Unassociated Document


     

    Exhibit
      10.2

    

      THIRD
        AMENDMENT TO EMPLOYMENT AGREEMENT

      


      THIS
        THIRD
        AMENDMENT TO EMPLOYMENT AGREEMENT (this
        “Amendment”)
        made
        this 9th
        day of
        July, 2008 by and between ACURA
        PHARMACEUTICALS, INC.,
        a New
        York corporation (the “Corporation”)
        and
        RON J. SPIVEY (the
        “Employee”).

      


      RECITALS

      


      
        	
                A.  

              	
                The
                  Corporation and the Employee executed an employment agreement dated
                  as of
                  April 5, 2004, which was subsequently amended (as amended, the
                  “Employment
                  Agreement”).

              
	 	 
	
                B.  

              	
                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. 

              


      

      


      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.

       

      
        
          
          

        

        
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      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        

              
	
                Andrew
                  D. Reddick

              
	
                President
                  and Chief Executive Officer

              
	 
	 
	
                EMPLOYEE

              
	 
	
                By:
                  /s/ Ron
                  J. Spivey            

              
	
                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.

       

      
        
          
          

        

        
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      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.

       

      
        
          
          

        

        
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      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 programs, statistics, manufacturing and production methods,
        processes, techniques, pricing, marketing methods and plans, specifications,
        advertising plans and campaigns or any other matters, and all other confidential
        information of the Corporation, its subsidiaries and affiliates (hereinafter
        referred to as "Confidential
        Information").
        The
        restrictions on the disclosure of Confidential Information imposed by this
        Section 8.1 shall not apply to any Confidential Information that was part
        of the
        public domain at the time of its receipt by the Employee or becomes part
        of the
        public domain in any manner and for any reason other than an act by the
        Employee, unless the Employee is legally compelled (by applicable law,
        deposition, interrogatory, request for documents, subpoena, civil investigative
        demand or similar process) to disclose such Confidential Information, in
        which
        event the Employee shall provide the Corporation with prompt notice of such
        requirement so that the Corporation may seek a protective order or other
        appropriate remedy, and if such protective order or other remedy is not
        obtained, the Employee shall exercise reasonable efforts in good faith to
        obtain
        assurance that confidential treatment will be accorded such Confidential
        Information.

       

      
        
          
          

        

        
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      8.2   Return
        Memoranda, etc.
        To
        deliver promptly to the Corporation on termination of his employment, or
        at any
        other time the Corporation may so request, all memoranda, notes, records,
        reports, manuals, drawings, blueprints and other documents (and all copies
        thereof) relating to the Corporation's business and all property associated
        therewith, which the Employee may then possess or have under his
        control.

       

      8.3   Non-competition.
        Provided that this Agreement has not been breached by the Corporation, the
        Employee agrees that he shall not at any time prior to one (1) year after
        the
        expiration or termination of his employment with the Corporation, own, manage,
        operate, be a director or an employee of, or a consultant to any person,
        business, corporation, partnership, trust, limited liability company or other
        firm or enterprise ("Person")
        which
        is engaged in marketing, selling or distributing products or in developing
        product candidates in the United States which are directly competitive with
        products or product candidates in development as evidenced by the current
        written product development plan and/or business plan of the Corporation
        at the
        time of termination of the Employee's employment and/or described in the
        Corporation’s most recent filing on Form 10-K with the Securities and Exchange
        Commission as of the date of the termination of the Employee’s employment.


       

      
        
          
          

        

        
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      If
        any of
        the provisions of this section, or any part thereof, is hereinafter construed
        to
        be invalid or unenforceable, the same shall not affect the remainder of such
        provision or provisions, which shall be given full effect, without regard
        to the
        invalid portions. If any of the provisions of this section, or any part thereof,
        is held to be unenforceable because of the duration of such provision, the
        area
        covered thereby or the type of conduct restricted therein, the parties agree
        that the court making such determination shall have the power to modify the
        duration, geographic area and/or other terms of such provision and, as so
        modified, said provision shall then be enforceable. In the event that the
        courts
        of any one or more jurisdictions shall hold such provisions wholly or partially
        unenforceable by reason of the scope thereof or otherwise, it is the intention
        of the parties hereto that such determination not bar or in any way affect
        the
        Corporation's right to the relief provided for herein in the courts of any
        other
        jurisdictions as to breaches or threatened breaches of such provisions in
        such
        other jurisdictions, the above provisions as they relate to each jurisdiction
        being, for this purpose, severable into diverse and independent
        covenants.

       

      8.4   Injunctive
        Relief.
        The
        Employee acknowledges and agrees that, because of the unique and extraordinary
        nature of his services, any breach or threatened breach of the provisions
        of
        Sections 8.1, 8.2, or 8.3 hereof will cause irreparable injury and incalculable
        harm to the Corporation, and the Corporation shall, accordingly, be entitled
        to
        injunctive and other equitable relief for such breach or threatened breach
        and
        that resort by the Corporation to such injunctive or other equitable relief
        shall not be deemed to waive or to limit in any respect any right or remedy
        which the Corporation may have with respect to such breach or threatened
        breach.

       

      8.5   Expenses
        of Enforcement of Covenants.
        In the
        event that any action, suit or proceeding at law or in equity is brought
        to
        enforce the covenants contained in Section 8.1, 8.2, or 8.3 hereof or to
        obtain
        money damages for the breach thereof, the party prevailing in any such action,
        suit or other proceeding shall be entitled upon demand to reimbursement from
        the
        other party for all expenses (including, without limitation, reasonable
        attorneys' fees and disbursements) incurred in connection
        therewith.

       

      
        
          
          

        

        
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      8.6   Non-Solicitation.
        The
        Employee covenants and agrees not to (and not to cause or direct any Person
        to)
        hire or solicit for employment any employee of the Corporation or any of
        its
        subsidiaries or affiliates. The prohibitions of this Section 8.6 shall apply
        for
        twelve (12) months following the termination of the Employee’s
        employment.

       

      8.7   Assignment
        of Invention.
        All
        discoveries, inventions, improvements and innovations, whether patentable
        or not
        (including all data and records pertaining thereto), which Employee may have
        invented, discovered, originated or conceived of during the Term of his
        employment with the Corporation prior to the date of the Amendment or may
        invent, discover, originate or conceive during the Term of this Agreement
        and
        which directly relate to the business of the Corporation or any of its
        subsidiaries as described in the Corporation’s filings with the Securities and
        Exchange Commission, shall be the sole and exclusive property of the
        Corporation. Employee shall promptly and fully disclose each and all such
        discoveries, inventions, improvements or innovations to the Corporation.
        Employee shall assign to the Corporation his entire right, title and interest
        in
        and to all of his discoveries, inventions, improvements and innovation described
        in this Section 8.7 and any related U.S. or foreign patent and patent
        applications, shall execute any instruments reasonably necessary to convey
        or
        perfect the Corporation’s ownership thereof, and shall assist the Corporation in
        obtaining, defending and enforcing its rights therein. The Corporation shall
        bear all expenses it authorizes to be incurred in connection with such activity
        and shall pay the Employee reasonable compensation for time spent by the
        Employee in performing such duties at the request of the Corporation after
        the
        termination of his employment, for a period not to exceed three (3)
        years.

       

      9.    
Indemnification.
        The
        Corporation will defend, indemnify and hold harmless the Employee, to the
        maximum extent permitted by applicable law and the by-laws of the Corporation,
        against all claims, costs, charges and expenses incurred or sustained by
        him in
        connection with any action, suit or other proceeding to which he may be made
        a
        party by reason of his being an officer, director or employee of the Corporation
        or of any subsidiary or affiliate thereof.

       

      10.   Notices.
        All
        notices, requests, consents and other communications required or permitted
        to be
        given hereunder, shall be in writing and shall be deemed to have been duly
        given
        if delivered personally or sent by facsimile, with confirmation of receipt,
        or
        mailed first-class, postage prepaid, by registered or certified mail (notices
        sent by mail shall be deemed to have been given three (3) business days after
        the date sent), to the parties at their respective addresses herein above
        set
        forth or to such other address as either party shall designate by notice
        in
        writing to the other in accordance herewith.

       

      
        
          
          

        

        
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      11.   Governing
        Law.
        This
        Agreement shall be governed by 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.

       

      12.   Captions.
        The
        section headings contained herein are for reference purposes only and shall
        not
        in any way affect the meaning or interpretation of this Agreement. 

       

      13.   Entire
        Agreement.
        This
        Agreement sets forth the entire agreement and understanding of the parties
        relating to the subject matter hereof, and supersedes all prior agreements,
        arrangements and understandings, written or oral, relating to the subject
        matter
        hereof including the Original Agreement. Employee acknowledges that upon
        the
        Effective Date he will not be entitled to any severance payment under the
        Original Agreement or any bonuses for any calendar year after 2008. No
        representation, promise or inducement has been made by either party that
        is not
        embodied in this Agreement, and neither party shall be bound by or liable
        for
        any alleged representation, promise or inducement not so set forth.

       

      14.   Assignability.
        This
        Agreement, and the Employee's rights and obligations hereunder, may not be
        assigned by the Employee. The Corporation may assign its rights, together
        with
        its obligations, hereunder in connection with any sale, transfer or other
        disposition of all or substantially all of its business or assets; in any
        event
        the rights and obligations of the Corporation hereunder shall be binding
        on its
        successors or assigns, whether by merger, consolidation or acquisition of
        all or
        substantially all of its business or assets.

       

      15.   Amendments.
        This
        Agreement may be amended, modified, superseded, canceled, renewed or extended
        and the terms or covenants hereof may be waived, only by a written instrument
        executed by both of the parties hereto, or in the case of a waiver, by the
        party
        waiving compliance. No superseding instrument, amendment, modification,
        cancellation, renewal or extension hereof shall require the consent or approval
        of any person other than the parties hereto. The failure of either party
        at any
        time or times to require performance of any provision hereof shall in no
        manner
        affect the right at a later time to enforce the same. No waiver by either
        party
        of the breach of any term or covenant contained in this Agreement, whether
        by
        conduct or otherwise, in any one or more instances, shall be deemed to be,
        or
        construed as, a further or continuing waiver of any such breach, or a waiver
        of
        the breach of any other term or covenant contained in this
        Agreement.

       

      
        
          
          

        

        
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      16.   Counterparts.
        This
        Agreement 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.

       

      17.   Severability.
        The
        provisions of this Agreement shall be deemed severable, and if any part of
        any
        provision is held illegal, void or invalid under applicable law, such provision
        may be changed to the extent reasonably necessary to make the provision,
        as so
        changed, legal, valid and binding. If any provision of this Agreement is
        held
        illegal, void or invalid in its entirety, the remaining provisions of this
        Agreement shall not in any way be affected or impaired but shall remain binding
        in accordance with their terms.

      


      18.   In
        witness whereof, the parties have executed this Agreement as of July _____,
        2008.

      


      


      


      ACURA
        PHARMACEUTICALS, INC.

      


      By:      

      Andrew
        D.
        Reddick

      President
        and Chief Executive Officer

      


      


      EMPLOYEE

      


      By:      

      Ron
        J.
        Spivey

       

       

      
        
          
          

        

        
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