THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
THIS
THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
(this “
Amendment ”)
made this 9
th day
of July, 2008 by and between
ACURA PHARMACEUTICALS, INC. ,
a New York corporation (the “
Corporation”) and
RON J. SPIVEY (the
“
Employee ”).
R
E
C
I
TA
L
S
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A.
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The
Corporation and the Employee executed an employment agreement
dated as of April 5, 2004, which was subsequently amended (as
amended, the “
Employment Agreement ”).
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B.
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The
Corporation and the Employee now desire to further amend the
Employment Agreement as provided herein to provide (i) for a
bonus payment to Employee provided he remains employed by the
Corporation through December 31, 2008 and (ii) at
Employee’s request, for a reduction in Employee’s
duties to the Corporation during the period January 1, 2009
through December 31, 2010.
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NOW, THEREFORE ,
in consideration of the mutual covenants and undertakings herein
contained, the parties agree as follows:
1.
A new Section 3(c) is added to the Agreement as
follows:
“(c)
Retention Bonus. If
Employee remains as a full-time employee with the Corporation
through December 31, 2008 then he shall be entitled to a one-time
bonus payment of Three Hundred Fifteen Thousand Dollars ($315,000)
(the “Bonus Payment”), payable by the Corporation to
the Employee on December 31, 2008. If Employee ceases to be a
full-time employee for any reason prior to December 31, 2008, then
he shall not be entitled to the Bonus Payment;
provided ,
however ,
that the Bonus Payment will remain payable if the Employee’s
employment is terminated (i) by the Corporation (or its successor)
without Cause or following a Change of Control, or (ii) by the
Employee for Good Reason.
2.
Effective
January 1, 2009, assuming Executive’s employment with
the Corporation has not terminated prior thereto, the
Agreement shall be further amended and replaced in its
entirety effective as of such date by the Amended and Restated
Employment Agreement attached hereto as
Exhibit A .
During the period through December 31, 2008, the Employment
Agreement, as amended by this Amendment, shall govern the
employment relationship between the Corporation and Employee.
Commencing January 1, 2009, the Amended and Restated Employment
Agreement, attached hereto as
Exhibit A ,
shall govern the employment relationship between the Corporation
and Employee.
3.
Except
as expressly amended by this Amendment, the Employment
Agreement remains in full force and effect. Capitalized terms
used herein shall have the same meaning as in the Employment
Agreement unless otherwise defined herein. This Amendment
shall be governed and construed and enforced in accordance
with the local laws of the State of New York applicable to
agreements made and to be performed entirely in New
York.
4.
This
Amendment may be executed in one or more facsimile or original
counterparts, each of which shall be deemed an original, but
all of which taken together will constitute one and the same
instrument.
IN WITNESS WHEREOF ,
the parties have executed this Amendment as of the date first above
written.
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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
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EMPLOYEE
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By:
/s/ Ron
J. Spivey
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Ron
J. Spivey
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EXHIBIT A
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
