this Registration
Statement to the extent that a statement contained herein or in any subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supercedes that statement. Any such statement so modified or
superceded shall not constitute a part of this Registration Statement, except as
so modified or superceded.
ITEM
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section
722 of the New York Business Corporation Law (the "BCL") provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorney's fees, in connection with actions or proceedings,
whether civil or criminal (other than an action by or in the right of the
corporation, referred to as a "derivative action"), if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. A
similar standard is applicable in the case of derivative actions, except that
indemnification only extends to amounts paid in settlement and reasonable
expenses (including attorney's fees) incurred in connection with the defense or
settlement of such actions, and the statute does not apply in respect of a
threatened action, or a pending action that is settled or otherwise disposed of,
and requires court approval before there can be any indemnification where the
person seeking indemnification has been found liable to the corporation. Section
721 of the BCL provides that Article 7 of the BCL is not exclusive of other
indemnification that may be granted by a corporation's certificate of
incorporation or by-laws. Article Ninth of the Registrant's Restated Certificate
of Incorporation and Article IV, Section 6 of the Registrant's Restated By-Laws
require the Registrant to indemnify its officers and directors to the fullest
extent permitted under the BCL.
Set forth
below is Article Ninth of the Registrant's Restated Certificate of
Incorporation:
NINTH:
The Corporation shall, to the fullest extent possible permitted by Sections 721
through 726 of the Business Corporation Law of New York, indemnify any and all
directors and officers whom it shall have the power to indemnify under said
sections from and against any and all of the expenses, liabilities or other
matters referred to in or covered by such sections of the Business Corporation
Law, and the indemnification provided for herein shall not be deemed exclusive
of any other rights to which the person so indemnified may be entitled under any
By-Law, agreement, vote of shareholders or disinterested directors or otherwise,
both as to action in his/her official capacity and as to action in another
capacity by holding such office, and shall continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs,
executors and administrators of such person.
Set forth
below is Article IV, Section 6 of the Registrant's Restated
By-Laws:
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.
In
addition to such other rights of indemnification as they may have as directors
or as members of the committee (the "Committee") administering the Registrant's
1998 Stock Option Plan (the "Plan"), under the terms of the Plan, the members of
the Committee shall be indemnified by the Registrant against the reasonable
expenses, including attorney's fees, actually and necessarily incurred in
connection with the defense of any action, suit or proceeding, or in connection
with any appeal therein, to which they or any of them may be a party by reason
of any action taken or failure to act under or in connection with the Plan or
any option granted thereunder, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by independent legal
counsel selected by the Registrant) or paid by them in satisfaction of a
judgment in any such action, suit or proceeding, except in relation to matters
as to which it shall be adjudged in such action, suit or proceeding that such
Board member is liable for negligence or misconduct in the performance of his
duties; provided that within 60 days after institution of any such action, suit
or proceeding a Board member shall in writing offer the Registrant the
opportunity, at its own expense, to handle and defend the same.
The
Registrant maintains a director and officer liability insurance policy that,
subject to the terms and conditions of the policy, provides coverage up to
$5,000,000 in the aggregate (subject to a $200,000 retention per loss) arising
from any wrongful act (as defined by the policy) committed by a director or
officer in his or her capacity as a director or officer of the Registrant. The
policy reimburses the Registrant for amounts spent in lawful indemnification of
a director or officer or amounts provided by the Registrant to indemnify its
directors and officers as required or permitted by law.
ITEM
8. EXHIBITS
|
Number
|
Description
|
|
5.1
|
Opinion
of St. John & Wayne , L.L.C. as to the legality of the Common Stock of
the Registrant covered by this Registration Statement
|
|
10.1
|
Acura
Pharmaceuticals, Inc. 1998 Stock Option Plan, as amended
|
|
23.1
|
Consent
of Grant Thornton LLP
|
|
23.2
|
Consent
of BDO Seidman, LLP
|
|
23.3
|
Consent
of St. John & Wayne, L.L.C. (included in Exhibit 5.1)
|
|
24.1
|
Power
of Attorney (included on the signature page hereto)
|
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Palatine, State of Illinois, on March 28, 2005.
ACURA
PHARMACEUTICALS, INC.
By: /s/
Andrew D. Reddick
Andrew D.
Reddick
President
and Chief Executive Officer
(Principal
Executive Officer)
POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Andrew D. Reddick and Jerry Karabelas, or either of
them, his true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for him and his name, place and stead, in any
and all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
Exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission granting unto said attorneys-in-fact and
agents, each acting alone, full power and authority to do and perform each and
every act and deed requisite and necessary to be done in connection with the
above premises, and fully for all intents and purposes as he might or could do
in person, hereby ratifying and conforming all that said attorney-in-fact and
agents, each acting alone, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons on behalf of the Registrant and
in the capacities and on the dates indicated.
|
Signatures
|
Title
|
Date
|
|
/s/
Andrew D. Reddick |
President,
Chief Executive Officer |
March
28, 2005 |
|
Andrew
D. Reddick
|
and
Director
|
|
|
/s/
Jerry Karabelas |
Chairman
of the Board of Directors |
March
28, 2005 |
|
Jerry
Karabelas
|
|
|
|
/s/
William G. Skelly |
Director |
March
28, 2005 |
|
William
G. Skelly
|
|
|
|
/s/
Bruce F. Wesson |
Director |
March
28, 2005 |
|
Bruce
F. Wesson
|
|
|
|
/s/
William Sumner |
Director |
March
28, 2005 |
|
William
Sumner
|
|
|
|
/s/
Immanuel Thangaraj |
Director |
March
28, 2005 |
|
Immanuel
Thangaraj
|
|
|
|
/s/
Peter A. Clemens |
Senior
Vice President and |
March
28, 2005 |
|
Peter
A. Clemens |
Chief
Financial Officer |
|
| |
(Principal
Financial and Accounting Officer)
|
|
INDEX
OF EXHIBITS
|
Number
|
Description
|
|
5.1
|
Opinion
of St. John & Wayne , L.L.C. as to the legality of the Common Stock of
the Registrant covered by this Registration Statement
|
|
10.1
|
Acura
Pharmaceuticals, Inc. 1998 Stock Option Plan, as amended
|
|
23.1
|
Consent
of Grant Thornton LLP
|
|
23.2
|
Consent
of BDO Seidman, LLP
|
|
23.3
|
Consent
of St. John & Wayne, L.L.C. (included in Exhibit 5.1)
|
|
24.1
|
Power
of Attorney (included on the signature page hereto)
|