As
filed
with the Securities and Exchange Commission on April 10, 2006.
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
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11-0853640
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(State
or
Other Jurisdiction of Incorporation or Organization) |
(IRS
Employer Identification
No.)
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616
N.
North Court, Suite 120, Palatine, Illinois 60067
(Address
of Principal Executive Offices)
Acura
Pharmaceuticals, Inc. 2005 Restricted Stock Unit Award 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 for Restricted Stock
Units
|
30,000,000
|
$0.58
|
$17,400,000
|
$1,862(2)
|
|
|
|
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(1)
The
aggregate amount of securities registered hereunder is 30,000,000 shares of
Common Stock underlying Restricted Stock Units granted or to be granted under
the 2005 Restricted Stock Units Award Plan. 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)
The
fee with respect to these shares has been calculated pursuant to paragraphs
(h)
and (c) of Rule 457 upon the basis of $0.58, the average of the bid and asked
price per share of the Registrant's Common Stock on April 6,, 2006, 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, and is based on the rate of $107 per million
set forth in Release Nos. 33-8572/34-51631 (April, 2005)
EXPLANATORY
STATEMENT
We
are
filing this Registration Statement to register 30,000,000 shares of our Common
Stock for issuance pursuant to the Acura Pharmaceuticals, Inc. 2005 Restricted
Stock Unit Award Plan, as amended (the "Plan").
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Not
required to be filed with this Registration Statement.
ITEM
2.
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REGISTRANT
INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION |
Not
required to be filed with this Registration Statement.
ITEM
3.
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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"):
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1.
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Our
Annual Report on Form 10-K for the fiscal year ended December 31,
2005,
filed with the Commission on February 21,
2006;
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2. |
Our Current Reports on Form 8-K filed with the
Commission
on January 4, 2006, January 31, 2006, February 21, 2006 and March
28,
2006. |
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3.
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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").
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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 superseded.
ITEM
4.
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DESCRIPTION
OF
SECURITIES |
Not
applicable.
ITEM
5.
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INTERESTS
OF
NAMED EXPERTS AND COUNSEL |
The
legality of the Common Stock to be offered hereby has been passed upon for
the
company by St. John & Wayne, L.L.C., Two Penn Plaza East, Newark, New Jersey
07105. St. John & Wayne, L.L.C. owns 34, 913 shares of the Registrant’s
Common Stock.
ITEM
6.
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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.
The
Registrant maintains a director and officer liability insurance policy that,
subject to the terms and conditions of the policy, provides coverage up to
$10,000,000 in the aggregate (subject to a $200,000 retention for securities
claims and $100,000 for other claims) 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
7.
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EXEMPTION
FROM
REGISTRATION CLAIMED |
Not
applicable.
See
Index
of Exhibits on Page 8.
(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 this 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
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
(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
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement
is on Form S-3, Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by these paragraphs is contained in
periodic reports filed with or furnished to the Commission 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 that 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 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 Securities and Exchange Commission 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.
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 April 7, 2006.
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ACURA
PHARMACEUTICALS, INC. |
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By: |
/s/ Andrew
D.
Reddick |
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Andrew
D. Reddick |
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President
and
Chief Executive Officer
(Principal Executive
Officer)
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POWER
OF ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Andrew D. Reddick and Immanuel Thangaraj, 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
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Title
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Date
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/s/
Andrew D. Reddick
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President,
Chief Executive Officer
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April
7, 2006
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Andrew
D. Reddick
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Director
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April
7, 2006
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Jerry
Karabelas
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/s/
William G. Skelly
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Director
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April
7, 2006
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William
G. Skelly
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/s/
Bruce F. Wesson
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Director
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April
7, 2006
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Bruce
F. Wesson
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Director
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April
7, 2006
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William
Sumner
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/s/
Immanuel Thangaraj
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Director
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April
7, 2006
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Immanuel
Thangaraj
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/s/
Peter A. Clemens
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Senior
Vice President and
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April
7, 2006
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Peter
A. Clemens
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(Principal
Financial and Accounting Officer)
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INDEX
OF EXHIBITS
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
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10.1 |
Acura
Pharmaceuticals, Inc. 2005 Restricted Stock Unit Award
Plan
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23.1 |
Consent
of Grant Thornton LLP
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23.2 |
Consent
of BDO Seidman, LLP
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23.3 |
Consent
of St. John & Wayne, L.L.C. (included in Exhibit
5.1)
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24.1 |
Power
of Attorney (included on the signature page
hereto)
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