SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
ACURA PHARMACEUTICALS, INC.
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
4063691 08 7
(CUSIP Number)
MARTIN P. SUTTER
ESSEX WOODLANDS HEALTH VENTURES FUND V, L.P.
10001 WOODLOCH FOREST DRIVE, SUITE 175
THE WOODLANDS, TEXAS 77380
(281) 364-1555
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
AUGUST 13, 2004
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box. [ ]
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
--------------------------------------------------------------------------------
CUSIP NO. 4063691 08 7 Page 2 of 14 Pages
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Essex Woodlands Health Ventures Fund V, L.P.
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e)
[ ]
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF
56,810,375
SHARES -----------------------------------------------------------------
8. SHARED VOTING POWER
BENEFICIALLY
-0-
OWNED BY EACH -----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
REPORTING
56,810,375
PERSON -----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
WITH
-0-
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
56,810,375
--------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
72.1%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
--------------------------------------------------------------------------------
SCHEDULE 13D
--------------------------------------------------------------------------------
CUSIP NO. 4063691 08 7 Page 3 of 14 Pages
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Essex Woodlands Health Ventures V, L.L.C.
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e)
[ ]
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF
56,810,375
SHARES -----------------------------------------------------------------
8. SHARED VOTING POWER
BENEFICIALLY
-0-
OWNED BY EACH -----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
REPORTING
56,810,375
PERSON -----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
WITH
-0-
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
56,810,375
--------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
72.1%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
--------------------------------------------------------------------------------
SCHEDULE 13D
--------------------------------------------------------------------------------
CUSIP NO. 4063691 08 7 Page 4 of 14 Pages
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
James L. Currie
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e)
[ ]
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
--------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF
-0-
SHARES -----------------------------------------------------------------
8. SHARED VOTING POWER
BENEFICIALLY
56,810,375
OWNED BY EACH -----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
REPORTING
-0-
PERSON -----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
WITH
56,810,375
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
56,810,375
--------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
72.1%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
SCHEDULE 13D
--------------------------------------------------------------------------------
CUSIP NO. 4063691 08 7 Page 5 of 14 Pages
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Martin P. Sutter
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e)
[ ]
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
--------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF
-0-
SHARES -----------------------------------------------------------------
8. SHARED VOTING POWER
BENEFICIALLY
56,810,375
OWNED BY EACH -----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
REPORTING
-0-
PERSON -----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
WITH
56,810,375
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
56,810,375
--------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
72.1%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
SCHEDULE 13D
--------------------------------------------------------------------------------
CUSIP NO. 4063691 08 7 Page 6 of 14 Pages
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Immanuel Thangaraj
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e)
[ ]
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
--------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF
-0-
SHARES -----------------------------------------------------------------
8. SHARED VOTING POWER
BENEFICIALLY
56,810,375
OWNED BY EACH -----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
REPORTING
-0-
PERSON -----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
WITH
56,810,375
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
56,810,375
--------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
72.1%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
SCHEDULE 13D
--------------------------------------------------------------------------------
CUSIP NO. 4063691 08 7 Page 7 of 14 Pages
--------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
J. Douglas Eplett
--------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
--------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e)
[ ]
--------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
--------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF
-0-
SHARES -----------------------------------------------------------------
8. SHARED VOTING POWER
BENEFICIALLY
56,810,375
OWNED BY EACH -----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
REPORTING
-0-
PERSON -----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
WITH
56,810,375
--------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
56,810,375
--------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
72.1%
--------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
ORIGINAL REPORT ON SCHEDULE 13D
Item 1. Security and Issuer
This statement on Schedule 13D relates to 56,810,375 shares of common
stock, $0.01 par value per share (the "Common Stock"), of Acura Pharmaceuticals,
Inc. (the "Company"). Of the 56,810,375 shares beneficially owned, (i) 206,170
shares are currently held by the Partnership (as defined below); (ii) 33,909,751
represent shares that are convertible on a 5-for-1 basis from 6,781,950 shares
of Series A Preferred Stock currently held by the Partnership; (iii) 6,756,207
represent shares that are convertible on a 1-for-1 basis from shares of Series B
Preferred Stock currently held by the Partnership; (iv) 15,593,247 represent
shares that are convertible on a 1-for-1 basis from shares of Series C-3
Preferred Stock currently held by the Partnership and (v) 345,000 shares may be
acquired upon the exercise of a Common Stock Purchase Warrant. The Company's
principal executive offices are located at 695 North Perryville Road, Rockford,
Illinois 61107.
Item 2. Identity and Background
(a) This Schedule 13D is being filed jointly by Essex Woodlands Health
Ventures Fund V, L.P., a Delaware limited partnership (the "Partnership"), Essex
Woodlands Health Ventures V, L.L.C., a Delaware limited liability company,
the general partner of the Partnership (the "General Partner"), James L. Currie,
an individual, Martin P. Sutter, an individual, Immanuel Thangaraj, an
individual, and J. Douglas Eplett, an individual (each a "Manager",
collectively, the "Managers", together with the Partnership and the General
Partner, the "Reporting Persons").
(b) The address of the principal business of each of the Reporting
Persons is 10001 Woodloch Forest Drive, Suite 175, The Woodlands, Texas 77380.
(c) The principal business of the Partnership is venture capital
investments. The principal business of the General Partner is to act as the
general partner of the Partnership. The principal business of the Managers is to
direct the activities of the General Partner.
(d) None of the Reporting Persons have, during the last five years,
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) None of the Reporting Persons have, during the last five years,
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which such person was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
(f) Each Manager is a citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration
On December 20, 2002, the Partnership, along with other investors,
entered into a Debenture Purchase Agreement ("2002 Purchase Agreement"), with
the Company pursuant to which the Partnership purchased $5,000,000 of the
Company's 5% Convertible Senior Secured Debentures (the "2002 Debentures"). The
Partnership also purchased an aggregate of $2,200,000 in additional 5%
Convertible Senior Secured Debentures during the year ending 2003 (the "2003
Debentures") pursuant to the 2002 Purchase Agreement.
Page 8 of 14
On February 6, 2004, the Partnership, along with other investors, entered into a
Debenture and Share Purchase Agreement ("2004 Purchase Agreement"), attached
hereto as Exhibit 2, with the Company and pursuant to which the Partnership
purchased an aggregate of $4,315,767 of the Company's 5% Convertible Senior
Secured Debentures (the "2004 Debentures", and collectively with the 2002
Debentures and 2003 Debentures the "Debentures"). In connection with the
execution of the 2004 Purchase Agreement, the Partnership executed the Debenture
Conversion Agreement dated February 6, 2004 (the "Conversion Agreement"),
attached hereto as Exhibit 3 and further described herein. The 2002 Purchase
Agreement was terminated by the Conversion Agreement.
On May 5, 2003 the Partnership received a Common Stock Purchase
Warrant, attached hereto as Exhibit 4, to purchase 345,000 shares of Common
Stock of the Company at a price of $0.34 per share in exchange for a commitment
by the Partnership to participate in the funding of the Company. On November 16,
2004, the Partnership received notice from the Company that the price of the
Common Stock Purchase Warrant was being adjusted to $0.1285 per share.
The Partnership received 40,115 shares of Common Stock on March 31,
2004, 74,362 shares of Common Stock on June 30, 2004 and 91,693 shares of Common
Stock on September 30, 2004 as interest payments on a senior secured note (the
"Note") made to the Company by several investors, including the Partnership, in
an aggregate amount of $5,000,000. The interest rate on the note is 4.5% over
prime and the price for each payment was based upon the average of the closing
prices of the Company's Common Stock for the twenty (20) days prior to the end
of each quarter.
The purchase price for all of the Debentures and the Note was paid in
cash from the working capital of the Partnership and not the assets of the
General Partner nor the Managers.
Item 4. Purpose of Transaction
Pursuant to the Conversion Agreement, on August 13, 2004 the
Partnership converted all of the convertible debentures it owned, which included
(i) an aggregate of $5,428,009, including $428,009 in interest, of the 2002
Debentures into 15,593,247 shares of Series C-3 Preferred Stock; (ii) an
aggregate of $2,310,623, including $110,623 in interest, of the 2003 Debentures
into 6,756,207 shares of Series B Preferred Stock; and (iii) an aggregate of
$4,357,403, including $41,636 in interest, of the 2004 Debentures into 6,781,950
shares of Series A Preferred Stock.
Prior to the Company's stockholder meeting on August 12, 2004, the
Company did not have enough authorized and unreserved shares of its Common Stock
available for issuance upon conversion of the Debentures. Therefore, holders of
the Debentures, including the Partnership, having the right to vote as part of a
single class with all holders of the Company's Common Stock, entered into a
Voting Agreement, dated December 20, 2004, which was amended and restated by
that certain Amended and Restated Voting Agreement, dated February 6, 2004 (the
"2004 Voting Agreement"), attached hereto as Exhibit 5. The 2004 Voting
Agreement obligated the Partnership to vote for amending the Company's
Certificate of Incorporation to create a Series A Preferred, Series B Preferred
and Series C Preferred Stock (collectively, the "Preferred Stock") for issuance
upon conversion of the Debentures and increasing the number of authorized shares
of Common Stock available for issuance upon the conversion of the Preferred
Stock.
The Partnership has the right to designate for nomination a member to
the Company's Board of Directors, which is evidenced by the 2004 Voting
Agreement. If the designee so requests, the designee shall be appointed to the
Company's Executive Committee, Compensation Committee and any other committee of
the Board of Directors. Accordingly, the Partnership designated and the Company
appointed Mr. Thangaraj to the Company's Board of Directors.
In connection with the 2004 Purchase Agreement, the Partnership, along
with other investors, executed an Investor Rights Agreement, dated February 4,
2004 (the "Investor Rights Agreement"), attached hereto as Exhibit 6. So long as
any of the Series A Preferred Stock is outstanding, the Investor Rights
Agreement provides that the Company will not, without the prior consent of the
holders of the Series A Preferred Stock, allow, among other things, any
modification of the rights of the holders of the Series A Preferred, the
issuance of any senior securities by the Company, certain distributions to
Page 9 of 14
Company security holders and certain extraordinary corporate transactions by the
Company. The Partnership also has a right to have a representative join the
Company's Scientific Advisory Board, subject to the approval of the Board of
Directors. The Investor Rights Agreement obligates the Company to obtain consent
of the Series B Preferred and Series C Preferred stockholders prior to any
adverse change in the rights, preferences or privileges of each.
The Investor Rights Agreement gives the Partnership a right of first
refusal relating to any subsequent issuance, sale or exchange of any shares of
the Common Stock or convertible securities to a third party. The Investor Rights
Agreement contains conditions and limitations associated with the exercise of
the right of first refusal.
The Partnership entered into an Amended and Restated Registration
Rights Agreement dated February 6, 2004 (the "Registration Rights Agreement"),
attached hereto as Exhibit 7, that provides the Partnership and certain other
investors with the right to cause the Company to register the Common Stock
issuable upon conversion of the Preferred Stock subject to certain conditions
and limitations contained therein.
The above summary description of the 2002 Purchase Agreement, the 2004
Purchase Agreement, the Conversion Agreement, the Investor Rights Agreement, and
the Registration Rights Agreement is not intended to be complete and is
qualified in its entirety by reference to the full text of the 2002 Purchase
Agreement, the 2004 Purchase Agreement, the Conversion Agreement, the Investor
Rights Agreement, and the Registration Rights Agreement which are incorporated
herein by reference. The summary description of the modification of the 2002
Purchase Agreement is not intended to be complete and is qualified in its
entirety by reference to the 2004 Purchase Agreement and all ancillary documents
thereto.
The Reporting Persons acquired the Securities solely for the purpose of
investment. The Reporting Persons may make additional purchases of the Company's
securities either in the open market or in private transactions depending on the
Company's business, prospects and financial condition, the market for the
Company's securities, general economic conditions, money and stock market
conditions and other future developments.
Except as described in this Schedule 13D or as set forth in the
Exhibits attached hereto, none of the Reporting Persons has any present plan or
proposal which relates to, or could result in, any of the events referred to in
paragraphs (a) through (j), inclusive, of Item 4 of Schedule 13D. However, the
Reporting Persons will continue to review the business of the Company and,
depending upon one or more of the factors referred to above, may in the future
propose that the Company take one or more such actions.
Item 5. Interest in Securities of the Partnership
TOTAL OUTSTANDING SHARES. According to information provided to the
Reporting Persons by the Company, the number of shares of the Company's Common
Stock outstanding on November 12, 2004 was 22,189,252.
THE PARTNERSHIP. As of the date of filing of this Schedule 13D, the
Partnership is the holder of 206,170 shares of Common Stock, Series A, Series B
and Series C-3 Preferred Stock convertible into 56,259,205 shares of Common
Stock, and a warrant to purchase shares of Common Stock of the Company, which
collectively represents approximately 72.1% of the Common Stock outstanding, and
it has shared voting and investment power with respect to such securities.
Page 10 of 14
THE GENERAL PARTNER. The General Partner of the Partnership may also be
deemed to have shared voting and investment power with respect to such
securities. The General Partner disclaims beneficial ownership of such
securities except to the extent of its pecuniary interest therein.
MESSRS. CURRIE, SUTTER, THANGARAJ AND EPLETT. Under the operating
agreement of the General Partner, Messrs. Currie, Sutter, Thangaraj and Eplett
have the power by unanimous consent (i) to cause the Partnership to buy and sell
marketable securities of portfolio companies and (ii) to direct the voting of
such securities. As a result, Messrs. Currie, Sutter, Thangaraj and Eplett may
also be deemed to have shared dispositive power and voting power with respect to
the securities held by the Partnership. Messrs. Currie, Sutter, Thangaraj and
Eplett disclaim beneficial ownership of such securities except to the extent of
their respective pecuniary interests therein.
Except for the transactions described in this Schedule 13D, none of the
Reporting Persons has effected any transactions in the securities of the Company
during the past 60 days.
Item 6. Contracts, Arrangements, Understandings or Relationships with respect
to Securities of the Company
See response to Item 4.
A copy of the 2004 Purchase Agreement is attached hereto as Exhibit 2
and is incorporated herein by reference.
A copy of the Conversion Agreement is attached hereto as Exhibit 3 and
is incorporated herein by reference.
A copy of the Common Stock Purchase Warrant is attached hereto as
Exhibit 4 and is incorporated herein by reference.
A copy of the Voting Agreement is attached hereto as Exhibit 5 and is
incorporated herein by reference.
A copy of the Investor Rights Agreement is attached hereto as Exhibit 6
and is incorporated herein by reference.
A copy of the Registration Rights Agreement is attached hereto as
Exhibit 7 and is incorporated herein by reference.
Except for the agreements and instruments described in the response to Item 4,
to the best knowledge of the Reporting Persons, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) among the
persons named in Item 2 and between such persons and any person with respect to
any securities of the Company, including, but not limited to, transfer or voting
of any of the securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or loss,
or the giving or withholding of proxies.
Item 7. Material to be filed as Exhibits
Exhibit 1: Joint Filing Agreement, dated November 2, 2004.
Exhibit 2: Debenture and Share Purchase Agreement, dated
February 6, 2004, by and among the Company, the
Partnership and the other parties listed on the
signature page thereto. Exhibit 10.1 to the
Company's Form 8-K as filed with the Commission on
February 10, 2004 (the "Form 8-K") is incorporated
herein by reference.
Page 11 of 14
Exhibit 3: Debenture Conversion Agreement, dated as of
February 6, 2004, by and among the Company, the
Partnership and the other parties listed on the
signature page thereto. Exhibit 10.2 to the Form 8-K
is incorporated herein by reference.
Exhibit 4: Common Stock Purchase Warrant dated May 8, 2003
issued to the Partnership.
Exhibit 5: Amended and Restated Voting Agreement, dated as of
February 6, 2004, among the entities listed on the
signature page thereto. Exhibit 10.5 to the Form 8-K
is incorporated herein by reference.
Exhibit 6: Investor Rights Agreement, dated as of February 6,
2004, by and among the Company, the Partnership and
the parties listed on the signature page thereto.
Exhibit 10.4 to the Form 8-K is incorporated herein
by reference.
Exhibit 7: Amended and Restated Registration Rights
Agreement, dated as of February 6, 2004, by and
between the Company, the Partnership and the parties
listed on the signature page thereto. Exhibit 10.6
to the Form 8-K is incorporated herein by reference.
Page 12 of 14
SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct.
Date: December 7, 2004 ESSEX WOODLANDS HEALTH VENTURES FUND V, L.P.
By: Essex Woodlands Health Ventures Fund V,
L.L.C.
/s/ Martin P. Sutter
--------------------------------------------
Name: Martin P. Sutter
Title: Managing Director
ESSEX WOODLANDS HEALTH VENTURES FUND V, L.L.C.
/s/ Martin P. Sutter
----------------------------------------------
Name: Martin P. Sutter
Title: Managing Director
/s/ James L. Currie
----------------------------------------------
Name: James L. Currie
/s/ Martin P. Sutter
----------------------------------------------
Name: Martin P. Sutter
/s/ Immanuel Thangaraj
----------------------------------------------
Name: Immanuel Thangaraj
/s/ J. Douglas Eplett
----------------------------------------------
Name: J. Douglas Eplett
Page 13 of 14
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
1 Joint Filing Agreement, dated November 2, 2004.
2 Debenture and Share Purchase Agreement, dated
February 6, 2004, by and among the Company, the
Partnership and the other parties listed on the
signature page thereto. Exhibit 10.1 to the
Company's Form 8-K as filed with the Commission on
February 10, 2004 (the "Form 8-K") is incorporated
herein by reference.
3 Debenture Conversion Agreement, dated as of
February 6, 2004, by and among the Company, the
Partnership and the other parties listed on the
signature page thereto. Exhibit 10.2 to the Form 8-K
is incorporated herein by reference.
4 Common Stock Purchase Warrant dated May 8, 2003
issued to the Partnership.
5 Amended and Restated Voting Agreement, dated as of
February 6, 2004, among the entities listed on the
signature page thereto. Exhibit 10.5 to the Form 8-K
is incorporated herein by reference.
6 Investor Rights Agreement, dated as of February 6,
2004, by and among the Company, the Partnership and
the parties listed on the signature page thereto.
Exhibit 10.4 to the Form 8-K is incorporated herein
by reference.
7 Amended and Restated Registration Rights
Agreement, dated as of February 6, 2004, by and
between the Company, the Partnership and the parties
listed on the signature page thereto. Exhibit 10.6
to the Form 8-K is incorporated herein by reference.
Page 14 of 14