Unassociated Document


     

    Exhibit
      10.4

    


    FIFTH
      AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT

    


    THIS
      FIFTH
      AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (this
      “Amendment”)
      made
      this 9th
      day of
      July, 2008 by and between ACURA
      PHARMACEUTICALS, INC.,
      a New
      York corporation (the “Corporation”),
      with
      offices at 616 N. North Court, Suite 120, Palatine, Illinois 60067 and
PETER
      A. CLEMENS
      (the
“Employee”).

    


    RECITALS

    


    
      	
              A.  

            	
              The
                Corporation and the Employee executed an Executive Employment Agreement
                dated as of March 10, 1998, as amended (as amended, the “Employment
                Agreement”).

            


    

    


    
      	
              B.  

            	
              The
                Corporation and the Employee now desire to further amend the Employment
                Agreement as provided herein. 

            


    

    


    NOW,
      THEREFORE,
      in
      consideration of the mutual covenants and undertakings herein contained, the
      parties agree as follows:

    


    1. Section
      8.4 of the Employment Agreement is hereby amended to add the following two
      sentences at the end of such Section to read as follows:

    


    “With
      respect to other Sections of this Agreement, termination “Without Cause” shall
      also mean a termination of
      the
      Employee’s employment with the Corporation following notice by the Corporation
      to the Employee to not renew this Agreement pursuant to Section 2. In such
      case,
      in the absence of the Employee’s prior termination of this Agreement for Good
      Reason pursuant to Section 8.5, the effective date of such termination shall
      be
      the expiration of the Term.”

    


    2. Section
      8.5 of the Employment Agreement is hereby amended by deleting clause (v) in
      the
      definition of “Good Reason” and replacing same with the following: 

    


    “(v)
      the
      failure of the Corporation to obtain the agreement, in a form reasonably
      satisfactory to Employee, from any successor to the Corporation to assume and
      agree to perform this Agreement or (vi) notice by the Corporation to the
      Employee to not renew this Agreement pursuant to Section 2.”

    


    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.

     

    
      	 	
               

            	
              ACURA
                PHARMACEUTICALS, INC.

            
	
               

            	
               

            	
               

            
	 	
               

            	
              By: /s/
                Andrew D. Reddick            

            
	
               

            	
               

            	
              Name:
                Andrew D. Reddick

            
	
               

            	
               

            	
              Title:
                President and

            
	
               

            	
               

            	
                       
                Chief Executive Officer

            
	
               

            	
               

            	
               

            
	 	
               

            	
              EMPLOYEE

            
	
               

            	
               

            	
               

            
	 	
               

            	
              By:
                /s/ Peter
                A. Clemens              

            
	
               

            	
               

            	
              Peter
                A. Clemens

            


    

    


    
      
        
        

      

      
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