Unassociated Document


    SECOND
      AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT

    


    THIS
      SECOND
      AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (this
      “Amendment”)
      made
      this 19th
      day of December, 2007 by and between ACURA
      PHARMACEUTICALS, INC.
      (formerly Halsey Drug Co., 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 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
      7.6(a)(i) is hereby deleted and replaced with the following:

    


    “(i)
      each
      of the following amounts:

    


    
      	 	
              (x)
                

            	
              the
                Employee’s accrued and unpaid Base Salary through and including the date
                of terminations;

            


    

    


    
      	 	
              (y)
                

            	
              the
                Employee’s then accrued and unused vacation through and including the date
                of termination; and 

            


    

    


    
      	 	
              (z)

            	
              the
                Employee’s then accrued and unpaid Bonus for such year, calculated by
                pro-rating the annual Bonus, which would have been payable to the
                Employee
                but for his termination and assuming full achievement of the Bonus
                Criteria for such year, based on the number of days that the Employee
                remained in the employ of the Corporation during the year for which
                the
                Bonus is due;

            


    

    


    The
      payments provided in subsections (x), (y) and (z) above, shall be paid in a
      single lump sum in cash within thirty (30) days after the date of termination;
      provided, however, that if such termination is by the Employee for Good Reason,
      the payment provided in subsection (z) shall be paid in a single lump sum in
      cash six (6) months and one (1) day following such termination;
      and”

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    2. Section
      7.6(a)(ii) is hereby deleted and replaced with the following:

    


    “(ii)
      one
      (1) year of the Employee's Base Salary in effect immediately prior to the date
      of termination (”Severance Pay”). In the case of termination by the Employee for
      Good Reason, one-half of such Severance Pay shall be paid six months and one
      day
      following termination; and the remainder of such Severance Pay shall be paid
      in
      six equal monthly installments commencing with the seventh month following
      termination. In the case of termination of the Employee’s employment by the
      Corporation without Cause, the amount of such Severance Pay that does not exceed
      the Applicable Limit, shall be paid in equal monthly installments over the
      Severance Period (as defined in Section 7.6(b)). To the extent the Severance
      Pay
      exceeds the Applicable Limit, (A) one-half of the amount exceeding the
      Applicable Limit shall be paid six months and one-day after the date of
      termination, and (B) one-half of the amount exceeding the Applicable Limit
      shall
      be paid in six equal monthly installments commencing with the seventh month
      after the date of termination. The Applicable Limit is the amount which may
      not
      be exceeded as specified in Treas. Reg. 1-.409A-1(b)(iii)(A) (generally the
      lesser of $450,000 (for 2007) and two times Employee’s
      compensation).”

    


    3. Subsection
      (ii) of Section 7.6(b) is hereby deleted and replaced with the following:


    


    “(ii)
      receive a payment in cash following his termination without Cause or for Good
      Reason representing the value of such continued benefits, plus any income tax
      payable by the Employee on such value. The amount provided in subsection (ii)
      shall be paid (A) in a single lump sum payment within thirty (30) days of the
      date of termination if such termination is by the Corporation without Cause,
      and
      (B) in a single lump sum payment six months and one day following the date
      of
      termination if such termination is by the Employee for Good
      Reason.”

    


    4. Section
      7.7 is amended by deleting the phrase “the Severance Pay shall be payable in a
      lump sum in cash within thirty (30) days after the of the date of such
      termination,” and replacing it with “the Severance Pay shall be payable in a
      lump sum in cash six months and one day after the date of such
      termination.”

    


    5. Section
      12.8 is added to the agreement as follows:

    


    12.8 Section
      409A Option Agreement.
      Notwithstanding anything contained herein to the contrary, in the event of
      a
      conflict between this Agreement and the Section 409A Non-Qualified Stock Option
      Agreement dated February
      8, 2006, as amended (the “409A Agreement”), with respect to the exercise
      of options covered thereunder (including the period during which they may be
      exercised), the provisions of the 409A Agreement shall control.

    


    6. 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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    7. 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/
                  Ron J. Spivey

              

            
	 	 	
              Ron
                J. Spivey

            


    

     

    
      
        
        

      

      
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