AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(the
"
Agreement ")
effective as of the 1st day of January, 2009 (the “Effective
Date”) by and between
ACURA PHARMACEUTICALS, INC. ,
a New York corporation (the "
Corporation "),
with administrative offices at 616 N. North Court, Suite 120,
Palatine, IL 60067 and
RON J. SPIVEY ,
residing at 3514 Bimini Avenue, Cooper City, Florida 33026
(the
"
Employee ").
W I T N E S S E T H
WHEREAS ,
Employee has been employed by the Corporation pursuant to an
Executive Employment Agreement dated as of April 5, 2004, as
amended (the “Original Agreement”); and
WHEREAS ,
the Employee desires to reduce his role with the Corporation
commencing January 1, 2009; and
WHEREAS ,
the parties hereto have agreed to amend and restate the Original
Agreement, as provided herein;
NOW, THEREFORE ,
in consideration of the mutual covenants and undertakings herein
contained, the parties agree as follows:
1.
Employment, Duties and Acceptance .
1.1
Services .
Commencing on the Effective Date the Corporation shall continue the
employment of the Employee pursuant to the terms of this Agreement
for the Term (as defined in Section 2 hereof), to render services
to the Corporation of ten (10) weeks per year, at such times as
mutually agreed by the Corporation's Chief Executive Officer
("CEO") and the Employee, as the Corporation's Senior Scientific
Advisor, subject to the direction of the CEO and the Corporation's
Board of Directors. In connection therewith, the Employee shall
assist and advise the Corporation with the development of product
candidates and such other tasks as may be further reasonably be
requested to be performed by the CEO, to whom the Employee shall
report, and to use his commercially reasonable best efforts, skill
and abilities to promote the interests of the Corporation and its
subsidiary. The Employee shall perform the services for the
Corporation from his home office and by traveling to the
Corporation's facilities and such other locations as shall be
agreed by the Employee and CEO from time to time, including,
without limitation, the locations of contract research
organizations, clinical trial sites, and other locations required
for meetings or presentations with prospective investors, counsel,
prospective pharmaceutical partners and other locations as the CEO
shall determine to be in the best business interests of the
Corporation. The Employee acknowledges and agrees that the change
in the Employee’s title, reduction in responsibilities,
service hours, and compensation is being effected at the request of
the Employee and will not constitute or be deemed grounds for the
Employee’s “Good Reason” termination as provided
in Section 7.5 of the Original Agreement.
1.2
Acceptance .
The Employee hereby accepts the terms of continued employment with
the Corporation and commencing on the Effective Date, and agrees to
render the services described in Section 1.1 hereof.
2.
Term of Employment .
The term of the Employee’s employment under this Agreement
shall commence on the Effective Date and shall expire on December
31, 2010 (the “
Term ”),
unless sooner terminated pursuant to Section 7 of this
Agreement.
3.
Compensation .
In consideration of the services to be rendered by the Employee
pursuant to this Agreement, the Corporation shall pay the Employee
an aggregate annual base salary of One Hundred Twenty Thousand
Dollars ($120,000) (the "
Base Salary "),
payable in equal weekly installments in accordance with the
Corporation’s customary payroll practices, less such
deductions or amounts to be withheld as required by applicable laws
and regulations.
4.
Expenses .
The Corporation shall pay or reimburse the Employee for all
reasonable expenses which are incurred in accordance with the
Corporation’s expense policy in force from time to time and
which are actually incurred or paid by the Employee during the Term
in the performance of his services under this Agreement, upon
presentation of expense statements or vouchers or such other
supporting information as the Corporation may reasonably require.
Such expenses shall include, but not be limited to, business
travel, travel to corporate facilities and related temporary living
expenses, meals and lodging, and business
entertainment.
5.
Additional Benefits .
In addition to the compensation and expenses to be paid under
Sections 3 and 4 hereof, the Employee will be entitled to such
rights and benefits for which he may be eligible (as a part time
employee) under any insurance or retirement plan of the Corporation
as the Board of Directors shall adopt from time to time in its sole
and absolute discretion for the benefit of employees of the
Corporation.
6.
Stock Options/Restricted Stock Units .
The Employee and the Corporation acknowledge and agree that the
stock options and restricted stock unit awards issued to the
Employee by the Corporation as of the date of this Agreement shall
remain in full force and effect and the Employee’s right to
exercise such stock options and to receive distributions under such
restricted stock units shall be as provided in the respective award
agreements and the plans pursuant to which such stock options and
restricted stock unit awards were issued; provided, however, that
with respect to the stock options granted to the Employee on May
23, 2008 exercisable for up to 160,000 shares of the
Corporation’s common stock, in the event of the termination
of the Employee’s employment (a) by the Employee, the
Employee may exercise such options to the extent vested at the date
of termination during the forty (40) day period following the date
of termination, and (b) by the Corporation, the Employee may
exercise such options to the extent vested at the date of
termination during the twelve (12) month period following the date
of termination.
7.
Termination .
The Corporation may terminate the Employee’s employment with
the Corporation for any reason at any time during the Term upon
written notice. The Corporation's obligation to pay compensation or
any other amounts payable hereunder to or for the benefit of the
Employee shall terminate on the earlier to occur of (i) the date
the Employee terminates his employment, (ii) the date the
Corporation terminates the Employee’s employment, and (iii)
the date of death of the Employee, except for accrued and unpaid
Base Salary and expenses to the date of termination or
death.
8.
Protection of Confidential Information .
Because the Employee's services for the Corporation will bring him
into close contact with all the confidential affairs thereof, and
plans for future developments, the Employee agrees to the
following:
8.1
Secrecy .
During the Term and for five (5) years after the date of
termination of the Employee’s employment, to preserve the
confidential nature of, and not disclose, reveal, or make
accessible to anyone other than the Corporation’s officers,
directors, employees, consultants or agents, otherwise within the
scope of his employment duties and responsibilities hereunder, any
and all documents, information, knowledge or data of or pertaining
to the Corporation, its subsidiaries or affiliates or pertaining to
any other individual, firm, corporation, partnership, joint
venture, business, organization, entity or other person with which
the Corporation or any of its subsidiaries or affiliates may do
business during the Term (including licensees, licensors,
manufacturers, suppliers and customers of the Corporation or any of
its subsidiaries or affiliates) and which is not in the public
domain, including trade secrets, "know how", names and lists of
licensees, licensors, manufacturers, suppliers and customers,
development plans or pro
