VOTING AGREEMENT
This
VOTING
AGREEMENT
(this
"Agreement")
dated
as of December 22, 2005, is between Acura Pharmaceuticals, Inc, a New York
corporation, having an office at 000 X. Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX
00000 (the “Company”) and GCE Holdings, LLC, a Delaware limited liability
company, having an office at c/o Xxxxx Partners III, LP, 000 0xx
Xxxxxx,
0xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the “GCE Holdings”). The Company and GCE Holdings are
referred to individually as a “Party” and collectively as the
“Parties.”
WHEREAS,
the
Board of Directors of the Company has approved the Company’s 2005 Restricted
Stock Unit Award Plan providing for the grant of restricted stock unit awards
(“RSU Awards”) to select employees of the Company on such terms as the Board
shall determine; and
WHEREAS,
the
Board of Directors has approved RSU Awards to certain Company’s employees which,
subject to the terms of the RSU Awards, provide for the issuance of up to
27,500,000 shares of the Company’s common stock, $0.01 par value per share (the
“Common Stock”); and
WHEREAS,
the
Company will amend its 1998 Stock Option Plan to comply with the requirements
of
Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”)
and will present the 1998 Stock Option Plan, as amended to comply with Section
409A, to the Board for approval (as so amended, the “Amended 1998 Stock Option
Plan”); and
WHEREAS,
the
Company will present to its shareholders at the Company’s 2006 Annual Meeting of
Shareholders each of the RSU Plan and the Amended Plan 1998 Stock Option Plan
for shareholder ratification; and
WHEREAS,
GCE
Holdings desires to commit to vote its shares of the Company’s Common Stock so
as to ratify each of the RSU Plan and the Amended 1998 Stock Option
Plan.
NOW,
THEREFORE,
in
consideration of the foregoing and the mutual agreements herein contained,
the
Parties agrees as follows:
1. Ratification
of the RSU Plan and the Amended 1998 Stock Option Plan.
At the
Company's next upcoming meeting of shareholders, GCE Holdings will vote all
of
its shares of Common Stock in favor of the ratification of each of the RSU
Plan
and the Amended 1998 Stock Option Plan, as each such plan may be amended by
the
Company’s Board of Directors prior to the date of such meeting of shareholders.
2. Certain
Remedies.
Without
intending to limit the remedies available to either of the Parties, each Party
agrees that damages at law will be an insufficient remedy in the event such
Party violates the terms hereof or the powers granted hereunder and each of
the
Parties hereto further agrees that each of the other Parties hereto may apply
for and have injunctive or other equitable relief in any court of competent
jurisdiction to restrain the breach or threatened breach of, or otherwise
specifically to enforce, any of such Party's agreements or the powers granted
hereunder set forth herein.
3. Representations.
Each
Party represents and warrants to each other Party that this Agreement is its
legal, valid and binding obligation, enforceable against such Party in
accordance with its terms, and will not result in any (a) violation or breach
of, or be in conflict with, each Party's respective organizational documents
or
material contracts, or (b) violation of any statutes, laws, rules, regulations,
orders or judgments applicable to such Party.
4. Transfer
of Securities.
Nothing
shall prohibit or in any manner restrict GCE Holdings’ ability to freely
transfer, assign, convey, or otherwise dispose of or convert its shares of
Common Stock; provided,
that
upon the transfer, assignment, conveyance or disposition of any Common Stock
by
GCE Holdings, GCE Holdings shall cause the transferee to which the Common Stock
are transferred, assigned, conveyed or otherwise disposed to agree to be bound
by the terms hereof.
5. Term.
This
Agreement and the Parties' obligations hereunder shall continue in effect until
the completion of the Company’s next annual meeting of shareholders at which
each of the RSU Plan and the Amended 1998 Stock Option Plan are presented for
ratification.
6. Amendment.
Any
term of this Agreement or the powers granted hereunder may be amended and the
observance of any such term or power may be waived (either generally or in
a
particular instance and either retroactively or prospectively) only with the
written consent of the Parties.
7. Binding
Effect.
This
Agreement and the powers granted hereunder shall be binding upon, and shall
inure to the benefit of the Company and GCE Holdings.
8. Notices.
All
notices, demands or other communications given hereunder shall be in writing
and
shall be sufficiently given if transmitted by facsimile or delivered either
personally or by a nationally recognized courier service marked for next
business day delivery or sent in a sealed envelope by first class mail, postage
prepaid and either registered or certified, return receipt requested, to the
address for each Party as provided in the introductory paragraph of this
Agreement, or to such other address as any such Party shall designate in
writing. Any such notice, demand or communication shall be deemed to have been
given (a) on the date of delivery, if delivered personally, (b) on the date
of
facsimile transmission, receipt confirmed, (c) one business day after delivery
to a nationally recognized overnight courier service, if marked for next day
delivery or (d) five business days after the date of mailing, if
mailed.
9. Miscellaneous.
The
section headings herein are inserted for convenience of reference only and
shall
not affect the meaning or interpretation hereof. This Agreement and the powers
granted hereunder contain the entire agreement among the Parties hereto with
respect to the matters contemplated herein. If for any reason any provision
hereof shall be invalid, unenforceable or inoperative, the validity and effect
of the other provisions hereof shall not be affected herein. This Agreement
may
be executed in one or more counterparts, and by the Parties hereto in separate
counterparts, each of which, when so executed and delivered, shall be deemed
to
be an original but all of which taken together shall constitute one and the
same
agreement. This Agreement shall become effective as to each signatory hereto
upon the execution and delivery hereof by such signatory. This Agreement and
the
powers granted hereunder shall be governed in all respects by the laws of the
State of New York wherein the terms of this Agreement were negotiated, excluding
to the greatest extent permitted by law any rule of law that would cause the
application of the laws of any jurisdiction other than the State of New
York.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF,
each of
the Parties hereto has executed this Agreement on the date first above
written.
ACURA PHARMACEUTICALS, INC. | ||
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By: | /s/ Xxxxxx Xxxxxxx 12/22/05 | |
Name: Xxxxxx Xxxxxxx |
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Title: President and Chief Executive Officer |
GCE Holdings, LLC | ||
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By: | /s/ Xxxxx X. Xxxxxx | |
Name: Xxxxx X. Xxxxxx |
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Title: |