As filed with the Securities and Exchange Commission on July 29, 2014
Registration Statement No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ELITE PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
| Nevada | 22-3542636 |
| (State or other jurisdiction of incorporation or organization) | (IRS Employer Identification No.) |
| 165 Ludlow Avenue, Northvale, NJ | 07647 |
| (Address of Principal Executive Offices) | (Zip Code) |
| Elite Pharmaceuticals, Inc. 2014 Equity Incentive Plan |
| (Full title of the plan) |
| Nasrat Hakim |
| Chief Executive Officer |
| 165 Ludlow Avenue |
| Northvale, NJ 07647 |
| (Name and address of agent for service) |
| 201-750-2646 |
| (Telephone number, including area code, of agent for service) |
Copies to:
Richard Feiner, Esq
381 Park Avenue South, 16th Floor
New York, NY 10016
212-779-8600
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ¨ | Accelerated filer ¨ | |
| Non-accelerated filer ¨ (Do not check if a smaller reporting company) | Smaller reporting Company x |
CALCULATION OF REGISTRATION FEE
| Title of securities to be registered | Amount to be registered(1) | Proposed maximum offering price per share | Proposed maximum aggregate offering price | Amount of registration fee | ||||||||||||
| Common Stock, no par value | 3,000,000 | (2) | $ | 0.36 | (3) | $ | 1,080,000 | (3) | $ | 139.11 | ||||||
| (1) | Pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of common stock, $0.001 par value per share (“Common Stock”), of the Registrant, which become issuable under the Elite Pharmaceuticals, Inc. 2014 Equity Incentive Plan (the “2014 Equity Incentive Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration by the Registrant and which results in an increase in the number of its outstanding shares of Common Stock. |
| (2) | Represents shares issuable upon the exercise of Options, Stock Appreciation Rights, unrestricted Stock, Restricted Stock, Performance Shares, or Performance Units and other stock-based awards granted or to be granted under the 2014 Equity Incentive Plan. |
| (3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act and based upon the average of the high and low price of a share of the Registrant’s Common Stock as reported by the OTC Bulletin Board on July 23, 2014. |
|
|
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Elite Pharmaceuticals, Inc. (the “Company”), prepared this Registration Statement in accordance with the requirements of Form S-8 under the Securities Act of 1933, as amended (the “Securities Act”), to register an aggregate of 3,000,000 shares of the Company’s common stock, $0.001 par value per share (the “Common Stock”), that may be issued pursuant to the Elite Pharmaceuticals, Inc. 2014 Equity Incentive Plan (the “2014 Equity Incentive Plan”). The documents containing the information specified in Part I of this Registration Statement will be sent or given to participants in the 2014 Equity Incentive Plan, as specified by Rule 428(b)(1) promulgated under the Securities Act. Such documents need not be filed with the Securities and Exchange Commission (the “Commission”), either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 promulgated under the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirement of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Commission allows the Company to “incorporate by reference” the information the Company files with it, which means that the Company can disclose important information to you by referring you to those documents. The Company has previously filed the following documents with the Commission and is incorporating them by reference into this Registration Statement:
| · | The Annual Report on Form 10-K for the fiscal year ended March 31, 2014, filed with the Commission on June 30, 2014; and |
| · | The description of our common stock contained in our registration statement on Form 8-A filed with the SEC on February 16, 2000. |
All documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities covered hereby then remaining unsold, are incorporated by reference in this Registration Statement and are a part hereof from the date of filing of such documents. The information contained in any such documents will automatically update and supersede any information previously incorporated by reference into this Registration Statement. Any such information so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Our directors and officers are indemnified by our articles of incorporation and bylaws to the fullest extent legally permissible under the laws of Nevada against all expenses, liability and loss, reasonably incurred by them in connection with the defense of any action, suit or proceeding in which they are a party by reason of being or having been directors or officers of the Company. Unless our Board determines by a majority vote of a quorum of disinterested directors that, based upon the facts known, such person acted in bad faith and in a manner that such person did not believe to be in or not opposed to our best interest (or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe his conduct was unlawful), costs, charges and expenses (including attorneys' fees) incurred by such person in defending a civil or criminal proceeding shall be paid by the Company in advance upon receipt of an undertaking to repay all amounts advanced if it is ultimately determined that the person is not entitled to be indemnified by the Company as authorized by the bylaws, and upon satisfaction of other conditions required by current or future legislation. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to such directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities, other than the payment by us of expenses incurred or paid by such director, officer or controlling person in the successful defense of any action, suit or proceeding, is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
| Exhibit No. | Description of Document | |
| 3.1(a) | Articles of Incorporation of Elite-Nevada, incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with the SEC on January 9, 2012. | |
| 3.1(b) | Certificate of Designations of the Series G Convertible Preferred Stock as filed with the Secretary of State of the State of Nevada on April 18, 2013, incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K, dated April 18, 2013 and filed with the SEC on April 22, 2013. | |
| 3.1(c) | Certificate of Designations of the Series H Junior Participating Preferred Stock as filed with the Secretary of State of the State of Nevada on November 15, 2013, incorporated by reference to Exhibit 2 (contained in Exhibit 1) to the Registration Statement on Form 8-A filed with the SEC on November 15, 2013. | |
| 3.1(d) | Certificate of Designations of the Series I Convertible Preferred Stock as filed with the Secretary of State of the State of Nevada on February 6, 2014, incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K, dated February 6, 2013 and filed with the SEC on February 7, 2014. | |
| 3.2(a) | Amended and Restated By-Laws of Elite-Nevada, incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K dated March 17, 2014 and filed with the SEC on March 18, 2014. | |
| 4.5 | Elite Pharmaceuticals, Inc. 2014 Equity Incentive Plan, incorporated by reference to Appendix B to the Company’s Definitive Proxy Statement, filed with the SEC on April 3, 2014. | |
| 5.1 * | Opinion of Richard Feiner, Esq., counsel to the Registrant. | |
| 23.1 * | Consent of Richard Feiner, Esq. (included in Exhibit 5.1). | |
| 23.2 * | Consent of Demetrius Berkower LLC. | |
| 24.1 * | Power of Attorney (included on signature page of this Registration Statement). |
* Filed herewith
Item 9. Undertakings.
| (a) | The undersigned Registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low and high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this registration statement; |
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if this Registration Statement and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
| (2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (b) | The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Northvale, State of New Jersey, on this 28 day of July, 2014.
| ELITE PHARMACEUTICALS, INC. | ||
| By: | s/ Nasrat Hakim | |
| Nasrat Hakim | ||
| Chief Executive Officer | ||
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Nasrat Hakim and Carter Ward, or either one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign this Registration Statement and any and all amendments and documents related thereto, and to file the same and any and all exhibits, financial statements and schedules related thereto, and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and substitute or substitutes, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all things that said attorneys-in-fact and agents, or any of them or his or their substitute or substitutes, may lawfully do and seek to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
| Signature | Title | Date | ||
| s/ Nasrat Hakim | Chief Executive Officer | |||
| Nasrat Hakim | (Principal Executive) and Director | July 28, 2014 | ||
| s/ Carter Ward | Chief Financial Officer (Principal Financial Officer), | |||
| Carter Ward | Treasurer, Secretary and Chief Accounting Officer | July 28, 2014 | ||
| s/ Barry Dash | Director | |||
| Barry Dash | July 28, 2014 | |||
| s/ Jerry Treppel | Director | |||
| Jerry Treppel | July 28, 2014 | |||
| s/ Jeenarine Narine | Director | |||
| Jeenarine Narine | July 28, 2014 | |||
| Director | ||||
| Ashok Nigalaye | ||||
| s/ Jeffrey Whitnell | Director | |||
| Jeffrey Whitnell | July 28, 2014 |
EXHIBIT INDEX
| Exhibit No. | Description of Document | |
| 5.1 * | Opinion of Richard Feiner, Esq., counsel to the Registrant. | |
| 23.1 * | Consent of Richard Feiner, Esq. (included in Exhibit 5.1). | |
| 23.2 * | Consent of Demetrius Berkower LLC. | |
| 24.1 * | Power of Attorney (included on signature page of this Registration Statement). |
* Filed herewith