Having been a long
time shareholder and close follower of Elite, it is an honor to be writing my first letter to our shareholders as Elite’s
President and Chief Executive Officer. As steward of your Company, my primary focus has been to achieve long-term company growth
through prudent execution of strong and effective business strategies. My plans for Elite when I became President and CEO last
August were 1) to grow our generic pharmaceutical business and 2) to move forward with urgency to develop and commercialize Elite’s
proprietary opioid abuse deterrent products. Since August, we have successfully been executing this plan.
Elite’s generic
business segment was enhanced this year by the acquisition of twelve approved generic products and then by the launch of two additional
generic products. The newly acquired products have in turn been licensed out for upfront money and an attractive profit sharing
arrangement. A site transfer has already been filed with the U.S. Food and Drug Administration (FDA) for the first of these new
products, and the transfer of the other eleven products is on track. These additions to the generic business have greatly strengthened
the profitability of this segment of Elite’s business. I expect the rapid growth of the generics to continue as the current
commercial products grow and the twelve new products are launched.
The really significant
change for Elite this year, however, was the accelerated development of the opioid abuse deterrent products. It is these products
where I see a tremendous upside potential to create value for you, our shareholders. We have two opioid abuse deterrent products,
ELI-200 and ELI-201, in human trials and an additional five abuse deterrent formulations under active development. We are very
pleased with the success of the product trials in recent months. The ELI-201 pilot study showed that more than one of Elite’s
formulations was bioequivalent to the brand product, and the ELI-200 pivotal study demonstrated bioequivalence of Elite’s
product to the reference product. We expect to file our first abuse deterrent New Drug Application (NDA) with the FDA this year
and we then expect to file additional NDAs the following year. We have also received further protection for these abuse deterrent
products with the issuance of two patents, an additional patent allowed in the U.S. and the issuance of one Canadian patent in
recent months. We have additional patents filed and pending in the U.S., Canada and Europe. Elite’s technology can be applied
to any of the current opioids in the market place, and our goal is to broadly use our technology to reduce the current epidemic
of prescription drug abuse.
165 Ludlow Avenue
• Northvale, NJ 07647 • Ph: (201)750-2646 • Fax: (201)750-2755 www.elitepharma.com
To permit Elite to
execute on our initiatives, I am asking in this proxy for an increase in authorized shares. These additional shares will allow
Elite to continue to fund development of our abuse deterrent products, and will give us flexibility to launch our first abuse deterrent
product on our own, if we believe that to be in the best interest of the company and its shareholders. I am also actively pursuing
partnership opportunities for our abuse deterrent products, but the further we can develop a product, the more favorable terms
I expect to receive for the product(s). Additional authorized shares will provide options and flexibility to Elite in order to
unlock the value of our assets.
Please remember that
as a shareholder, your vote is extremely important to the Company no matter how many shares you own. For certain very important
resolutions, failure to vote or specifically direct your broker to vote, would be considered the same as a “NO” vote.
Please take a few moments to vote whether or not you plan to attend the Annual Meeting. You can vote by completing, signing, dating
and promptly returning the enclosed proxy card. Alternatively, you may vote through the Internet or by telephone as directed on
your proxy card. If you receive more than one proxy card because you own shares that are registered differently, please vote all
of the shares shown on all of your proxy cards.
If you have any questions
or need assistance voting your shares, please call our proxy solicitor, Morrow and Co toll free at 855-251-9340 or Dianne Will,
Investor Relations for Elite Pharmaceuticals at 518-398-6222.
I thank each of you
for your tremendous support during this year, and we look forward to continued success.
165 Ludlow Avenue • Northvale, NJ
07647 • Ph: (201)750-2646 • Fax: (201)750-2755 www.elitepharma.com
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
To Be Held
May 21, 2014
TO THE SHAREHOLDERS OF ELITE PHARMACEUTICALS, INC.:
NOTICE IS HEREBY GIVEN that the 2014
Annual Meeting of Shareholders (the “Annual Meeting”) of Elite Pharmaceuticals, Inc., a Nevada corporation
(“we,” “us,” “our,” the “Company” or “Elite”) will be held at the
Residence Inn by Marriott located at 206 Route 303, Orangeburg, New York 10962 on May 21, 2014, at 10:30 a.m., local
time for the following purposes:
|
(1)
|
To elect six directors;
|
|
(2)
|
To amend and restate our Articles of Incorporation to increase the number of shares of common stock
the Company is authorized to issue from 690,000,000 shares to 995,000,000 shares;
|
|
(3)
|
To ratify the appointment of Demetrius Berkower LLC as our independent registered public accounting
firm to audit our financial statements for the fiscal year ending March 31, 2014;
|
|
(4)
|
To approve, by non-binding vote, executive compensation;
|
|
(5)
|
To recommend, by non-binding vote, the frequency of executive compensation votes;
|
|
(6)
|
To approve the Elite Pharmaceuticals, Inc. 2014 Equity Incentive Plan; and
|
|
(7)
|
To transact such other business as may properly come before the Annual Meeting or any adjournments
or postponement thereof.
|
Our Board of Directors has fixed the close
of business on March 28, 2014 as the record date for the determination of the Shareholders entitled to notice of, and to vote at,
the Annual Meeting.
YOUR VOTE IS IMPORTANT.
FOR CERTAIN
VERY IMPORTANT RESOLUTIONS, FAILURE TO VOTE WOULD BE CONSIDERED THE SAME AS A “
NO
” VOTE
.
To ensure
that your vote is recorded promptly, please vote as soon as possible, even if you plan to attend the Annual Meeting. Most Shareholders
have three options for submitting their vote: (i) via the Internet, (ii) by phone, or (iii) by mail. For further details, see
“Revocability of Proxies, Voting and Solicitation,” below.
If you have Internet access,
we encourage
you to record your vote on the Internet
. It helps reduce the environmental impact of our annual meetings, it is convenient
and it saves us significant postage and processing costs. Please review the instructions on the proxy card or the information forwarded
by your bank, broker or other holder of record regarding each of these voting options.
|
By order of the Board of Directors
|
|
|
|
Date: April 3, 2014
|
By:
|
/s/ Nasrat Hakim
|
|
|
Nasrat Hakim
|
|
|
President and Chief Executive Officer
|
This Notice of Annual Meeting
and the attached Proxy Statement dated April 3, 2014 should be read in combination with the Company’s Annual Report on
Form 10-K for the fiscal year ended March 31, 2013 and Quarterly Report on Form 10-Q for quarter ended December 31, 2013.
Collectively, these documents contain all of the information and disclosures required in connection with the 2014 Annual
Meeting of Shareholders. Copies of all these materials can be found at:
http://www.elitepharma.com/annual_meeting.asp
|
ELITE PHARMACEUTICALS, INC.
165 Ludlow Avenue
Northvale, New Jersey 07647
PROXY STATEMENT
|
|
Important Notice Regarding the Availability
of Proxy Materials for the
2014 Annual Meeting of Shareholders to
be held on May 21, 2014:
This Proxy Statement,
the proxy card, our Annual Report on Form 10-K for the fiscal year ended March 31, 2013 and our Quarterly Report on Form 10-Q for
quarter ended December 31, 2013 (together, the “Proxy Materials”) are available on the internet at:
http://www.elitepharma.com/annual_meeting.asp
.
Please note that, while our proxy materials are available at this website, no other information contained on our website is incorporated
by reference in or considered to be a part of this Proxy Statement.
This Proxy Statement is
being furnished to Shareholders in connection with the 2014 Annual Meeting of Shareholders of Elite to be held on May 21,
2014 at 10:30 a.m. local time, at the Residence Inn by Marriott located at 206 Route 303, Orangeburg, New York 10962, and any
adjournment thereof (the “Annual Meeting”). This Proxy Materials are being mailed to Shareholders on or
about April 7, 2014.
Execution and return of the enclosed proxy
card is being solicited by and on behalf of the Board of Directors of the Company (the “Board of Directors”). The costs
incidental to soliciting and obtaining proxies, including the cost of reimbursing banks and brokers for forwarding proxy materials
to their principals, will be paid by us. Proxies may be solicited, without extra compensation, by our officers and employees, both
in person and by mail, telephone, facsimile and other methods of communication.
INFORMATION CONCERNING THE MEETING
INFORMATION CONCERNING SOLICITATION
AND VOTING
General
This Proxy Statement is furnished in connection
with the solicitation of proxies by the Board of Directors of Elite for our Annual Meeting of Shareholders to be held on May 21,
2014, and any adjournments thereof. You are receiving the Proxy Materials because you own shares of Common Stock or shares of Series
I Preferred Stock that entitle you to vote at the Annual Meeting. By use of the proxy, you can vote, whether or not you attend
the Annual Meeting. This Proxy Statement describes the matters we would like you to vote on and provides information on those matters
so you can make an informed decision.
The information included in this Proxy
Statement relates to the proposals to be voted on at the Annual Meeting, the voting process, the Company’s Board of Directors
and committees, the compensation of directors and certain executive officers and other required information.
Purpose
The purpose of the Annual Meeting is:
|
(1)
|
To elect six directors (”Proposal No. 1”);
|
|
(2)
|
To amend and restate our Articles of Incorporation to increase the number of shares of common stock
the Company is authorized to issue from 690,000,000 shares to 995,000,000 shares (”Proposal No. 2”);
|
|
(3)
|
To ratify the appointment of Demetrius Berkower LLC as our independent registered public accounting
firm to audit our financial statements for the fiscal year ending March 31, 2014 (”Proposal No. 3”);
|
|
(4)
|
To approve, by non-binding vote, executive compensation (“Proposal No. 4”);
|
|
(5)
|
To recommend, by non-binding vote, the frequency of executive compensation votes (“Proposal
No. 5”); and
|
|
(6)
|
Approve the Elite Pharmaceuticals, Inc. 2014 Equity Incentive Plan (“Proposal No. 6”).
|
Record Date and Voting Rights
The holders of our Common Stock and our
Series I Preferred Stock as of March 28, 2014 (the “Record Date”) are entitled to vote at the Annual Meeting. Each
share of Common Stock entitles the holder of record thereof at the close of business on the Record Date to one vote on each of
the matters to be voted upon at the Annual Meeting. Each share of Series I Preferred Stock entitles the holder of record thereof
to the number of votes equal to the number of shares of Common Stock into which such share of Series I Preferred Stock is convertible
as of the Record Date (1,428,571.4 per whole share), on each of the matters to be voted upon at the Annual Meeting. As of the Record
Date
, we had outstanding 560,142,420 shares of Common Stock (excluding 100,000 treasury shares), and 104.242 shares of Series
I Preferred Stock that were convertible into 148,917,143 shares of Common Stock.
Shareholders vote at the Annual Meeting
by casting ballots (in person or by proxy) which will be tabulated by a person who is appointed by the Board of Directors before
the Annual Meeting to serve as inspector of election at the Annual Meeting and who has executed and verified an oath of office.
Quorum; Abstentions; Broker Non-Votes;
Vote Required
A quorum must exist for the transaction
of business at the Annual Meeting (other than a motion to adjourn the Annual Meeting). The presence at the Annual Meeting, in person,
by remote communication or by proxy, of the holders of a majority of the shares of capital stock of Elite issued and outstanding
and entitled to vote at the Annual Meeting, will constitute a quorum for the transaction of business at the Annual Meeting. Abstentions
and broker “non-votes” (as discussed below) are counted as present and entitled to vote for purposes of determining
a quorum. If you submit a properly executed proxy card, even if you abstain from voting, your shares will be considered part of
the quorum.
Assuming that a quorum is present, the
six nominees in Proposal No. 1 receiving the highest number of votes cast by the holders of capital stock represented and voting
at the meeting will be elected as our Directors and constitute the entire Board of our Directors. There is no right to cumulate
votes in the election of directors. Abstentions and broker “non-votes” will not have an effect on the election of directors.
Assuming that a quorum is present, the
approval of Proposal No. 2 will require the affirmative vote of the holders of a majority of the voting power of the shares of
our capital stock outstanding as of the Record Date. If you abstain or do not instruct your broker how to vote with respect to
these proposals, your abstention or broker non-vote will have the same effect as a vote against these proposals.
Assuming that a quorum is present, the
approval of Proposals No. 3, 4 and 6 will require the affirmative vote of a majority of the total votes cast in person or by proxy.
Abstentions and broker “non-votes” with regard to any such proposal are not considered to have been voted on this proposal
and therefore will not have any effect on the vote for such proposals.
The frequency of the advisory vote on executive
compensation (Proposal No. 5) receiving the greatest number of votes (every one, two or three years) will be considered the frequency
recommended by Shareholders.
Solicitation
Solicitation of proxies may be made by
our directors, officers and regular employees by mail, telephone, facsimile transmission or other electronic media and in person
for which they will receive no additional compensation. The expenses of preparing, printing and assembling the materials used in
the solicitation of proxies on behalf of the Board of Directors will be borne by us. Upon request, we will reimburse the reasonable
fees and expenses of banks, brokers, custodians, nominees and fiduciaries for forwarding proxy materials to, and obtaining authority
to execute proxies from, beneficial owners for whose accounts they hold shares of Common Stock. We have hired the firm of Morrow
& Co. LLC to assist in the solicitation of proxies on behalf of the Board of Directors. Morrow & Co. has agreed to perform
this service for a proposed fee of $7,500.00 plus reasonable out-of-pocket disbursements.
Voting of Proxies
If the enclosed form of proxy is properly
signed and returned, the shares represented thereby will be voted as specified in the proxy
. If you do not specify in the proxy
how your shares are to be voted, the shares will be voted as recommended by the Board of Directors: FOR all directors in Proposal
No. 1 and FOR Proposals 2, 3, 4 and 6 and FOR the selection of “three years” on Proposal No. 5 recommending the frequency
of advisory votes on executive compensation
.
Voting of shares held in Brokerage Accounts
If you hold your shares at a brokerage
firm, you should instruct your broker how you would like to vote your shares by using the written instruction form and envelope
provided by your broker. If you do not provide your broker with instructions, your broker may, but is not required to, vote your
common shares with respect to certain “routine” matters. However, on other matters, when the broker has not received
voting instructions from its customers, the broker cannot vote the shares on the matter and a “broker non-vote” occurs.
Proposal No. 4 is the only routine matter to be voted on by the Shareholders on this year’s ballot. The rest of the Proposals
are not considered routine matters. This means that brokers may not vote your common shares on such proposals if you have not given
your broker specific instructions as to how to vote. Please be sure to give specific voting instructions to your broker so that
your vote can be counted. If you hold your common shares in your broker’s name and wish to vote in person at the annual meeting,
you must contact your broker and request a document called a “legal proxy.” You must bring this legal proxy to the
annual meeting in order to vote in person.
Revocation
You have the right to revoke your proxy
at any time before it is voted by attending the Annual Meeting and voting in person or by filing with our Secretary either a written
instrument revoking the proxy or another executed proxy bearing a later date. Shareholders entitled to vote will not have any appraisal
rights in connection with any of the proposals to be voted on at the Annual Meeting.
Recommendations of the Board of Directors
This proxy solicitation is being made by
the Company. The Board of Directors recommends a vote:
|
·
|
FOR
the six directors listed in the proxy to hold office until the 2015 Annual Meeting of
Shareholders and until their respective successors are duly elected and qualified (
Proposal No. 1
);
|
|
·
|
FOR
Proposal No. 2 -
the amendment and restatement of our Articles of Incorporation
to increase the number of shares of common stock the Company is authorized to issue from 690,000,000 shares to 995,000,000 shares;
|
|
·
|
FOR
Proposal No. 3 -
the ratification of the appointment of Demetrius Berkower, LLC
(“Demetrius”) as our registered public accounting firm to audit our financial statements for the fiscal year ending
March 31, 2014;
|
|
·
|
FOR
Proposal No. 4
– the advisory (non-binding) vote approving executive compensation;
|
|
·
|
FOR
the selection of “three years” on
Proposal No. 5
recommending the
frequency of advisory votes on executive compensation; and
|
|
·
|
FOR Proposal No.
6 –
the approval of the Elite Pharmaceuticals, Inc. 2014 Equity
Incentive Plan.
|
Should any nominee named in Proposal No.
1 be unable to serve or for good cause will not serve as director, the persons named in the enclosed form of p
r
oxy will
vote for such other person as the Board of Directors may recommend.
Other Business
As of the date of this Proxy Statement,
we have no knowledge of any business other than that described in the Notice of Annual Meeting that will be presented for consideration
at the Annual Meeting. If any other business should properly come before the Annual Meeting, the persons appointed by the enclosed
form of proxy shall have discretionary authority to vote all such proxies as they shall decide.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The following table sets forth certain
information, as of the Record Date, March 28, 2014 (except as otherwise indicated), regarding beneficial ownership of our Common
Stock and our Series I Preferred Stock by (i) each person who is known by us to own beneficially more than 5% of each such class,
(ii) each of our directors and nominees for director, (iii) each of our executive officers and (iv) all our directors and executive
officers as a group. On the Record Date, we had 560,142,420 shares of Common Stock outstanding (exclusive of 100,000 treasury shares)
and 104.242 shares of Series I Preferred Stock outstanding. On any matter presented to the holders of our Common Stock for their
action or consideration at any meeting of our Shareholders, each share of Common Stock entitles the holder to one vote and each
share of Series I Preferred Stock entitles the holder to the number of votes equal to the number of shares of Common Stock into
which such share of Series I Preferred Stock is convertible (1,428,571.4 per whole share).
As used in the table below and elsewhere
in this Proxy Statement, the term beneficial ownership with respect to a security consists of sole or shared voting power, including
the power to vote or direct the vote, and/or sole or shared investment power, including the power to dispose or direct the disposition,
with respect to the security through any contract, arrangement, understanding, relationship, or otherwise, including a right to
acquire such power(s) during the 60 days immediately following March 28, 2014. Except as otherwise indicated, the Shareholders
listed in the table have sole voting and investment powers with respect to the shares indicated.
|
|
Amount
|
|
|
|
|
|
|
and
|
|
|
Percent (%)
|
|
|
|
Nature of
|
|
|
of Voting
|
|
Name and Address
|
|
Beneficial Ownership
|
|
|
Securities
|
|
Of
|
|
|
|
|
Series I
|
|
|
Beneficially
|
|
Beneficial Owner of Common Stock
|
|
Common Stock
|
|
|
Preferred Stock
|
|
|
Owned
|
|
Nasrat Hakim, President Chief Executive Officer and Director*
|
|
|
13,943,608
|
(1)
|
|
|
100.000
|
|
|
|
22
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Barry Dash, Director*
|
|
|
1,158,686
|
(2)
|
|
|
0
|
|
|
|
**
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jerry Treppel, Chairman of the Board *
|
|
|
3,226,227
|
(3)
|
|
|
4.242
|
|
|
|
1
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ashok G. Nigalaye, Chief Scientific Officer and Director *
|
|
|
160,896,964
|
(4)(5)
|
|
|
0
|
|
|
|
12
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jeenarine Narine, Director *
|
|
|
151,609,231
|
(4)(6)
|
|
|
0
|
|
|
|
10
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jeffrey Whitnell, Director *
|
|
|
990,511
|
(7)
|
|
|
0
|
|
|
|
**
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carter J. Ward, Chief Financial Officer *
|
|
|
3,166,932
|
(8)
|
|
|
0
|
|
|
|
**
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Epic Investments LLC
227-15 North Conduit Ave.
Laurelton, NY 11413
|
|
|
140,850,897
|
(4)
|
|
|
0
|
|
|
|
10
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Directors and Officers as a group
|
|
|
194,141,263
|
(9)
|
|
|
104.242
|
|
|
|
37
|
%
|
* The address is c/o Elite Pharmaceuticals
Inc., 165 Ludlow Avenue, Northvale, NJ 07647.
** Less than 1%
|
(1)
|
Includes 13,714,141 shares of Common Stock, and 229,467 shares of Common Stock accrued (but not
issued) and owed to Mr. Hakim as of the Record Date, pursuant to his employment agreement with the Company.
|
|
(2)
|
Includes 1,013,331 shares of Common Stock, options to purchase 120,000 shares of Common Stock,
warrants to purchase 12,243 shares of Common Stock and 13,112 shares of Common Stock for Board of Directors fees accrued (but not
issued) and owed to Dr. Dash as of the Record Date.
|
|
(3)
|
Includes 2,831,558 shares of Common Stock, warrants to purchase up to 375,000 of Common Stock,
and 19,669 shares of Common Stock for Chairman of the Board Directors fees accrued (but not issued) and owed to Mr. Treppel as
of the Record Date.
|
|
(4)
|
Includes 67,669,232 shares of Common Stock and warrants to purchase 73,181,665 shares of Common
Stock held by Epic Investments, LLC. Messrs. Nigalaye and Narine are executive officers and equity owners of Epic Pharma, LLC and
Epic Investments, LLC. Epic Pharma, LLC is an equity owner of Epic Investments, LLC. Epic Pharma LLC and Messrs. Nigalaye and Narine
share voting and investment control over, and are indirect beneficial owners of, the shares. The interest of Epic Pharma LLC and
Messrs. Nigalaye, Narine and Potti in the shares is limited, and each disclaims beneficial ownership of such shares except to the
extent of his pecuniary interest in Epic Investments, LLC.
|
|
(5)
|
Includes 14,275,289 shares of Common Stock, warrants to purchase 5,757,666 shares of Common Stock,
and 13,112 shares of Common Stock for Board of Directors fees accrued (but not issued) and owed to Dr. Nigalaye as of the Record
Date.
|
|
(6)
|
Includes 5,987,556 shares of Common Stock, warrants to purchase 4,757,666 shares of Common Stock,
and 13,112 shares of Common Stock for Board of Directors fees accrued (but not issued) and owed to Mr. Narine as of the Record
Date.
|
|
(7)
|
Includes 977,399 shares of common stock and 13,112 shares of Common Stock for Board of Directors
fees accrued (but not issued) and owed to Mr. Whitnell as of the Record Date.
|
|
(8)
|
Includes 2,230,596 shares of Common Stock, options to purchase 250,000 shares of Common Stock,
warrants to purchase 666,667 shares of Common Stock and 19,669 shares of Common Stock accrued (but not issued) and owed to Mr.
Ward as of the Record Date pursuant to his employment agreement with the Company.
|
|
(9)
|
Includes 108,699,102 shares of Common Stock, warrants to purchase 84,750,908 shares of Common Stock,
options to purchase 370,000 shares of Common Stock and 321,254 shares of Common Stock accrued (but not issued) and owing as of
the Record Date for payment of Chairman’s Fees, Directors Fees in accordance with the Company’s policy regarding compensation
of the Chairman and Director, and for payment of salaries pursuant to applicable employment agreements for the Company’s
Chief Executive Officer and Chief Financial Officer.
|
Changes in Control
The following information is provided with
respect to any arrangements known to the Company the operation of which may at a subsequent date result in a change of control
of the Company. As of the Record Date, Nasrat Hakim beneficially owns approximately 22
% of our voting equity (calculated
in accordance with Rule 13d-3 of the Securities Exchange Act of 1934). As of the Record Date, Epic Investments beneficially owns
approximately 10% of our voting equity (calculated in accordance with Rule 13d-3 of the Exchange Act).
PROPOSAL NO. 1
ELECTION OF SIX DIRECTORS
THE BOARD OF DIRECTORS RECOMMENDS A VOTE
“FOR”
THE ELECTION OF EACH OF THE NOMINEES
LISTED BELOW.
Section 3.03 of our amended and restated
bylaws our Board of Directors is now classified into three separate classes of directors, as nearly equal in number as possible,
with each respective class to serve a three-year term and until their successors are duly elected and qualified (the “Board
Classification”). The Annual Meeting is the first election of directors after adoption of the Board Classification, and as
a result, at the Annual Meeting (A) two Class I directors will be elected to an initial one-year term expiring at the 2015 annual
meeting and until their respective successors are elected and qualified, (B) two Class II directors will be elected to an initial
two-year term expiring at the 2016 annual meeting and until their respective successors are elected and qualified and (C) two Class
III directors will be elected to an initial three-year term expiring at the 2017 annual meeting and until their respective successors
are elected and qualified. At each annual meeting commencing with the 2015 annual meeting, directors will be elected to succeed
those directors whose terms then expire, with each person so elected to serve for a three-year term and until his or her respective
successor is elected and qualified.
Nominations for Director
At the Annual Meeting, six directors are
to be elected.
Our Board has nominated for election the
following six current members of the Board of Directors, each to serve in the respective Class indicated for a term to expire at
the annual meeting to be held in the respective year indicated, and until his or her respective successor is elected and qualified:
Class I (term expiring
2015): Barry Dash, Ph.D and Jeenarine Narine
Class II (term expiring
2016): Jerry Treppel and Ashok Nigalaye, Ph.D.
Class III (term expiring
2017): Nasrat Hakim and Jeffrey Whitnell
Vote Required
Directors will be elected by a plurality
of the votes of the shares present, in person or by proxy, at the Annual Meeting, entitled to vote at the Annual Meeting and voting
on the election of directors.
Information with Respect to Nominees.
The table below sets forth the name and current age of each nominee, and the period during which he has served on our Board
of Directors.
Name
|
|
Age
|
|
Director Since
|
Nasrat Hakim
(1)
|
|
53
|
|
August 2013
|
Jerry Treppel
(2)
|
|
59
|
|
November 2008
|
Barry Dash, Ph. D.
|
|
82
|
|
April 2005
|
Ashok G. Nigalaye, Ph.D.
(3)
|
|
62
|
|
June 2009
|
Jeenarine Narine
|
|
63
|
|
June 2009
|
Jeffrey Whitnell
|
|
58
|
|
October 2009
|
|
(1)
|
Mr. Hakim also serves as our Chief Executive Officer and President since August 1, 2013.
|
|
(2)
|
Mr. Treppel has served as Chairman of the Board since November 6, 2008 and CEO from September 15,
2009 to July 31, 2013.
|
|
(3)
|
Dr. Nigalaye also serves as our Chief Scientific Officer since September 15, 2009.
|
We believe our Board
Members represent a desirable diversity of background, skills, education and experiences, and they all share the personal attributes
of dedication to be effective directors. In recommending Board candidates, our Nominating Committee considers a candidate's: (1)
general understanding of elements relevant to the success of a publicly traded company in the current business environment; (2)
understanding of our business; and (3) diversity in educational and professional background. The Nominating Committee also gives
consideration to a candidate's judgment, competence, dedication and anticipated participation in Board activities along with experience,
geographic location and special talents or personal attributes. The following are qualifications, experience and skills for Board
members which are important to Hemispherx's business and its future:
Leadership Experience
:
We seek directors who have demonstrated strong leadership qualities. Such leaders bring diverse perspectives and broad business
insight to our Company. The relevant leadership experience that we seek includes a past or current leadership role in a large or
entrepreneurial company, a senior faculty position at a prominent educational institution or a past elected or appointed senior
government position.
Industry Experience
:
The Committee seeks directors who have relevant industry experience, both with respect to oral controlled release products primarily
in the therapeutic areas of pain management, allergy, cardiovascular and infection, as well as with the economic and competitive
dynamics of pharmaceutical markets, including those in which the Company’s drugs will be prescribed.
Scientific, Academic or
Regulatory Experience
: Given the highly technical and specialized nature of pharmaceuticals, we desire that certain of
our directors have advanced degrees, as well as drug development experience. Since we are subject to substantial regulatory oversight
by the FDA and other agencies, we also desire directors who have legal or regulatory experience.
Finance Experience
:
We believe that our directors should possess an understanding of finance and related reporting processes, particularly given the
complex budgets and long timelines associated with drug development programs.
The principal occupations and employment
of each Director nominee during the past five years and the Board’s basis for believing that each nominee is qualified is
set forth below. In each instance in which dates are not provided in connection with a nominee’s business experience, such
nominee has held the position indicated for at least the past five years.
Biographical Information – Director
Nominees
Nasrat Hakim
Nasrat Hakim
has served as a Director,
President and Chief Executive officer since August 1, 2013. Mr. Hakim has more than 30 years of pharmaceutical and medical industry
experience in Quality Assurance, Analytical Research and Development, Technical Services and Regulatory Compliance. He brings with
him proven management experience, in-depth knowledge of manufacturing systems, development knowledge in immediate and extended
release formulations and extensive regulatory experience of GMP and FDA regulations. From 2004 - 2013, Mr. Hakim was employed by
Actavis, Watson and Alpharma in various senior management positions. Most recently, Mr. Hakim served as International Vice President
of Quality Assurance at Actavis, overseeing 25 sites with more than 3,000 employees under his leadership. Mr. Hakim also served
as Corporate Vice President of Technical Services, Quality and Regulatory Compliance for Actavis U.S., Global Vice President, Quality
and Regulatory Compliance for Alpharma, as well as Executive Director of Quality Unit at TheraTech, overseeing manufacturing and
research and development. In 2009, Mr. Hakim founded Mikah Pharma, LLC, a virtual, fully functional pharmaceutical company. Mr.
Hakim holds a Bachelor in Chemistry/Bio-Chemistry and Masters of Science in Chemistry from California State University at Sacramento,
Sacramento, CA; a Masters in Law with Graduate Certification in U.S. and International Taxation from St. Thomas University, School
of Law, Miami, FL.; and a Graduate Certification in Regulatory Affairs (RAC) from California State University at San Diego, San
Diego, CA.
NASRAT HAKIM
- Director
Qualifications:
|
•
|
Leadership Experience:
Extensive experience in senior management positions, responsible for 25 global manufacturing/regulatory
sites with more than 3,000 employees under his leadership.
|
|
•
|
Industry Experience
: More than 30 years of pharmaceutical and medical industry experience served in various quality
assurance, analytical research and development, technical services and regulatory compliance positions.
|
|
•
|
Academic Experience:
Bachelors degree in Chemistry/Bio-Chemistry, Masters of Science in Chemistry, Masters in Law with
Graduate Certification in U.S. and International Taxation and a Graduate Certification Regulatory Affairs.
|
Jerry Treppel
Jerry Treppel
has served as a Director
since October 28, 2008, Chairman of the Board since November 6, 2008 and Chief Executive Officer from September 15, 2009 to July
31, 2013. Mr. Treppel is currently a Managing Director of ArcLight Advisors, an investment bank specializing in the health care
sector. From October 2008 through March 2013, Mr. Treppel was Managing Director of Ledgemont Capital Group LLC, a boutique merchant
bank that provided access to capital and corporate advisory services to public and private companies. Additionally, he served as
the managing member of Wheaten Capital Management LLC, a capital management company focusing on investments in the health care
sector from 2003 to 2008.Over the past 20 years, Mr. Treppel was an equity research analyst focusing on the specialty pharmaceuticals
and generic drug sectors at several investment banking firms including Banc of America Securities, Warburg Dillon Read LLC (now
UBS), and Kidder, Peabody & Co. He previously served as a healthcare services analyst at various firms, including Merrill Lynch
& Co. He also held administrative positions in the healthcare services industry early in his career. From 2003 to 2009, Mr.
Treppel served as a member of the board of directors of Akorn, Incorporated (NASDAQ: AKRX), a specialty pharmaceutical company
engaged in the development, manufacturing and marketing of branded and multi-source pharmaceutical products and vaccines. Mr. Treppel
also served as the Chair of Akorn’s Nominating and Corporate Governance Committee and as a member of its Audit Committee
and Compensation Committee. Mr. Treppel holds a BA in Biology from Rutgers College in New Brunswick, N.J., an MHA in Health Administration
from Washington University in St. Louis, Mo., and an MBA in Finance from New York University. Mr. Treppel has been a Chartered
Financial Analyst (CFA) since 1988. Mr. Treppel’s knowledge of the pharmaceutical industry as well as his education credentials
and his experience as a member of the board of directors of Akorn, Incorporated led to the conclusion that he is qualified to serve
as a director.
JERRY TREPPEL
– Director Qualifications
|
·
|
Leadership Experience
: More than 10 years experience in Director, Managing Director and
Chief Executive Officer positions, leading companies engaged in pharmaceutical research and manufacturing, as well as investment
banks focusing on the healthcare sector.
|
|
·
|
Industry Experience
: Wall Street industry veteran and established equity research analyst
focusing on the specialty pharmaceuticals and generic drug sectors.
|
Barry Dash, Ph.D.
Dr. Barry Dash
has served as a Director
since April 2005, Member of the Audit Committee since April 2005, Member of the Nominating Committee since April 2005 and Member
and Chairman of the Compensation Committee since June 2007. Dr. Dash has been, since 1995, President and Managing Member of Dash
Associates, L.L.C., an independent consultant to the pharmaceutical and health industries. From 1983 to 1996 he was employed by
Whitehall-Robins Healthcare, a division of American Home Products Corporation (now known as Wyeth), initially as Vice President
of Scientific Affairs, then as Senior Vice President of Scientific Affairs and then as Senior Vice President of Advanced Technologies,
during which time he personally supervised six separate departments: Medical and Clinical Affairs, Regulatory Affairs, Technical
Affairs, Research and Development, Analytical R&D and Quality Management/Q.C. Dr. Dash had been employed by the Whitehall Robins
Healthcare from 1960 to 1976, during which time he served as Director of Product Development Research, Assistant Vice President
of Product Development and Vice President of Scientific Affairs. Dr. Dash had been employed by J.B. Williams Company (Nabisco Brands,
Inc.) from 1978 to 1982. From 1976 to 1978 he was Vice President and Director of Laboratories of the Consumer Products Division
of American Can Company. He currently serves on the board of directors of GeoPharma, Inc. (NASDQ: GORX). Dr. Dash holds a Ph.D.
from the University of Florida and M.S. and B.S. degrees from Columbia University where he was Assistant Professor at the College
of Pharmaceutical Sciences from 1956 to 1960. He is a member of the American Pharmaceutical Association, the American Association
for the Advancement of Science and the Society of Cosmetic Chemist, American Association of Pharmaceutical Scientists, Drug Information
Association, American Foundation for Pharmaceutical Education, and Diplomate American Board of Forensic Examiners. He is
the author of scientific publications and patents in the pharmaceutical field. Dr. Dash’s extensive education in pharmaceutical
sciences and his experience in the development of scientific products, including his experience in regulatory affairs, led to the
conclusion that he is qualified to serve as a director.
BARRY DASH, Ph.D.
– Director Qualifications
|
·
|
Industry Experience
: More than 30 years experience in Scientific, Medical and Clinical,
Regulatory, Research and Development, Quality Management positions in the pharmaceutical and health industries.
|
|
·
|
Academic Experience
: Ph.D, Masters and Bachelors degrees in Pharmacy. Author of scientific
publications and patents in the pharmaceutical field.
|
Ashok G. Nigalaye, Ph.D.
Dr. Ashok G. Nigalaye
has served
as a Director since June 24, 2009, member of the Compensation Committee since October 23, 2009 and Chief Scientific Officer since
September 15, 2009. Dr. Nigalaye was elected as a member of Elite’s Board in June 2009 as one of three directors designated
by Epic pursuant to the terms of the Epic Strategic Alliance Agreement. Since December 2010, Dr. Nigalaye has been the Chairman
and Chief Executive Officer of Epic Pharma, LLC, a manufacturer of generic pharmaceuticals and Elite’s strategic partner
pursuant to the Epic Strategic Alliance Agreement. From July 2008 to December 2010, Dr. Nigalaye served as Epic Pharma’s
President and Chief Executive Officer. From August 1993 to February 2008, Dr. Nigalaye served as Vice President of Scientific Affairs
and Operations of Actavis Totowa LLC, a manufacturer of generic pharmaceuticals, where he was responsible for directing and organizing
company activities relating to pharmaceutical drug manufacturing, regulatory affairs and research and development. Dr. Nigalaye
currently serves as a director of GTI Inc., a privately held company. Dr. Nigalaye holds a B.S. in Pharmacy from the University
of Bombay, an M.S. in Industrial Pharmacy from Long Island University, and a Ph.D. in Industrial Pharmacy from St. John’s
University. Dr. Nigalaye is also a licensed pharmacist in the State of New York. Dr. Nigalaye’s extensive education in pharmaceutical
sciences and experience as a director and officer of pharmaceutical companies led to the conclusion that he is qualified to serve
as a director.
ASHOK NIGALAYE,
Ph.D.
– Director Qualifications
|
·
|
Industry Experience
: More than 25 years experience in Scientific and Regulatory Affairs,
Pharmaceutical Research and Development, and Pharmaceutical Manufacturing Operations.
|
|
·
|
Scientific Experience
: Extensive experience in pharmaceutical sciences, formulation development
and research.
|
|
·
|
Academic Experience
: Ph.D in Industrial Pharmacy, Masters in Industrial Pharmacy, Bachelors
in Pharmacy and a licensed Pharmacist in New York State.
|
Jeenarine Narine
Jeenarine Narine
has served as a
Director since June 24, 2009 and member of the Nominating Committee since October 23, 2009. Mr. Narine was elected as a member
of Elite’s Board in June 2009 as one of three directors designated by Epic pursuant to the terms of the Epic Strategic Alliance
Agreement. Since December 2010, Mr. Narine has been the President and Chief Operating Officer of Epic Pharma, LLC, a manufacturer
of generic pharmaceuticals and Elite’s strategic partner pursuant to the Epic Strategic Alliance Agreement, in which capacity
he oversees all manufacturing operations. From July 2008 to December 2010, Mr. Narine served as Epic Pharma’s Executive Vice
President of Manufacturing and Operations. Mr. Narine is also the current President of Eniran Manufacturing Inc., a contract manufacturer
of dietary and nutritional supplements, and has held such office since 2000. In addition, Mr. Narine has been since 1989 the President
of A&J Machine Inc., a company owned by Mr. Narine that is engaged in the sales of new and used pharmaceutical manufacturing
equipment. In addition to this professional experience, Mr. Narine graduated from the Guyana Industrial Institute, where he studied
Metalology and Welding. Mr. Narine’s experience as the Executive Vice President of Manufacturing and Operations of Epic Pharma
LLC and his knowledge of pharmaceutical manufacturing equipment led to the conclusion that he is qualified to serve as a director.
JEENARINE NARINE
– Director Qualifications
|
·
|
Industry Experience
: Extensive experience overseeing large scale pharmaceutical manufacturing
entities, including all aspects of operations, facility maintenance and expansion, quality systems and supply chain.
|
Jeffrey Whitnell
Jeffrey Whitnell
has served as a
Director since October 23, 2009, Chairman of the Audit Committee since October 23, 2009, member of the Nominating Committee since
October 23, 2009, member of the Compensation Committee since October 23, 2009 and designated by the Board as an “audit committee
financial expert” as defined under applicable rules under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), since October 23, 2009. Since June 2010, Mr. Whitnell has been the Chief Financial Officer for Neurowave Medical
Technologies, a medical device company. From June 2009 to June 2010, Mr. Whitnell provided financial consulting services to various
healthcare companies, including Neurowave Medical Technologies. From June 2004 to June 2009, Mr. Whitnell was Chief Financial Officer
and Senior Vice President of Finance at Akorn, Inc. From June 2002 to June 2004, Mr. Whitnell was Vice President of Finance
and Treasurer for Ovation Pharmaceuticals. From 1997 to 2001, Mr. Whitnell was Vice President of Finance and Treasurer for
MediChem Research. Prior to 1997, Mr. Whitnell held various finance positions at Akzo Nobel and Motorola. Mr. Whitnell
began his career as an auditor with Arthur Andersen & Co. He is a certified public accountant and holds an M.B.A. in Finance
from the University of Chicago and a B.S. in Accounting from the University of Illinois. Mr. Whitnell’s qualifications
as an accounting and audit expert provide specific experience to serve as a director for the Company.
JEFFREY WHITNELL,
CPA
– Director Qualifications
|
·
|
Finance Experience
: Extensive experience in Chief Financial Officer and senior finance positions
at companies engaged in the development and manufacture of pharmaceuticals and medical devices, with initial career experience
as an auditor at Arthur Andersen & Co.
|
|
·
|
Academic Experience
: Certified Public Accountant, M.B.A. in Finance and Bachelors in Accounting
|
There are no family relationships between
any of our directors and executive officers.
OUR BOARD OF DIRECTORS RECOMMENDS A VOTE
“FOR” THE ELECTION OF EACH
OF THE FOREGOING NOMINEES TO OUR BOARD
OF DIRECTORS.
PROPOSAL NO. 2
approval
of amendment to our Articles of Incorporation
to
increase the number of shares of common stock the Company is authorized to issue from 690,000,000 shares to 995,000,000 shares
THE BOARD OF DIRECTORS RECOMMENDS A VOTE
“FOR” PROPOSAL NO. 2
Our Articles of Incorporation currently
authorizes us to issue up to 690,000,000 shares of Common Stock, $.001 par value, and 15,000 shares of Preferred Stock, $0.01 par
value. Our Board of Directors has unanimously adopted, subject to Shareholder approval, an amendment to our Articles of Incorporation
to increase the authorized number of shares of our Common Stock by 305,000,000 shares to 995,000,000 shares. Under the
amendment, Article IV, Section 4.1 of our Articles of Incorporation would read as follows:
“4.1. Authorized Capital Stock. The aggregate number of shares which this Corporation shall have authority
to issue is Nine Hundred Ninety Five Million Fifteen Thousand (995,015,000) shares, consisting of (a) Nine Hundred Ninety Five
Million, (995,000,000) shares of Common Stock, par value $0.001 per share (the “Common Stock”) and (b) Fifteen Thousand,
(15,000) shares of Preferred Stock, par value $0.01 per share (the “Preferred Stock”), issuable in one or more series
as hereinafter provided. A description of the classes of shares and a statement of the number of shares in each class and the relative
rights, voting power, and preferences granted to and restrictions imposed upon the shares of each class are as follows:”
The complete text of the proposed Amendment
to the Articles of Incorporation is attached as
Appendix A
to this Proxy Statement.
Background
We may issue shares of capital stock to
the extent such shares have been authorized under our Articles of Incorporation.
As of the Record Date, the total shares
of Common Stock issued and outstanding and reserved for issuance upon the exercise of outstanding warrants, options, and the conversion
of outstanding shares of preferred stock totaled 821,985,073 shares, including:
|
·
|
560,242,420 shares of Common Stock;
|
|
·
|
102,157,376 shares reserved for issuance pursuant to warrants to purchase Common Stock
|
|
·
|
1,895,666 shares reserved for issuance pursuant to options to purchase Common Stock;
|
|
·
|
148,917,143
shares reserved for issuance upon the conversion of shares of our outstanding series
of preferred stock;
|
|
·
|
5,772,468
shares reserved pursuant to the 2009 Equity Incentive Plan;
|
|
·
|
3,000,000
shares reserved pursuant to the 2014 Equity Incentive Plan.
|
As of the Record Date, the number of shares
of Common Stock we are required to issue under the derivative securities described above exceeds the number of shares of Common
Stock available for future issuances.
The terms of our 2009 Equity Incentive
Plan, the certificates of designation for the Series I Preferred Stock, the instruments governing the rights of option and warrant
holders and our Purchase Agreement with Lincoln Park Capital all provide that we will at all times reserve and keep available out
of our authorized and unissued shares of Common Stock for the sole purpose of issuance upon the conversion or exercise of such
securities not less than the aggregate number of shares of the Common Stock as shall from time to time be sufficient to effect
the conversion or exercise of all such outstanding securities. If at any time the number of authorized but unissued shares of Common
Stock is not sufficient to effect the conversion or exercise of such securities, we are required to take such corporate action
as may be necessary to increase our authorized but unissued shares of Common Stock to such number of shares as shall be sufficient
for such purposes, including, without limitation, using our best efforts to obtain the requisite shareholder approval of an amendment
to our Articles of Incorporation. The proposal to increase the number of shares of Common Stock we are authorized to issue is intended
to satisfy our obligations under these securities. In addition, our employment agreements with Nasrat Hakim, Carter J Ward and
other employees provide that we make certain payments to them in Common Stock as part of their compensation.
In addition, we anticipate that we may issue additional shares
in connection with one or more of the following:
|
·
|
financing transactions, such as private and/or public offerings of Common Stock or convertible securities to fund business and business expansion;
|
|
·
|
corporate transactions, such as stock splits or stock dividends;
|
|
·
|
Incentive and employee benefit plans; and
|
|
·
|
otherwise for corporate purposes that have not yet been identified.
|
No Other Current Plans for Issuance
of Newly Authorized Shares
Except, as described above, we have no current plans to issue any of the shares
that would be authorized should this Proposal No. 3 be approved by our Shareholders for the potential purposes discussed below.
Our Board of Directors believes that the lack of additional authorized shares of Common Stock available for issuance will restrict
our flexibility to act in a timely manner in meeting future capital needs.
In order to provide our Board of Directors
with certainty and flexibility to meet such needs, the Board of Directors believes it is in the best interests of our Company at
this time to increase the number of authorized shares of our Common Stock beyond that required to permit the conversion or exercise
of derivative securities.
If this proposal is not adopted, management
believes we will be severely limited in our ability to raise capital, enter transactions that could be advantageous to the Company
or issue stock as required under outstanding derivative securities. Further, if we are unsuccessful in gaining approval
for this increase in our authorized shares, and other funding sources are not available to us, our ability to pursue development
and commercialization activities may be limited or delayed.
If our Shareholders approve the amendment
to our Articles of Incorporation to increase our authorized shares, we will have 173,014,927 shares of Common Stock not reserved
for any specific use and available for future issuances.
If this proposal is adopted, the additional
authorized shares of Common Stock may be issued upon the approval of our Board of Directors at such times, in such amounts, and
upon such terms as our Board of Directors may determine, without further approval of the Shareholders, unless such approval is
expressly required by applicable law, regulatory agencies, or any exchange or quotation service on which our Common Stock may then
be listed. The ability of our Board of Directors to issue shares from the additional authorized shares will allow the Board, except
under limited circumstances, to perform the functions for which they are currently empowered under our Articles of Incorporation
and By-Laws in executing certain transactions, such as acquisitions, investments, or other transactions, pursuant to which such
additional authorized shares could be issued without further Shareholder approval of the specific transaction.
Our Shareholders do not have preemptive
rights with respect to future issuances of additional shares of Common Stock, which means that current Shareholders do not have
a prior right to purchase any new issue of Common Stock of our Company in order to maintain their proportionate ownership interest. As
a result, the issuance of a significant amount of additional authorized Common Stock (other than as the result of a stock split
or other pro rata distribution to Shareholders) would result in a significant dilution of the beneficial ownership interests and/or
voting power of each company Shareholder who does not purchase additional shares to maintain his or her pro rata interest. As
additional shares are issued, the shares owned by our existing Shareholders will represent a smaller percentage ownership interest
in our Company. In addition, the issuance of additional shares of our Common Stock could result in a decrease in the
trading price of our Common Stock, depending on the price at which such shares are issued.
Possible Anti-Takeover Effects of the
Proposal
Our Board of Directors does not intend
or view the proposed increase in the number of authorized shares of our Common Stock as an anti-takeover measure, but rather, as
a means of providing greater flexibility to the Board of Directors as indicated above. Nevertheless, the proposed increase
in our authorized shares could enable the Board of Directors to issue additional shares to render more difficult or discourage
an attempt by another person or entity to obtain control of our Company, even if the holders of our Common Stock deem such acquisition
of control of our Company to be in their best interests. The issuance of additional shares of Common Stock in a public
or private sale, merger or similar transaction would increase the number of outstanding shares and thereby could dilute the proportionate
interest of a party attempting to gain control of our Company. As of the date of this Proxy Statement, except as disclosed
in the section titled “Changes in Control” of this proxy statement, our Board of Directors and our management are not
aware of any attempt or plan to takeover or acquire our Company or our Common Stock, and the proposal to increase the authorized
shares of our Common Stock was not prompted by any takeover or acquisition effort or threat. Other than the amendment to our Articles
of Incorporation to increase the number of authorized shares of our Common Stock, our Board of Directors does not currently contemplate
recommending the adoption of any other proposals or amendments to our Articles of Incorporation that could be construed to affect
the ability of third parties to take over or change the control of our Company.
Required Vote
The affirmative vote of the holders of
a majority of the voting power of the outstanding shares of capital stock of Elite as of the Record Date is required to approve
this Proposal No. 3. If you abstain or do not instruct your broker how to vote with respect to this proposal, your abstention or
broker non-vote will have the same effect as a vote against this proposal. It will become effective upon the filing of an Amended
Articles of Incorporation with the Secretary of State of Nevada, which we intend to make promptly after the completion of the Annual
Meeting.
OUR BOARD OF DIRECTORS RECOMMENDS THAT
YOU VOTE "FOR" THIS PROPOSAL TO AMEND OUR ARTICLES OF INCORPORATION TO INCREASE THE NUMBER OF SHARES OF COMMON STOCK
THE COMPANY IS AUTHORIZED TO ISSUE FROM 690,000,000 SHARES TO 995,000,000 SHARES
PROPOSAL NO. 3
RATIFICATION OF SELECTION OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTANTS
THE BOARD OF DIRECTORS RECOMMENDS A VOTE
“FOR” PROPOSAL NO. 3
The Board of Directors has appointed Demetrius
Berkower, LLC, LLC (“
Demetrius
”) as independent registered public accountants of Elite for the fiscal year ending
March 31, 2014, subject to ratification by the Shareholders. Demetrius has served as our independent registered public accountant
since 2010.
Shareholder ratification of the appointment
is not required by our Articles of Incorporation or By-Laws or otherwise. If our Shareholders fail to ratify the appointment, the
Board of Directors will reconsider whether to retain that firm. Even if the appointment is ratified, the Board of Directors in
its discretion may direct the appointment of a different independent accounting firm if the Board of Directors determines that
such a change would be in our best interests and the best interests of our Shareholders.
PRINCIPAL
ACCOUNTING FEES AND SERVICES.
The following table presents fees, including
reimbursements for expenses, for professional audit services rendered by Demetrius for the audits of our financial statements and
interim reviews of our quarterly financial statements for Fiscal 2013 and Fiscal 2012.
|
|
Fiscal 2013
|
|
|
Fiscal 2012
|
|
Audit Fees
|
|
|
76,000
|
|
|
|
76,250
|
|
Audit-Related Fees
|
|
|
—
|
|
|
|
3,000
|
|
Tax Fees
|
|
|
—
|
|
|
|
—
|
|
All Other Fees
|
|
|
1,150
|
|
|
|
475
|
|
Audit Fees
Represents fees for professional services
provided for the audit of our annual financial statements, services that are performed to comply with generally accepted auditing
standards, and review of our financial statements included in our quarterly reports and services in connection with statutory and
regulatory filings.
Audit-Related Fees
Represents the fees for assurance and related
services that were reasonably related to the performance of the audit or review of our financial statements.
The Audit Committee has determined that
Demetrius' rendering of these audit-related services was compatible with maintaining auditor's independence. The Board of Directors
considered Demetrius to be well qualified to serve as our independent public accountants. The Committee also pre-approved the charges
for services performed in 2013 and 2012.
The Audit Committee pre-approves all auditing
services and the terms thereof and non-audit services (other than non-audit services prohibited under Section 10A(g) of the Exchange
Act or the applicable rules of the SEC or the Public Company Accounting Oversight Board) to be provided to us by the independent
auditor; provided, however, the pre-approval requirement is waived with respect to the provisions of non-audit services for us
if the “de minimus” provisions of Section 10A (i)(1)(B) of the Exchange Act are satisfied. This authority to pre-approve
non-audit services may be delegated to one or more members of the Audit Committee, who shall present all decisions to pre-approve
an activity to the full Audit Committee at its first meeting following such decision.
A representative of that firm is expected
to be present at the Annual Meeting, and will have an opportunity to make a statement to the Shareholders and will be available
to respond to appropriate questions.
Vote Required; Recommendation of our
Board of Directors
The affirmative vote of a majority of the
total votes cast at the Annual Meeting, in person or by proxy, is required to adopt this Proposal No. 3.
THE BOARD OF DIRECTORS RECOMMENDS THAT
YOU VOTE "FOR" RATIFICATION OF
THE APPOINTMENT OF DEMETRIUS & COMPANY,
LLC AS THE COMPANY’S INDEPENDENT
REGISTERED PUBLIC ACCOUNTANTS FOR THE
FISCAL YEAR ENDING MARCH 31, 2014
PROPOSAL NO. 4
ADVISORY (NON-BINDING) VOTE APPROVING
EXECUTIVE COMPENSATION
THE BOARD OF DIRECTORS RECOMMENDS A VOTE
“FOR” PROPOSAL NO. 4
We are asking our Shareholders to provide
advisory approval of the compensation of our Named Executive Officers, as we have described at length in the “Executive Compensation”
section and in the “Board and Committee Matters and Corporate Governance Matters-Committees of the Board- Compensation Committee”
section of this proxy statement. While this vote is advisory and not binding on our Company relating to the compensation of our
Named Executive Officers that almost entirely are contractually committed with generally no opportunity to revisit these prior
decisions, your vote will provide investor sentiment to our Compensation Committee regarding our executive compensation philosophy,
policies and practices. As a result of the vote, the Committee will be able to consider this sentiment when determining future
executive compensation. For information on our 2013 executive compensation program, please see the “EXECUTIVE COMPENSATION”.
Objectives and Philosophy of Executive
Compensation
Our approach to executive compensation,
one of the most important and complex aspects of corporate governance, is influenced by our belief in rewarding people for consistently
strong execution and performance. We believe that the ability to attract and retain qualified executive officers and other key
employees is essential to our long-term success.
Compensation Linked to Attainment of
Performance Goals
Our plan to obtain and retain highly skilled
employees is to provide significant incentive compensation opportunities and market competitive salaries. The plan was intended
to link individual employee objectives with overall company strategies and results, and to reward executive officers and significant
employees for their individual contributions to those strategies and results. Furthermore, we believe that equity awards serve
to align the interests of our executives with those of our Shareholders. As such, equity is a key component of our compensation
program.
The primary elements of our executive compensation
program are base salary, incentive cash and stock bonus opportunities and equity incentives typically in the form of stock option
grants or payment of a portion of annual salary as stock. Although we provide other types of compensation, these three elements
are the principal means by which we provide the Named Executive Officers with compensation opportunities.
The annual bonus opportunity and equity
compensation components of the executive compensation program reflect our belief that a portion of an executive’s compensation
should be performance-based. This compensation is performance-based because payment is tied to the achievement of corporate performance
goals. To the extent that performance goals are not achieved, executives will receive a lesser amount of total compensation.
Your vote is requested. We believe that
the information we've provided within the “Compensation Discussion and Analysis Summary” and “Our Executive Compensation
Program” subsections of “EXECUTIVE COMPENSATION” section of this proxy statement demonstrates that our executive
compensation program was designed appropriately and is working to ensure Management's interests are aligned with our Shareholders'
interests to support long-term value creation. Accordingly, the Board of Directors recommends that Shareholders approve the program
by approving the following advisory resolution:
“RESOLVED, that the Shareholders
of Elite Pharmaceuticals, Inc. approve, on an advisory basis, the compensation of the individuals identified in the Summary Compensation
Table, as disclosed in the Elite Pharmaceuticals, Inc. Proxy Statement pursuant to the compensation disclosure rules of the SEC,
including Item 402 of Regulation S-K.”
THE BOARD OF DIRECTORS RECOMMENDS THAT
YOU VOTE "FOR"
APPROVAL, ON AN ADVISORY BASIS, EXECUTIVE
COMPENSATION
PROPOSAL NO. 5
ADVISORY (NON-BINDING) VOTE DETERMINING
THE FREQUENCY OF
ADVISORY VOTES ON EXECUTIVE COMPENSATION
THE BOARD OF DIRECTORS RECOMMENDS A VOTE
“FOR”THE SELECTION OF “THREE YEARS” ON PROPOSAL NO. 5
In addition to the advisory approval of
our executive compensation program, we are also seeking a non-binding determination from our Shareholders as to the frequency with
which Shareholders would have an opportunity to provide an advisory approval of our executive compensation program. We are providing
Shareholders the option of selecting a frequency of three, two or one years, or abstaining.
For the reasons described below, we recommend
that our Shareholders select a frequency of three years, or a triennial vote.
Our executive compensation program is designed
to support long-term value creation, and a triennial vote will allow Shareholders to better judge our executive compensation program
in relation to our long-term performance.
A triennial vote will provide us with the
time to thoughtfully consider Shareholders’ sentiments and implement viable changes. We will continue to carefully review
executive compensation to maintain the consistency and credibility of the program which is important in motivating and retaining
our key employees. We therefore believe that a triennial vote is an appropriate frequency to provide our Compensation Committee
sufficient time to thoughtfully consider Shareholders’ input and to implement any appropriate changes to our executive compensation
program, in light of the timing that would be required to implement such changes.
Your vote is requested. We therefore request
that our Shareholders select “Three Years” when voting on the frequency of advisory votes on executive compensation.
Although the advisory vote is non-binding, our Compensation Committee will consider the results of the vote and take them into
account in making a determination concerning the frequency of advisory votes on executive compensation.
THE BOARD OF DIRECTORS RECOMMENDS
SHAREHOLDERS SELECT “THREE YEARS” ON THE PROPOSAL RECOMMENDING THE FREQUENCY OF ADVISORY VOTES ON EXECUTIVE
COMPENSATION.
PROPOSAL NO. 6
APPROVAL OF ELITE PHARMACEUTICALS, INC.
2014 EQUITY INCENTIVE PLAN
THE BOARD OF DIRECTORS RECOMMENDS A VOTE
“FOR” PROPOSAL NO. 6
Background and Effective Date
The board of directors believes that it
is in the best interest of the Company and the shareholders to approve the Elite Pharmaceuticals, Inc. 2014 Equity Incentive Plan
(the “2014 Plan”). The board of directors approved the 2014 Plan on March 17, 2014 at which point it became effective.
In order for us to issue qualified stock options under the 2014 Plan, we require the approval of our shareholders at the Meeting.
If the Company does not obtain shareholder approval of the 2014 Plan at the Annual Meeting or within twelve (12) months after its
effective date, any Option granted at any time under the 2014 Plan as an incentive stock option (“ISO”) intended to
qualify under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”) will not be an ISO and will
be deemed to be a non-qualified stock options.
Summary Description of the 2014 Plan
The material provision of the 2014 Plan
are summarized below: The following description of the 2014 Plan is a summary and is qualified in its entirety by reference to
the 2014 Plan, a copy of which is attached as
Appendix B
to this Proxy Statement. Shareholders are urged to review the 2014
Plan before determining how to vote on this proposal.
Purpose
- The purpose of the 2014
Plan is to attract, motivate and retain officers, employees, consultants, and directors by issuing common stock based incentives
to directors, officers, employees and consultants who are selected for participation. By relating incentive compensation to increases
in shareholder value, it is hoped that these individuals will both continue in the long-term service of the Company and be motivated
to experience a heightened interest and participate in the future success of Company operations. The 2014 Plan is designed so that
the interests of individuals selected to receive the award will be more closely aligned with that of the Company’s shareholders.
Participation
- Participants in
the 2014 Plan shall be those officers, full and part-time employees, consultants and non-employee directors who, in the judgment
of the Committee are performing, or during the term of their incentive arrangement, will perform important services in the management,
operation and development of the Company, and are expected to significantly contribute to long term corporate economic objectives.
The 2014 Plan is administered by the board of directors or the Compensation Committee of the board of directors (the “Administrator”).
Subject to the terms of the 2014 Plan, the Administrator determines the persons to whom awards are granted, the types of awards
granted, the number of shares subject to the awards, the vesting schedules, the type of consideration to be paid to the Company
upon exercise of awards and the term of any award (which cannot exceed ten years). No single participant may be granted an award
in excess of 1,000,000 shares in a twelve-month period. The Administrator may delegate to officers the power to make these determinations,
except with respect to grants to executive officers and directors. There are currently one officer, four employees, six non-employee
directors and no consultants eligible to participate in the 2014 Plan.
Form of Awards
- Awards under the
2014 Plan may be granted in any one or all of the following forms: (i) incentive stock options (“ISOs”) intended to
qualify under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”); (ii) non-qualified stock options
(“NSOs”); (iii) stock appreciation rights, which may be granted in tandem with options or on a stand-alone basis; (iv)
shares of restricted stock; (v) shares of unrestricted stock; (vi) performance shares, and (vii) performance units.
Maximum Shares Available
- The maximum
aggregate number of shares of common stock available for award under the 2014 Plan is 3,000,000, subject to adjustment as provided
in the 2014 Plan. Shares that are subject to an award which are not used because the terms of the award are not met, including
shares which expire, terminate or are forfeited, shares used for full or partial payment of the purchase price of an award, and
shares retained by the Company for withholding tax purposes will be available for subsequent awards under the 2014 Plan.
Options
- Under the 2014 Plan, the
Administrator may grant both ISOs and NSOs. Options may not be granted under the 2014 Plan at an exercise price of less than the
fair market value of the common stock on the date of grant and the term of options cannot exceed ten years. ISOs may only be granted
to persons who are employees of the Company. The exercise price of an ISO granted to a holder of more than 10% of the common stock
must be at least 110% of the fair market value of the common stock on the date of grant, and the term of these options cannot exceed
five years. No more than 3,000,000 shares are available for grant as ISOs. The aggregate market price (determined at the date of
grant) of common stock with respect to which ISO’s are exercisable for the first time by any option holder during any year
under all Company plans may not exceed $100,000. ISOs granted pursuant to the 2014 Plan may not be exercised more than three months
after the option holder ceases to be an employee of the Company, except that in the event of the death, disability, or retirement
of the option holder, the option may be exercised by the holder (or such holder’s estate, as the case may be), for a period
of up to one year after the date of death, disability or retirement.
Stock Appreciation Rights
- The
Administrator may grant free standing stock appreciation rights or stock appreciation rights in tandem with option awards. Stock
appreciation rights represent the right to receive upon exercise an amount payable in cash or common stock equal to (A) the number
of shares with respect to which the stock appreciation right is being exercised multiplied by (B) the excess of (i) the fair market
value of a share of common stock on the date the award is exercised over (ii) the exercise price specified in the award agreement.
Tandem stock appreciation rights may be
exercisable only to the extent that the related option is exercisable and will be exercisable only for such period as the Administrator
determines, which may expire prior to the expiration of the related option. If a stock appreciation right is issued in tandem with
an option, the exercise of the stock appreciation right or the related option will result in an equal reduction in the number of
corresponding shares subject to the option or stock appreciation right, as applicable, that were granted in tandem with such stock
appreciation right or option. Nontandem stock appreciation rights will be exercisable during such period as the Administrator determines.
At the discretion of the Administrator,
payment upon exercise may be in cash, shares of common stock (with or without restrictions), or any combination thereof, as determined
by the Administrator in its sole discretion.
Performance Awards
- Under the performance
award component of the 2014 Plan, participants may be granted an award denominated in shares of common stock (“performance
shares”) or in dollars (“performance units”). Achievement of the performance targets, or multiple performance
targets established by the Administrator relating to corporate, group, unit or individual performance based upon standards set
by the Administrator shall entitle the participant to payment at the full amount or a portion of the amount specified with respect
to the award, at the discretion of the Administrator based on its evaluation of the performance of the target goals applicable
to such award. Payment may be made in cash, common stock or any combination thereof, as determined by the Administrator, and shall
be adjusted in the event the participant ceases to be an employee of the Company before the end of a performance cycle by reason
of death, disability or retirement.
Stock Awards
- Under the stock component
of the 2014 Plan, the Administrator may, in selected cases, grant to a plan participant a given number of shares of restricted
stock or unrestricted stock. Restricted stock under the 2014 Plan is common stock restricted as to sale pending fulfillment of
such vesting schedule and employment requirements as the Administrator shall determine. Prior to the lifting of the restrictions,
the participant will nevertheless be entitled to receive distributions in liquidation and dividends on, and to vote the shares
of, the restricted stock. The 2014 Plan provides for forfeiture of restricted stock for breach of conditions of grant.
Non-Employee Director Awards
- The
2014 Plan also permits the board of directors (and not the Compensation Committee) to grant awards of NSOs, restricted stock or
unrestricted stock to non-employee directors. The board may authorize individual grants or adopt one or more formulas for grants
of awards to the non-employee directors. All options granted to non-employee directors must have an exercise price equal to the
fair market value at the date of grant.
Exercise Price
- The exercise price
of awards may be paid in cash, in shares of common stock (valued at fair market value at the date of exercise), by delivery of
a notice of exercise together with irrevocable instructions to a broker to deliver to the Company the proceeds of the sale of common
stock or of a loan from the broker sufficient to pay the exercise price, by having the Company withhold from shares being exercised
the number of shares having a fair market value equal to the exercise price for all shares being exercised, or by a combination
of the foregoing means of payment, as may be determined by the Administrator. The Company may guarantee a third-party loan or make
a loan to a participant that is not an officer or director if all or part of the exercise price of such loan is secured by the
stock underlying the award and the loan bears a market interest rate.
162(m) Awards
- Generally the Company
cannot deduct compensation paid to the named executive officers in excess of $1,000,000. An exemption is available for “qualified
performance based” compensation that satisfies the requirements of Section 162(m) of the Code. The 2014 Plan permits the
Administrator to establish awards which qualify for the exemption. In order to qualify, an award must be based on the achievement
of one or more objective performance goals selected by the Administrator which shall be based on one or any combination of the
following: specified levels of earnings per share, operating income (before or after taxes), production or production growth, resource
replacement or resource growth, revenues, gross margin, return on operating assets, return on equity, economic value added, stock
price appreciation, total shareholder return (measured in terms of stock price appreciation and dividend growth), successful completion
of financing, cash flows, or cost control, of the Company, an affiliate, or a division for or within which the participant is primarily
employed. Such performance goals may also be based upon the attaining of specified levels of Company performance under one or more
of the measures described above relative to the performance of other companies. The Administrator may not adjust such an award
upwards, nor may it waive the achievement of goals except in the case of death or disability of the participant.
Adjustments
- The 2014 Plan provides
that the total number of shares covered by such 2014 Plan, the number of shares covered by each award and the exercise price per
share may be proportionately adjusted by the Administrator in the event of a stock split, reverse stock split, stock dividend or
similar capital adjustment effected without receipt of consideration by the Company. Upon a merger or sale of substantially all
assets of the Company, the Administrator will have the power and discretion to prescribe the terms for exercise or modification
of outstanding awards under the 2014 Plan. In addition, upon a change of control, the Administrator is authorized to make adjustments
in outstanding awards, including acceleration of exercise dates and vesting schedules, granting cash bonuses to award holders equal
to the exercise price, making cash payments to holders equal to the difference between the fair market value and the exercise price
of awards in exchange for cancellation of the awards, and elimination of restrictions on vesting of restricted stock or performance
shares.
Amendments
- The board of directors
may amend or discontinue the 2014 Plan at any time, provided that no such amendment may become effective without approval of the
shareholders if shareholder approval is necessary to satisfy statutory or regulatory requirements or if the board of directors,
on advice of counsel, determines that shareholder approval is otherwise necessary or desirable. No amendment or discontinuance
shall adversely affect the rights and obligations with respect to outstanding awards under the 2014 Plan without the consent of
award holders.
Registration of Underlying Common Stock
- If the 2014 Plan is approved by the shareholders, the Company expects to file a registration statement on Form S-8 to register
up to the 3,000,000 shares of common stock that will be reserved for issuance under the 2014 Plan.
New Plan Benefits
No awards have been proposed or are determinable
at this time for the 2014 Plan. However, if the 2014 Plan had been in effect during the last fiscal year, the following table shows
what would have been issued.
2014 Equity Incentive Plan
|
Position
|
|
Dollar Value
($)
|
|
|
Number of
Shares
(1)
|
|
Executive Group (2 persons)
|
|
|
—
|
(2)
|
|
|
—
|
(2)
|
Non-Executive Director Group (5 persons)
|
|
|
—
|
(2)
|
|
|
—
|
(2)
|
Non-Executive Officers (zero persons)
|
|
|
—
|
(2)
|
|
|
—
|
(2)
|
Employee Group (5 persons)
|
|
|
46,726
|
(2)
|
|
|
492,728
|
(2)
|
|
(1)
|
Number of shares determined by the average of the daily closing prices for the Common Stock over the prior calendar year
|
|
(2)
|
If the proposed 2014 Plan is approved, the shares authorized for the 2014 Plan will be used only for future grants. No awards
have been proposed or are determinable at this time for these groups.
|
Federal Income Tax Consequences of the
Equity Incentive Plan
The following is a general summary of the
federal income tax consequences that may apply to recipients of options, stock appreciation rights, stock, performance shares and
performance units under the 2014 Plan. Because the application of the tax laws may vary according to individual circumstances,
each participant is urged to seek professional tax advice concerning the tax consequences to him or her of participation in the
2014 Plan including the potential application and effect of state, local and foreign tax laws and estate and gift tax considerations.
Incentive Stock Options
- A participant
who is granted an ISO recognizes no taxable income when the ISO is granted and generally recognizes no taxable income upon exercise
of the ISO unless the alternative minimum tax applies (see below). A participant who exercises an ISO recognizes taxable gain or
loss when the participant sells the shares purchased pursuant to the ISO. Any gain or loss recognized on the sale of shares acquired
upon exercise of an ISO is taxed as capital gain or loss if the shares have been held for more than one year from the date the
option was exercised and for more than two years after the option was granted. In this event, the Company receives no deduction
with respect to the ISO shares. If the participant disposes of the shares before the required holding periods have elapsed (a “disqualifying
disposition”), the participant recognizes ordinary income on disposition of the shares, to the extent of the difference between
the fair market value on the date of exercise (or potentially up to six months thereafter if the option holder is subject to Section
16(b) of the Securities Exchange Act of 1934 (the “Act”) as a director, officer or greater than 10% shareholder) and
the exercise price, but, in the case of a disposition in which a loss (if sustained) would be recognized, not exceeding the net
gain upon such disposition. The Company generally receives a corresponding deduction in the year of the disqualifying disposition
equal to the amount of ordinary income recognized by the option holder. Long-term capital gain is currently taxed at a more favorable
rate than ordinary income, but the deduction of capital losses is subject to limitation.
Certain taxpayers who have significant
tax preferences (and other items allowed favorable treatment for regular tax purposes) may be subject to the alternative minimum
tax (“AMT”). The AMT is payable only if and to the extent that it exceeds the taxpayer’s regular tax liability,
and AMT paid generally may be credited against subsequent regular tax liability. For purposes of the AMT, an incentive stock option
is treated as if it were a non-statutory option (see below). Thus, the difference between fair market value on the date of exercise
(or potentially up to six months thereafter if the option holder is subject to Section 16(b) of the Act) and the option price is
included in income for AMT purposes, and the taxpayer receives a basis equal to such fair market value for subsequent AMT purposes.
However, regular tax treatment (see above) will apply for AMT purposes if a disqualifying disposition occurs in the same taxable
year as the options are exercised.
Non-Statutory Stock Options
- The
tax treatment of NSOs differs significantly from the tax treatment of ISOs. Similar to an ISO, no taxable income is recognized
when an NSO is granted. However, upon the exercise of an NSO, the difference between the fair market value of the shares on the
date of exercise and the exercise price of the option is taxable as ordinary compensation income to the recipient. In addition,
the Company is entitled to a compensation deduction for the amount of ordinary income recognized by the option holder. If the option
holder is subject to Section 16(b) of the Act, the date for measuring taxable income potentially may be deferred for up to six
months (unless the employee makes an election under Section 83(b) of the Code within 30 days after the exercise date).
Stock Appreciation Rights
- No income
will be recognized by a participant in connection with the grant of a tandem stock appreciation right or a nontandem stock appreciation
right. When the stock appreciation right is exercised, the participant normally will be required to include as taxable ordinary
income in the year of exercise an amount equal to the amount of cash received and the fair market value of any unrestricted shares
of common stock received on the exercise of the stock appreciation right. The Company is entitled to a compensation deduction for
the amount of ordinary income recognized by the participant.
Unrestricted Stock
- Grantees of
unrestricted stock awards generally will recognize taxable income in an amount equal to the fair market value of the stock at the
time of the grant (or potentially up to six months thereafter if the grantee is subject to Section 16(b) of the Act) less the amount,
if any, paid for the stock.
Restricted Stock
- Grantees of restricted
stock awards generally do not recognize income at the time of the grant of such awards. However, when shares of restricted stock
are no longer subject to a substantial risk of forfeiture (or potentially up to six months thereafter if the grantee is subject
to Section 16(b) of the Act), grantees recognize ordinary income in an amount equal to the fair market value of the stock less
the amount, if any, paid for the stock. Alternatively, the grantee of restricted stock may elect, under Section 83(b) of the Code
to recognize income upon the grant of the stock and not at the time the restriction lapses, provided this election is properly
made within 30 days after the grant. The Company is entitled to deduct an amount equal to the fair market value of the stock at
the time the grantee recognizes income related to the grant.
Performance Awards
- Generally no
income will be recognized by a participant upon the grant of a performance award. When payment is made with respect of the earn-out
of a performance award (or, with respect to performance shares, potentially up to six months thereafter if the grantee is subject
to section 16(b) of the Act), the recipient generally will be required to recognize ordinary income in an amount equal to the cash
received and the fair market value of any unrestricted shares of common stock received. The Company is entitled to a compensation
deduction for the amount of ordinary income recognized by the participant.
Withholding
- The Company may withhold
any taxes required by any law or regulation of any governmental authority, whether federal, state or local, in connection with
any award under the 2014 Plan, including, but not limited to withholding of any portion of any payment or withholding from other
compensation payable to the participant, unless such person reimburses the Company for such amount.
Compliance with Section 409A of the
Code
- To the extent applicable, it is intended that the 2014 Plan and any grants made thereunder comply with the provisions
of Section 409A of the Code, so that the income inclusion provisions of Section 409A(a)(1) of the Code do not apply to the participants.
The 2014 Plan and any grants made under the 2014 Plan will be administered in a manner consistent with this intent.
Limitations on the Company’s compensation
deduction - The Company’s ability to take a compensation deduction based on the amount of ordinary income recognized by a
participant is subject to certain limitations attributable to payments of excess compensation such as Sections 162(m) and 280G
of the Code.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE
“FOR” APPROVAL OF THE
ELITE PHARMACEUTICALS, INC. 2014 EQUITY
INCENTIVE PLAN
AUDIT COMMITTEE REPORT
The Audit Committee’s primary responsibilities
are to monitor the integrity of our financial statements and reporting process and systems of internal controls regarding finance
and accounting and to monitor our compliance with legal and regulatory requirements, including disclosures and procedures. The
committee also has the responsibility to evaluate our independent auditor’s qualifications, independence and performance
as well as to evaluate the performance of the internal audit function.
Management has the primary responsibility
for the financial statements and the reporting process, including our systems of internal controls. The independent auditors are
responsible for auditing the annual financial statements prepared by management and expressing an opinion as to whether those financial
statements conform with accounting principles generally accepted in the United States of America. The Audit Committee reviewed
and discussed the audited financial statements with management and our independent auditors.
We have discussed with the independent
auditors those matters required to be communicated to us by auditing standard AU380,
Communication with Audit Committees,
issued by the American Institute of Certified Public Accountants.
We have received and reviewed the written
disclosures and the letter from the independent auditors as required by applicable requirements of the Public Company Accounting
Oversight Board regarding the independent accountant’s communication with the audit committee concerning independence, and
have discussed with the auditors the auditor’s independence.
Based upon the review and discussions described
in this report, the audit committee recommended to the Board of Directors that the audited financial statements be included in
our Annual Report on Form 10-K for the fiscal year ended March 31, 2013 that has been filed with the Securities and Exchange Commission.
|
AUDIT COMMITTEE
|
|
|
|
Barry Dash
|
|
Jeffrey Whitnell, Chairman
|
The Audit Committee Report does not
constitute soliciting material, and shall not be deemed to be filed or incorporated by reference into any other Company filing
under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, except to the extent that the
Company specifically incorporates the Audit Committee Report by reference therein.
* * * * * *
BOARD AND COMMITTEE MATTERS AND CORPORATE
GOVERNANCE MATTERS
Board Leadership Structure and Role
in Risk Oversight
Our Board of Directors recognizes that
the leadership structure and combination or separation of the Chief Executive Officer and Chairman roles is driven by the needs
of the Company at any point in time. As a result, no policy exists requiring the combination or separation of leadership roles
and our governing documents do not mandate a particular structure. This allows our Board of Directors the flexibility to establish
the most appropriate structure for the Company at any given time. In August 2013, Mr. Hakim became our Chief Executive Officer.
Mr. Treppel, the prior Chief Executive Officer resigned from that position but remains our Chairman of the Board. The Board of
Directors believes that, having separate Chief Executive Officer and Chairman positions is the appropriate leadership structure
for the Company.
Our Board of Directors is responsible for
overseeing the overall risk management process at the Company. Risk management is considered a strategic activity within the Company
and responsibility for managing risk rests with executive management while the Board of Directors participates in the oversight
of the process. The oversight responsibility of our Board of Directors is enabled by management reporting processes that are designed
to provide visibility to the Board of Directors about the identification, assessment, and management of critical risks. These areas
of focus include strategic, operational, financial and reporting, succession and compensation, compliance, and other risks.
Board Independence
Our Common Stock is quoted on the OTC Bulletin
Board which does not require that a majority of the Company’s directors be independent. Our Board of Directors has two members
who are “independent” as defined in Section 803(2) of the NYSE MKT LLC Company Guide. The Board of Directors considers
all relevant facts and circumstances in making its determination as to the independence of each member of the Board of Directors
(including any relationships set forth in this Proxy Statement under the heading “
Certain Related Person Transactions
”).
Our Board of Directors has affirmatively determined that none of the following Directors has a material relationship with us that
would interfere with the exercise of his independent judgment (either directly or as a partner, Shareholder or officer of an organization
that has a relationship with us): Dr. Barry Dash and Jeffrey Whitnell are therefore deemed independent.
Shareholder Communications with the
Board of Directors
Shareholders and other interested parties
may contact the Board of Directors or the non-management directors as a group at the following address:
|
Board of Directors or Outside Directors
|
|
Elite Pharmaceuticals, Inc.
|
|
165 Ludlow Avenue
|
|
Northvale, NJ 07647
|
All communications received at the above
address will be relayed to the Board of Directors or the non-management directors, respectively. Communications regarding accounting,
internal accounting controls or auditing matters may also be reported to the Audit Committee using the above address.
Conduct Of The Meeting
The Chairman of our Board (or any person
designated by our Board) has broad authority to conduct the annual meeting of Shareholders in an orderly manner. This authority
includes establishing rules of conduct for Shareholders who wish to address the meeting, including limiting questions to the order
of business and to a certain amount of time. Copies of these rules will be available at the meeting. To ensure that the meeting
is conducted in a manner that is fair to all Shareholders, the Chairman (or such person designated by our Board) also may exercise
broad discretion in recognizing Shareholders who wish to speak, in determining the extent of discussion on each item of business
and in managing disruptions or disorderly conduct.
Board Meetings
During the fiscal year ended March 31,
2013, our Board of Directors held 9 meetings and acted by written consent on two occasions. No incumbent director attended fewer
than 75% of the meetings of the Board of Directors, or committees on which these directors served, during that year.
Director Attendance at Annual Meeting
of Shareholders
We do not have any policy requiring directors
to be present at our Annual Meeting of Shareholders, however historically more than a majority of the incumbent directors have
attended the annual meeting of Shareholders, and we anticipate a majority of our directors will be present at the Annual Meeting.
Section 16(a) Beneficial Ownership Reporting
Compliance
Section 16(a) of the Exchange Act requires
our Officers, Directors, and persons who own more than ten percent of a registered class of equity securities, to file reports
with the Securities and Exchange Commission (the “SEC”) reflecting their initial position of ownership on Form 3 and
changes in ownership on Form 4 or Form 5. Based solely on a review of the copies of such Forms received by us, we found that, during
the fiscal year ended March 31, 2013,
three of our Officers and Directors and two entities that had beneficial ownership
of more than ten percent of a registered class of equity securities had not complied with all applicable Section 16(a) filing requirements
on a timely basis with regard to transactions occurring in Fiscal 2013. Specifically, as follows:
Name
|
|
Late Filings
|
|
No. of Transactions
|
Ashok Nigalaye
|
|
3
|
|
4
|
Jeenarine Narine
|
|
3
|
|
4
|
Epic Investments LLC
|
|
3
|
|
4
|
Epic Pharma LLC
|
|
3
|
|
4
|
Committees of the Board
The Board of Directors has an Audit Committee,
Nominating Committee and a Compensation Committee.
Audit Committee
. The current members
of the Audit Committee are Jeffrey Whitnell (Chairman of the Audit Committee) and Barry Dash. The Audit Committee held four meetings
during the fiscal year ended March 31, 2013. Our Audit Committee operates under a written charter, a current copy of which is
posted on our website at
http://www.elitepharma.com/CorporateGovernance.asp
.
The Audit Committee reviews with management
and our auditors our financial statements, the accounting principles applied in their preparation, the scope of the audit, any
comments made by the auditors on our financial statements and our accounting controls and procedures, the independence of our auditors,
our internal controls, the other matters set forth in its charter, as adopted by the Board of Directors, and such other matters
as the Audit Committee deems appropriate. The Audit Committee is directly responsible for the appointment, compensation, retention
and oversight of the work of our independent auditors for the purpose of preparing or issuing an audit report or performing other
audit, review or attest services for us. We deem the members of our Audit Committee are “independent,” as defined in
Section 803(2) of the NYSE: MKT Company Guide and Rule 10A-3 under the Exchange Act, and Mr. Whitnell to be qualified as an “audit
committee financial expert,” as such term is defined in Item 407(d)(5) of Regulation S-K promulgated under the Securities
Act of 1933, as amended (the “Securities Act”).
During Fiscal 2013, the members of the
Audit Committee were Jeffrey Whitnell (Chairman of the Audit Committee), Ram Potti and Dr. Barry Dash. We deem Messrs. Whitnell
and Dash to be independent and Mr. Whitnell to be qualified as an audit committee financial expert. The Board of Directors has
determined that Messrs. Whitnell and Dash are independent directors as (i) defined in Rule 10A-3(b)(1)(ii) under the Exchange Act
and (ii) under Sections 803A(2) and 803B(2)(a) of the NYSE MKT LLC Company Guide (although our securities are not listed on the
NYSE MKT LLCE or any other national exchange). Mr. Potti resigned as a Director and member of Audit Committee in December 2012.
His seat on the Audit Committee has not been replaced. As of the Record Date, the Audit Committee accordingly consists of Mr. Whitnell
and Dr. Dash.
Nominating Committee
. The current
members of the Nominating Committee are Jeenarine Narine and Barry Dash. The Nominating Committee held no meetings during the fiscal
year ended March 31, 2013. This committee does not have a charter. The Nominating Committee assists the Board of Directors in identifying
and recommending qualified Board candidates. The Nominating Committee identifies Board candidates through numerous sources, including
recommendations from Directors, executive officers and our Shareholders. The Nominating Committee seeks to have available to it
qualified candidates from a broad pool of individuals with a range of talents, experience, backgrounds and perspectives. The Nominating
Committee seeks to identify those individuals most qualified to serve as Board members and considers many factors with regard to
each candidate, including judgment, integrity, diversity, prior experience, the interplay of the candidate’s experience with
the experience of other Board members, the extent to which the candidate would be desirable as a member of any committees of the
Board of Directors, and the candidate’s willingness to devote substantial time and effort to Board responsibilities. The
Nominating Committee makes recommendations to the Board of Directors with respect to Director nominees, and the full Board of Directors
determines the slate of nominees for each annual meeting.
During the fiscal year ended March 31,
2013, the members of the Nominating Committee were Ram Potti, Dr. Barry Dash and Jeenarine Narine. There were no material changes
to the procedures by which security holders may recommend nominees to our Board of Directors since the filing of our last Annual
Report on Form 10-K. Mr. Potti resigned as a Director and member of Nominating Committee in December 2012. His seat on the Nominating
Committee has not been replaced. As of the Record Date, the Nominating Committee consists of Mr. Narine and Dr. Dash.
Shareholders may suggest qualified candidates
for directors. To do this, they should write to the attention of the Corporate Secretary, Elite Pharmaceuticals, Inc., 165 Ludlow
Avenue, Northvale, New Jersey 07647, stating in detail the qualifications of such persons for consideration by the Committee.
Compensation Committee
. The current
members of the Compensation Committee are Barry Dash (Chairman of the Compensation Committee), Ashok Nigalaye and Jeffrey Whitnell.
The Compensation Committee held one meeting during the fiscal year ended March 31, 2013. Our Compensation Committee operates under
a written charter, a current copy of which is posted on our website at
http://www.elitepharma.com/CorporateGovernance.asp
.
The Compensation Committee reviews our compensation practices and policies, reviews and approves corporate goals and objectives
relevant to the chief executive officer and other executive officer compensation, evaluates chief executive officer and executive
officer performance in light of those goals and objectives and, either as a committee or together with other independent directors
(as directed by the Board of Directors), determines and approves chief executive officer and executive officer compensation based
on this evaluation, reviews and approves the terms of the offer letters, employment agreements, severance agreements, change-in-control
agreements, indemnification agreements and other material agreements between the Company and its Chief Executive Officer and executive
officers, annually reviews and approves perquisites for the chief executive officer and executive officers, considers and approves
the report of the Compensation Committee for inclusion in the Company’s proxy statement, makes recommendations to the Board
of Directors with respect to the Company’s employee benefit plans, administers incentive, deferred compensation and equity
based plans, and has the other responsibilities as set forth in its charter, as adopted by the Board of Directors, and such other
matters as the Compensation Committee deems appropriate. For more information on the compensation of directors and officers of
the Company, see the “Compensation Discussion and Analysis” and “Compensation” sections below.
During the fiscal year ended March 31,
2013, the members of the Compensation Committee were Barry Dash (Chairman of the Compensation Committee), Dr. Ashok Nigalaye and
Jeffrey Whitnell.
Compensation Committee Interlocks and
Insider Participation
Two of the three members of the Compensation
Committee were not officers or employees of the Company or any of its subsidiaries during the year ended March 31, 2013, nor did
they have any relationship otherwise requiring disclosure.
Code of Ethics
Our
Board of Directors has adopted a Code of Business Conduct and Ethics applicable to all of our directors, officers and employees,
including our Principal Executive Officer and our Principal Financial and Accounting Officer. A copy of the Code is available
on the Investor Relations portion of our website at
www.elitepharma.com
. Any waivers of the Code for directors or executive
officers must be approved by the Board
Our Board of Directors and
we are required to disclose any such waiver in a Current Report on Form 8-K within four business days.
DIRECTOR COMPENSATION
The following table sets forth information concerning director
compensation for the year ended March 31, 2013:
Name
|
|
Fees
Earned
or Paid
In
Cash
($)
|
|
|
Stock
Awards
($)
|
|
|
Option
Awards
($)
|
|
|
Non-
Equity
Incentive
Plan
Compen-
sation
($)
|
|
|
Non-
qualified
Deferred
Compen-
sation
($)
|
|
|
All
Other
Compen-
sation
($)
|
|
|
Total
($)
|
|
Jerry Treppel
(6)
|
|
|
—
|
|
|
|
25,000
|
(3)(4)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
5,000
|
(3)(5)
|
|
|
30,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Barry Dash
|
|
|
—
|
|
|
|
15,000
|
(1)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
5,000
|
(2)
|
|
|
20,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ashok Nigalaye
|
|
|
—
|
|
|
|
15,000
|
(1)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
5,000
|
(2)
|
|
|
20,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jeenarine Narine
|
|
|
—
|
|
|
|
15,000
|
(1)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
5,000
|
(2)
|
|
|
20,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jeffrey Whitnell
|
|
|
—
|
|
|
|
15,000
|
(1)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
5,000
|
(2)
|
|
|
20,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ram Potti *
|
|
|
—
|
|
|
|
15,000
|
(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,000
|
|
|
(1)
|
Represents directors fees earned during the quarters ended June 30, 2012, September 30, 2012 and
December 31, 2012. Each Director received 135,332 shares of Common Stock in payment of these director fees, pursuant to the Company’s
policy regarding payment of Directors’ fees.
|
|
(2)
|
Represents director fees earned during the quarter ended March 31, 2013, for which 60,133 shares
of Common Stock was due and owing to each Director as of March 31, 2013, with such shares being issued in March of 2014.
|
|
(3)
|
Represents compensation due to Mr. Treppel for his service as the Chairman of the Board of Directors.
During the fiscal year ended March 31, 2013, Mr. Treppel also served as the Company’s Chief Executive Officer, for which
Mr. Treppel received no salary or additional compensation.
|
|
(4)
|
Represents Chairman’s fees earned during the quarters ended June 30, 2012, September 30,
2012 and December 31, 2012. Mr. Treppel received 202,998 shares of Common Stock in payment of these director fees, pursuant to
the Company’s policy regarding payment of Directors’ fees.
|
|
(5)
|
Represents Chairman’s fees earned during the quarter ended March 31, 2013, for which 90,200
shares of Common Stock was due and owing to Mr. Treppel as of March 31, 2013 with such shares being issued in March of 2014.
|
|
(6)
|
During the year ended March 31, 2013, Mr. Treppel served as both Chairman of the Board and Chief
Executive Officer. In August of 2013, Mr. Treppel stepped down from his position as Chief Executive Officer and remained as Chairman
of the Board of Directors.
|
|
*
|
Mr. Potti resigned as director in December 2012.
|
Fee Compensation
Director Fee Compensation
The Company’s policy regarding director
fees is as follows: ((i) Directors who are employees or consultants of the Company (and/or any of its subsidiaries), receive no
additional remuneration for serving as directors or members of committees of the Board; (ii) all Directors are entitled to reimbursement
for out-of-pocket expenses incurred by them in connection with their attendance at the Board or committee meetings; (iii) Directors
who are not employees or consultants of the Company (and/or any of its subsidiaries) receive $20,000 annual retainer fee, payable
on a quarterly basis, in arrears, for their service on the Board and all committees; (iv) The Chairman of the Board receives a
$30,000 annual retainer fee, payable on a quarterly basis, in arrears; (v) Directors and the Chairman do not receive any additional
compensation for attendance at or chairing of any meetings. (vi) Mr. Jerry Treppel receives no additional compensation, above the
annual retainer fee due to the Chairman of the Board, for his services as Chief Executive Officer (vii) Dr. Ashok Nigalaye receives
no additional compensation, above the annual retainer fee due to Directors, for his services as Chief Scientific Officer. (viii)
All Director and Chairman fees are paid via the issuance of Common Stock of the Company, in lieu of cash, as described below.
Director Equity Compensation
Members of the Board of Directors and the
Chairman are paid their annual retainer fees via the issuance of restricted shares of Common Stock of the Company, in lieu of cash.
The number of shares to be issued to each Director and the Chairman is equal to the quotient of the quarterly amount due to each
Director and the Chairman, respectively, divided by the average daily closing price of the Company’s stock for the quarter
just ended.
Members of the Board of Directors during
the fiscal years ended March 31, 2013 and March 31, 2012 did not receive any options or equity compensation for serving as directors
other than shares of Common Stock earned in lieu of cash in relation to Director and Chairman fees due.
Other
The Company’s Articles of Incorporation
provide for the indemnification of each of the Company’s directors to the fullest extent permitted under Nevada General Corporation
Law.
EXECUTIVE OFFICERS
Set forth below are the names and certain
information about our current executive officers:
Name
|
|
Age
|
|
Position
|
|
|
|
|
|
Nasrat Hakim
|
|
53
|
|
President, Chief Executive Officer
|
|
|
|
|
|
Carter J. Ward
|
|
49
|
|
Chief Financial Officer, Secretary and Treasurer
|
|
|
|
|
|
Ashok G. Nigalaye
|
|
62
|
|
Chief Scientific Officer
|
For biographical information on Messrs.
Hakim and Nigalaye, please see “PROPOSAL No. 2: ELECTION OF SIX DIRECTORS; Information with Respect to Nominees” above.
Carter J. Ward has served as Chief Financial
Officer, Secretary and Treasurer of the Company since July 1, 2009. Prior to joining the Company, from July 2005 to April 2009,
Mr. Ward filled multiple finance and supply chain leadership roles with the Actavis Group and its U.S. subsidiary, Amide Pharmaceuticals.
From September 2004 to June 2005, Mr. Ward was a consultant, mainly engaged in improving internal controls and supporting Sarbanes
Oxley compliance of Centennial Communications Inc., a NASDAQ listed wireless communications provider. From 1999 to September
2004, Mr. Ward was the Chief Financial Officer for Positive Healthcare/Ceejay Healthcare, a U.S.-Indian joint venture engaged in
the manufacture and distribution of generic pharmaceuticals and nutraceuticals in India. Mr. Ward began his career as a certified
public accountant in the audit department of KPMG and is a Certified Supply Chain Professional (“CSCP”). Mr. Ward holds
a B.S. in Accounting from Long Island University, Brooklyn, NY, from where he graduated summa cum laude Mr. Ward’s
experience and expertise in the area of finance and more specifically, as a Certified Supply Chain Professional, provides the qualifications,
attributes and skills to serve as an officer for the Company.
EXECUTIVE COMPENSATION
COMPENSATION DISCUSSION
AND ANALYSIS SUMMARY
Our approach to executive compensation,
one of the most important and complex aspects of corporate governance, is influenced by our belief in rewarding people for consistently
strong execution and performance. We believe that the ability to attract and retain qualified executive officers and other key
employees is essential to our long-term success.
Compensation Linked to Attainment of
Performance Goals
Our plan to obtain and retain highly skilled
employees is to provide significant incentive compensation opportunities and market competitive salaries. The plan was intended
to link individual employee objectives with overall company strategies and results, and to reward executive officers and significant
employees for their individual contributions to those strategies and results. Furthermore, we believe that equity awards serve
to align the interests of our executives with those of our Shareholders. As such, equity is a key component of our compensation
program.
Role of the Compensation Committee
The Company formed the Compensation Committee
in June 2007. Since the formation of the Compensation Committee all elements of the executives’ compensation are determined
by the Compensation Committee, which is comprised of a two independent non-employee directors, and one director who is also the
Company’s Chief Scientific Officer. However, the Compensation Committee’s decisions concerning the compensation of
the Company’s Chief Executive Officer are subject to ratification by the independent directors of the Board of Directors.
As of the Record Date, the members of the Compensation Committee were Barry Dash, Ashok Nigalaye and Jeffrey Whitnell. The Committee
operates pursuant to a charter. Under the Compensation Committee charter, the Compensation Committee has authority to retain compensation
consultants, outside counsel, and other advisors that the committee deems appropriate, in its sole discretion, to assist it in
discharging its duties, and to approve the terms of retention and fees to be paid to such consultants. The Compensation Committee
did not engage any advisors
Named Executive Officers and Key Employees
The named executive officers and key employees
for the fiscal year ended March 31, 2013 were:
|
·
|
Jerry Treppel, Chief Executive Officer
for the full year
|
|
·
|
Chris C. Dick, President and Chief Operating
Officer for the full year
|
|
·
|
Carter J. Ward, Chief Financial Officer,
Secretary and Treasurer for the full year.
|
Please note that Chris C. Dick stepped
down from his positions as President and Chief Operating Officer in May 2013, Jerry Treppel resigned as Chief Executive Officer
on August 2, 2013, and Nasrat Hakim was named Chief Executive Officer on August 2, 2013. These individuals, other than for the
fiscal year ending March 31, 2013, including Mr. Hakim are referred to collectively in this Proxy Statement as the “Named
Executive Officers”.
OUR EXECUTIVE COMPENSATION PROGRAM
Overview
The primary elements of our executive compensation
program are base salary, incentive cash and stock bonus opportunities and equity incentives typically in the form of stock option
grants or payment of a portion of annual salary as stock. Although we provide other types of compensation, these three elements
are the principal means by which we provide the Named Executive Officers with compensation opportunities.
The annual bonus opportunity and equity
compensation components of the executive compensation program reflect our belief that a portion of an executive’s compensation
should be performance-based. This compensation is performance-based because payment is tied to the achievement of corporate performance
goals. To the extent that performance goals are not achieved, executives will receive a lesser amount of total compensation.
ELEMENTS OF OUR EXECUTIVE COMPENSATION
PROGRAM
Base Salary
We pay a base salary to certain of the
Named Executive Officers, with such payments being made in either cash, Common Stock or a combination of cash and Common Stock.
In general, base salaries for the Named Executive Officers are determined by evaluating the responsibilities of the executive’s
position, the executive’s experience and the competitive marketplace. Base salary adjustments are considered and take into
account changes in the executive’s responsibilities, the executive’s performance and changes in the competitive marketplace.
We believe that the base salaries of the Named Executive Officers are appropriate within the context of the compensation elements
provided to the executives and because they are at a level which remains competitive in the marketplace.
Bonuses
The Board of Directors may authorize us
to give discretionary bonuses, payable in cash or shares of Common Stock, to the Named Executive Officers and other key employees.
Such bonuses are designed to motivate the Named Executive Officers and other employees to achieve specified corporate, business
unit and/or individual, strategic, operational and other performance objectives.
Stock Options
Stock options constitute performance-based
compensation because they have value to the recipient only if the price of our Common Stock increases. Stock options for each of
the Named Executive Officers generally vest over time, obtainment of a corporate goal or a combination of the two.
The grant of stock options at Elite is
designed to motivate our Named Executive Officers to achieve our short-term and long-term corporate goals.
Retirement and Deferred Compensation
Benefits
We do not presently provide the Named Executive
Officers with a defined benefit pension plan or any supplemental executive retirement plans, nor do we provide the Named Executive
Officers with retiree health benefits. We have adopted a deferred compensation plan under Section 401(k) of the Code. The plan
provides for employees to defer compensation on a pretax basis subject to certain limits, however, Elite does not provide a matching
contribution to its participants.
The retirement and deferred compensation
benefits provided to the Named Executive Officers are not material factors considered in making other compensation determinations
with respect to Named Executive Officers.
Post-Termination/Change of Control
Compensation
Pursuant to his employment agreement, Nasrat
Hakim, our Chief Executive Officer, is entitled to a payment in an amount equal to two years base annual salary in effect upon
the date of termination, less applicable deductions and withholdings, payable in Common Stock upon a Change of Control (as defined
in the Hakim Employment Agreement). For more detailed information, please see
“
Agreements with Named Executive Officers”
below.
We do not presently provide any other Named
Executive Officer with any plan or arrangement in connection with any termination, including, without limitation, through retirement,
resignation, severance or constructive termination (including a change in responsibilities) of such Named Executive Officer’s
employment with the Company. We also do no presently provide any other Named Executive Officers any plan or arrangement in connection
with a change in control of the Company.
Perquisites
As described in more detail below, the
perquisites provided to certain of the Named Executive Officers consist of car allowances and life insurance premiums. These perquisites
represent a small fraction of the total compensation of each such Named Executive Officer. The value of the perquisites we provide
are taxable to the Named Executive Officers and the incremental cost to us of providing these perquisites is reflected in the Summary
Compensation Table. The Board of Directors believes that the perquisites provided are reasonable and appropriate. For more information
on perquisites provided to the Named Executive Officers, please see the “All Other Compensation” column of the Summary
Compensation Table and “Agreements with Named Executive Officers,” below.
COMPENSATION OF NAMED EXECUTIVE OFFICERS
Summary Compensation Table
Summary Compensation Table
Name
And
Principal
Position
|
|
Fiscal
Year
|
|
|
Salary
($)
|
|
|
Bonus
($)
|
|
|
Option
Awards
($)
|
|
|
All
Other
Compensation
($)
|
|
|
Total
($)
|
|
Jerry Treppel
(7)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Chairman of the Board and
|
|
|
2013
|
(1)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
30,000
|
(2)
|
|
|
30,000
|
|
Chief Executive Officer
|
|
|
2012
|
(1)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
30,000
|
(2)
|
|
|
30,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Chris Dick
(8)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
President and
|
|
|
2013
|
(1)
|
|
|
201,250
|
(3)
|
|
|
—
|
|
|
|
—
|
|
|
|
8,400
|
(4)
|
|
|
209,650
|
|
Chief Operating Officer
|
|
|
2012
|
(1)
|
|
|
200,000
|
(3)
|
|
|
—
|
|
|
|
—
|
|
|
|
8,400
|
(4)
|
|
|
208,400
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carter J. Ward
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Chief Financial Officer
|
|
|
2013
|
(1)
|
|
|
151,250
|
(5)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
151,250
|
|
Secretary and Treasurer
|
|
|
2012
|
(1)
|
|
|
150,000
|
(5)
|
|
|
600
|
(6)
|
|
|
—
|
|
|
|
—
|
|
|
|
150,600
|
|
|
(1)
|
Represents the fiscal years ended March 31, 2013 and 2012, respectively.
|
|
(2)
|
Represents compensation due to Mr. Treppel for his service as Chairman of the Board of Directors.
Mr. Treppel receives no salary or additional compensation for his service as Chief Executive Officer. Compensation due to Mr. Treppel
is paid via the issuance of Common Stock, pursuant to the Company’s Director compensation policy.
|
A total
of 284,662 shares of Common Stock were issued to Mr. Treppel in payment of compensation due to him for Fiscal 2012. A total of
202,998 shares of Common Stock were issued to, and 90,200 shares of Common Stock are due and owing to, Mr. Treppel in payment of
compensation due to him for Fiscal 2013.
|
(3)
|
Represents total salaries due to Mr. Dick pursuant to the Dick Employment. Of the total salary
amount, $175,000 was paid in cash as salary in accordance with the Company’s payroll practices, and $25,000 annually is to
be paid via the issuance of Common Shares in lieu of cash through December 31, 2012 and $30,000 annually is to be paid via the
issuance of Common Shares in lieu of cash since January 1, 2013. A total of 237,220 shares of Common Stock were issued to Mr. Dick
in payment of salaries due to him for Fiscal 2012. A total of 169,165 shares of Common Stock were issued to, and 90,200 shares
of Common Stock are due and owing to, Mr. Dick in payment of salaries due to him for Fiscal 2013.
|
|
(4)
|
Represents amounts paid for auto allowance
|
|
(5)
|
Represents total salaries due to Mr. Ward pursuant to the Ward Employment. Of the total salary
amount, $125,000 was paid in cash as salary in accordance with the Company’s payroll practices, and $25,000 is to be paid
annually via the issuance of Common Shares in lieu of cash through December 31, 2012 and $30,000 annually is to be paid via the
issuance of Common Shares in lieu of cash since January 1, 2013. A total of 237,220 shares of Common Stock were issued to Mr. Ward
in payment of salaries due to him for Fiscal 2012. A total of 169,165 shares of Common Stock were issued to, and 90,200 shares
of Common Stock are due and owing to, Mr. Ward in payment of salaries due to him for Fiscal 2013.
|
|
(6)
|
Represents discretionary bonuses award to Mr. Ward by the Chief Executive Officer
|
|
(7)
|
Mr. Treppel stepped down from his position as Chief Executive Officer in August 2013 and is currently
the Chairman of the Board of Directors.
|
|
(8)
|
Mr. Dick stepped down from his position as President and Chief Operating Officer in May 2013.
|
Agreements with Named Executive Officers
Nasrat Hakim
Although Mr. Hakim joined us after our
fiscal year ended March 31, 2013, he will be a Named Executive Officer during the current fiscal year ending March 31, 2014. Pursuant
to his August 2013 employment agreement (the “Hakim Employment Agreement”), Mr. Hakim receives an annual salary of
$350,000 per year. The Salary is paid in shares of the Company’s Common Stock pursuant to the Company’s current procedures
for paying Company executives in Stock. He also is entitled to an annual bonus equal to up to 100% of his annual salary (also payable
in stock) based upon his ability to meet certain Company milestones to be determined by the Company’s Board of Directors.
The Board may also award discretionary bonuses in its sole discretion. Mr. Hakim is entitled to employee benefits (e.g., health,
vacation, employee benefit plans and programs) consistent with other Company employees of his seniority and a car allowance. The
Hakim Employment Agreement contains confidentially, non-competition and other standard restrictive covenants.
Mr. Hakim’s employment is terminable
by the Company for cause (as defined in the Hakim Employment Agreement). The Hakim Employment Agreement also may be terminated
by the Company upon at least 30 days written notice due to disability (as defined in the Hakim Employment Agreement) or without
cause. Mr. Hakim can terminate the Hakim Employment Agreement by resigning, provided he gives notice at least 60 days prior to
the effective resignation date. If Mr. Hakim is terminated for cause or he resigns, he only is entitled to accrued and unpaid annual
salary, accrued vacation time and any reasonable and necessary business expenses, all through the date of termination and payable
in stock (“Basic Termination Benefits”). If Mr. Hakim is terminated because of disability or death, in addition to
Basic Termination Benefits, He is entitled his pro rata annual bonus through the date of termination (payable in Stock). If the
Company terminates Mr. Hakim without cause, In addition to Basic Termination Benefits, Mr. Hakim is entitled to his pro rata annual
bonus through the date of termination and an amount equal to two years’ annual salary (all payable in Stock).
Upon a Change of Control (as defined in
the Hakim Employment Agreement), Mr. Hakim is entitled to a payment in an amount equal to two years base annual salary in effect
upon the Date of Termination, less applicable deductions and withholdings, payable in Stock computed in the same manner as set
forth as the Salary.
Jerry Treppel
On December 1, 2008, Elite entered into
a compensation agreement with Mr. Treppel (the “First Treppel Agreement”) providing for the terms under which Mr. Treppel
will serve as the non-executive Chairman of the Board. Pursuant to the First Treppel Agreement, Mr. Treppel will serve as the non-executive
Chairman of the Board until immediately prior to the next annual meeting of the Company’s Shareholders; provided, however,
that following such annual meeting, and each subsequent annual meeting of the Company’s Shareholders, if the Board elects
Mr. Treppel as the non-executive Chairman of the Board, the term of the First Treppel Agreement will be extended through the earlier
of (a) the date of the next subsequent annual meeting of the Company’s Shareholders and (b) the date upon which Mr. Treppel
no longer serves as the non-executive Chairman.
During the term of the First Treppel Agreement,
including any applicable extensions thereof, Mr. Treppel is entitled to cash compensation of $2,083.33 on a monthly basis in lieu
of, and not in addition to, any cash directors’ fees and other compensation paid to other non-employee members of the Board.
Mr. Treppel is also entitled to reimbursement of any expenses reasonably incurred in the performance of his duties under the First
Treppel Agreement upon presentation of proper written evidence of such expenditures.
In addition, pursuant to the terms of the
First Treppel Agreement, Elite granted to Mr. Treppel under its 2004 Stock Option Plan non-qualified stock options to purchase
180,000 shares of Common Stock of Elite, par value $0.001 per share, exercisable for a period of 10 years at an exercise price
per share of $0.06, subject to the terms and conditions of the related option agreement.
Under the First Treppel Agreement, Elite
has also agreed to indemnify Mr. Treppel to the fullest extent permitted by law in accordance with the By-Laws of Elite against
(a) reasonable expenses, including attorneys’ fees, incurred by him in connection with any threatened, pending, or completed
civil, criminal, administrative, investigative, or arbitrative action, suit, or proceeding (and any appeal therein) seeking to
hold him liable for actions taken in his capacity as Chairman of the Board, and (b) reasonable payments made by him in satisfaction
of any judgment, money decree, fine (including assessment of excise tax with respect to an employee benefit plan), penalty or settlement
for which he may have become liable in any such action, suit or proceeding, provided that any such expenses or payments are not
the result of Mr. Treppel’s gross negligence, willful misconduct or reckless actions.
Either party may terminate the First Treppel
Agreement, effective immediately upon the giving of written notice to the other party. If no such written notice is given, then
the term of the First Treppel Agreement shall end immediately prior to the next annual meeting of the Company’s Shareholders
(the “Treppel Term”), provided however, that following such annual meeting, and each subsequent meeting of the Company’s
Shareholders, if the Board elects Mr. Treppel to continue to serve as the non-executive Chairman of the Board, the Treppel Term
shall be extended through the earlier of (a) the date of the next subsequent annual meeting of the Company’s Shareholders
and (b) the date upon which Mr. Treppel shall no longer serve as the non-executive Chairman of the Board.
On September 15, 2009, Mr. Treppel was
appointed Chief Executive Officer of the Company and he servied in that capacity until his resignation in August 2013. He continues
to serve as Chairman of the Board and he has agreed to forego any additional compensation related to his activities and Chief Executive
Officer. Accordingly, Mr. Treppel’s compensation as Chairman of the Board remains unchanged from the First Treppel Agreement.
On October 23, 2009, at the meeting of
the Board held immediately after the annual Shareholders meeting, Mr. Treppel’s compensation as Chairman of the Board was
revised to an annual amount of $30,000, payable in common shares of the Company. The amount of common shares to be issued to Mr.
Treppel in payment of compensation due to him as Chairman of the Board is calculated on a quarterly basis, and is equal to the
quotient of the quarterly amount due of $7,500, divided by the average daily closing price of the Company’s Common Stock
for the quarter just ended.
Mr. Treppel stepped down from his position
as Chief Executive Officer and was replaced by Mr. Nasrat Hakim in this position in August 2013. Mr. Treppel is currently the Chairman
of the Board of Directors.
Carter J. Ward
On November 12, 2009, the Company entered
into an employment agreement with Mr. Carter J. Ward (the “Ward Employment
Agreement
”). Pursuant to the terms
of the Ward Employment Agreement, Mr. Ward continues as an at-will employee of the Company as its Chief Financial Officer. Mr.
Ward receives a base salary of $150,000, with $125,000 of such amount being paid in accordance with the Company’s payroll
practices and $25,000 of such amount being paid by the issuance of restricted shares of Common Stock, in lieu of cash. The Common
Stock component of Mr. Ward’s compensation is to be computed on a quarterly basis, with the number of shares issued equal
to the quotient of the quarterly amount due of $6,250 divided by the average daily closing price of the Company’s Common
Stock for the quarter just ended.
The Board of Directors increased Mr. Ward’s
base salary to $155,000 retroactive to January 1, 2013. This $5,000 increase to be paid by the issuance of restricted shares of
Common Stock. The Common Stock component of Mr. Ward’s compensation is to be computed on a quarterly basis, with the number
of shares issued equal to the quotient of the quarterly amount due of $7,500 divided by the average daily closing price of the
Company’s Common Stock for the quarter just ended.
Mr. Ward’s compensation was adjusted,
effective January 1, 2014, to include a total compensation of $180,000, consisting of $150,000 being paid in accordance with the
Company’s payroll practices and $30,000 being paid by the issuance of restricted shares of Common Stock in lieu of cash.
The Common Stock component of Mr. Ward’s compensation is to be computed on a quarterly basis, with the number of shares issued
being equal to the quotient of the quarterly amount due of $7,500, divided by the average daily closing price of the Company’s
Common Stock for the quarter just ended.
Chris C. Dick
In November 13, 2009, we entered into an
employment agreement with Mr. Dick as our President and Chief Operating Officer (the “Dick Employment Agreement”).
The Dick Employment Agreement was terminable at the will of either the Company or Mr. Dick, with or without notice and for any
reason or no reason.
The Dick Employment Agreement provided
for a base salary of $200,000, with $175,000 of this amount being paid in cash and $25,000 of this amount being paid in restricted
shares of the Company’s Common Stock. The Common Stock component of Mr. Dick’s compensation was computed on a quarterly
basis, with the number of shares issued equal to the quotient of the quarterly amount due of $6,250 divided by the average daily
closing price of the Company’s Common Stock for the quarter just ended.
In addition, the Dick Employment Agreement
provided for 25 days of paid vacation, the right to participate in all health insurance plans maintained by the Company for its
employees, a monthly auto allowance of $700 and term life insurance in the amount of $500,000 payable to Mr. Dick’s estate.
The Dick Employment Agreement also required
Mr. Dick’s execution of a Proprietary Rights Agreement.
The Board of Directors of the Company increased
Mr. Dick’s base salary to $205,000 retroactive to January 1, 2013. This $5,000 increase to be paid in restricted shares of
the Company’s Common Stock. The Common Stock component of Mr. Dick’s compensation was to be computed on a quarterly
and pro-rata basis, with the number of shares issued equal to the quotient of the quarterly amount due of $7,500 divided by the
average daily closing price of the Company’s Common Stock for the quarter just ended.
Mr. Dick stepped down from his employment
with the Company on May 24, 2013 and accordingly, the Dick Employment Agreement was terminated. Mr. Dick continues to consult for
the Company.
Outstanding Equity Awards at March 31,
2013
Name
|
|
Number of
securities
underlying
unexercised
options
Exercisable
(#)
|
|
|
Number of
securities
underlying
unexercised
options
Unexercisable
(#)
|
|
|
Equity Incentive Plan
Awards:
Number of securities
underlying
unexercised
unearned options
(#)
|
|
|
Options
Exercise
Price
($)
|
|
|
Option
Expiration
Date
|
Chris Dick
(12)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,000
|
(1)
|
|
|
—
|
|
|
|
—
|
|
|
|
2.21
|
|
|
6/13/2013
|
|
|
|
10,000
|
(1)
|
|
|
—
|
|
|
|
—
|
|
|
|
2.21
|
|
|
6/13/2013
|
|
|
|
10,000
|
(1)
|
|
|
—
|
|
|
|
—
|
|
|
|
2.21
|
|
|
6/13/2013
|
|
|
|
40,000
|
(2)
|
|
|
—
|
|
|
|
—
|
|
|
|
2.80
|
|
|
7/14/2015
|
|
|
|
250,000
|
(3)
|
|
|
—
|
|
|
|
—
|
|
|
|
2.25
|
|
|
11/13/2016
|
|
|
|
—
|
|
|
|
—
|
|
|
|
150,000
|
(4)
|
|
|
2.25
|
|
|
11/13/2016
|
|
|
|
—
|
|
|
|
—
|
|
|
|
150,000
|
(4)
|
|
|
2.25
|
|
|
11/13/2016
|
|
|
|
—
|
|
|
|
—
|
|
|
|
200,000
|
(6)
|
|
|
2.25
|
|
|
11/13/2016
|
|
|
|
200,000
|
(7)
|
|
|
—
|
|
|
|
—
|
|
|
|
0.10
|
|
|
1/17/2020
|
|
|
|
|
|
|
|
—
|
|
|
|
150,000
|
(8)
|
|
|
0.12
|
|
|
6/19/2022
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jerry Treppel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
60,000
|
(9)
|
|
|
—
|
|
|
|
—
|
|
|
|
0.06
|
|
|
12/1/2018
|
|
|
|
60,000
|
(10)
|
|
|
—
|
|
|
|
—
|
|
|
|
0.06
|
|
|
12/1/2018
|
|
|
|
60,000
|
(11)
|
|
|
—
|
|
|
|
—
|
|
|
|
0.06
|
|
|
12/1/2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carter J. Ward
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
200,000
|
(7)
|
|
|
—
|
|
|
|
—
|
|
|
|
0.10
|
|
|
1/17/2020
|
|
|
|
|
|
|
|
—
|
|
|
|
150,000
|
(8)
|
|
|
0.12
|
|
|
6/19/2022
|
|
(1)
|
Options vested on June 13, 2004, 2005 and 2006, respectively.
|
|
(2)
|
Options vested on July 14, 2005.
|
|
(3)
|
Options vested on November 3, 2006.
|
|
(4)
|
These options vest upon the closing of an exclusive product license for the first of the United
States national market, the entire European Union market or the Japan market or product sale transaction of all of our ownership
rights in the United States (only once for each individual product) for our first Non-Generic Opioid Product.
|
|
(6)
|
These options vest as follows: upon the commencement of the first Phase III clinical trial relating
to the first “Non-Generic Opioid Product” developed by the Company as to 125,000 options and relating to the second
“Non-Generic Opioid Product” developed by the Company as to 75,000 options.
|
|
(7)
|
Total of 200,000 options granted with such options vesting in annual increments on January 18,
2011, 2012 and 2013, with each increment equal to one-third of the total options granted.
|
|
(8)
|
Total of 200,000 options granted with such options vesting in annual increments on June 19, 2013,
2014 and 2015, with each increment equal to one-third of the total options granted.
|
|
(9)
|
Options vested on December 1, 2009
|
|
(10)
|
Options vested on December 1, 2010
|
|
(11)
|
Options vest on December 1, 2011
|
|
(12)
|
Mr. Dick stepped down from his position with the Company in May 2013.
|
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
AND DIRECTOR INDEPENDENCE.
All related person transactions are reviewed
and, as appropriate, may be approved or ratified by the Board of Directors. If a Director is involved in the transaction, he or
she may not participate in any review, approval or ratification of such transaction. Related person transactions are approved by
the Board of Directors only if, based on all of the facts and circumstances, they are in, or not inconsistent with, our best interests
and the best interests of our Shareholders, as the Board of Directors determines in good faith. The Board of Directors takes into
account, among other factors it deems appropriate, whether the transaction is on terms generally available to an unaffiliated third-party
under the same or similar circumstances and the extent of the related person’s interest in the transaction. The Board of
Directors may also impose such conditions as it deems necessary and appropriate on us or the related person in connection with
the transaction.
In the case of a transaction presented
to the Board of Directors for ratification, the Board of Directors may ratify the transaction or determine whether rescission of
the transaction is appropriate.
Certain Related Person Transactions
Transactions with Nasrat Hakim
On August 1, 2013, Elite Laboratories Inc.
(“Elite Labs”), our wholly owned subsidiary, executed an asset purchase agreement (the “Mikah Purchase Agreement”)
with Mikah Pharma LLC (“Mikah”), an entity that is wholly owned by Mr. Nasrat Hakim, who, in conjunction with this
transaction, was appointed as our Chief Executive Officer, President and a Director on August 2, 2012, and acquired from Mikah
a total of 13 Abbreviated New Drug Applications (“ANDAs”) consisting of 12 ANDAs approved by the FDA and one ANDA under
active review with the FDA, and all amendments thereto (the “Acquisition”) for aggregate consideration of $10,000,000,
inclusive of imputed interest payable pursuant to a non-interest bearing, secured convertible note due in August 2016 (the “Mikah
Note”). The Mikah Note was amended on February 7, 2014 to make it convertible into shares of the Company’s Series I
Convertible Preferred Stock.
The Mikah Note, as amended, was interest
free and due and payable on the third anniversary of its issuance. Subject to certain limitations, the principal amount of the
Mikah Note was convertible at the option of Mikah into shares of Common Stock at a rate of $0.07 (approximately 14,286 shares per
$1,000 in principal amount), the closing market price of the Company’s Common Stock on the date that the asset purchase agreement
and Note were executed and/or into shares of the Company’s Series I Convertible Preferred Stock at the rate of 1 share of
Series I Preferred Stock for each $100,000 of principal owed on the Mikah Note. The conversion rate was adjustable for customary
corporate actions such as stock splits and, subject to certain exclusions, includes weighted average anti-dilution for common stock
transactions at prices below the then applicable conversion rate. Pursuant to a security agreement (the “Security Agreement”),
repayment of the Mikah Note was secured by the ANDAs acquired in the Acquisition.
On February 7, 2014, Mikah converted the
principal amount of $10,000,000, representing the entire principal balance due under the Mikah Note, into 100 shares of the Company’s
Series I Preferred Stock.
On October 15, 2013, Elite entered into
a bridge loan agreement (the “Hakim Credit Line Agreement”) with Mr. Hakim. Under the terms of the Hakim Credit Line
Agreement, Elite has the right, in its sole discretion to a line of credit (the “Hakim Credit Line”) in the maximum
principal amount of up to $1,000,000 at any one time. Mr. Hakim provided the Hakim Credit Line for the purpose of supporting the
acceleration of Elite’s product development activities. The outstanding amount is evidenced by a promissory note which shall
mature on June 30, 2015, at which time the entire unpaid principal balance, plus accrued interest thereon shall be due and payable
in full. Elite may prepay any amounts owed without penalty. Any such prepayments shall first be applied to interest due and owing
and then to principal. Interest only shall be payable quarterly on July 1, October 1, January 1 and April 1 of each year. Prior
to maturity or the occurrence of an Event of Default as defined in the Hakim Credit Line Agreement, the Company may borrow, repay
and reborrow under the Hakim Credit Line through maturity. Amounts borrowed under the Hakim Credit Line bear interest at the rate
of ten percent (10%) per annum.
For information about our employment agreement
with Mr. Hakim, please see “Executive Compensation-Agreements with Named Executive Officers” above.
Transactions with Jerry Treppel
On June 12, 2012 (the “Effective
Date”), we entered into a bridge loan agreement (the “Loan Agreement”) with Jerry Treppel, our Chairman and CEO.
Under the terms of the Loan Agreement, we have the right, in our sole discretion, to a line of credit (the “Credit Line”)
in the maximum principal amount of up to $500,000 at any one time. By amendment, the maximum principal amount was increased to
$1,000,000 in December 2012. Mr. Treppel provided the Credit Line for the purpose of supporting the acceleration of our product
development activities. The outstanding amount will be evidenced by a promissory note which shall mature on the earlier of (i)
such date as we raise at least $2,000,000 in gross proceeds from the sale of any of our equity securities or (ii) July 31, 2013,
at which time the entire unpaid principal balance plus accrued interest thereon shall be due and payable in full. We may prepay
any amounts owed without penalty. Any such prepayments shall first be attributable to interest due and owing and then to principal.
Interest only shall be payable quarterly on July 1, October 1, January 1 and April 1 of each year. Prior to maturity or the occurrence
of an Event of Default as defined in the Loan Agreement, we may borrow, repay, and reborrow under the Credit Line through maturity.
Amounts borrowed under the Credit Line will bear interest at the rate of ten percent (10%) per annum. As of March 31, 2013, the
principal balance owed under the Credit Line was $600,000 with an additional $13,151 in accrued interest also owed, in accordance
with the terms and conditions of the Credit Line.
On November 21, 2013, Mr. Treppel converted
the $600,000 unpaid balance into an unsecured convertible note (the “Treppel Note”). The Treppel Note was amended on
February 7, 2014 to make it convertible into shares of the Company’s Series I Preferred Stock. The Treppel Note, as amended,
was interest free and due and payable on the third anniversary of its issuance. Subject to certain limitations, the principal amount
of the Note was convertible at the option of Treppel on and after the first anniversary of the date of the Note into shares of
the Company’s Common Stock at a rate of $0.099 (approximately 10,101 shares per $1,000 in principal amount), the closing
market price of the Company’s Common Stock on the date that the Note was executed, and/or into shares of the Company’s
Series I Preferred Stock at a rate of 1 share of Series I Preferred Stock for each $141,442.7157 of principal owed on the Treppel
Note. The conversion rate was adjustable for customary corporate actions such as stock splits and, subject to certain exclusions,
includes weighted average anti-dilution for common stock transactions at prices below the then applicable conversion rate.
On February 7, 2014, Treppel converted
the principal amount of $600,000, representing the entire principal balance due under the Treppel Note into 4.242 shares of the
Company’s Series I Preferred Stock.
For information about our employment agreement
with Mr. Treppel, please see “Executive Compensation-Agreements with Named Executive Officers” above.
Transactions with Epic Pharma LLC and
Epic Investments LLC
On March 18, 2009, the Company entered
into the Epic Strategic Alliance Agreement with Epic Pharma, LLC and Epic Investments, LLC, a subsidiary controlled by Epic Pharma
LLC. Ashok G. Nigalaye, Jeenarine Narine and Ram Potti, each were elected as members of our Board of Directors, effective June
24, 2009, as the three directors that Epic is entitled to designate for appointment to the Board pursuant to the terms of the Epic
Strategic Alliance Agreement. Messrs. Nigalaye, Narine and Potti are also officers of Epic Pharma, LLC, in the following capacities:
|
•
|
Mr. Nigalaye, Chairman and Chief Executive Officer of
Epic Pharma, LLC;
|
|
•
|
Mr. Narine, President and Chief Operating Officer of
Epic Pharma, LLC;
|
|
•
|
Mr. Potti, Vice President of Epic Pharma, LLC.
|
The Strategic Alliance Agreement expired
on June 4, 2012.
On December 31, 2012, Mr. Potti resigned
as a Director of the Company. His seat on the Board of Directors was not filled.
As part of the operation of the strategic
alliance, the Company and Epic identified areas of synergy, including, without limitation, raw materials used by both entities,
equipment purchases, contract manufacturing/packaging and various regulatory and operational resources existing at Epic that could
be utilized by the Company.
With regards to synergies related to raw
materials usage, the strategic alliance allowed the Company to purchase such raw materials from Epic, at the Epic acquisition cost,
without markup. In all cases, the acquisition cost of Epic was lower than those costs available to the Company, mainly as a result
of efficiencies of scale generated by significantly larger volumes purchased by Epic during the course of their normal operations.
During the fiscal years ended March 31, 2013 and March 31, 2012, an aggregate amount of $71,480 and $15,552, respectively, in such
materials was purchased from Epic Pharma LLC. All purchases were at Epic Pharma’s acquisition cost, without markup and evidenced
by supporting documents of Epic Pharma LLC’s acquisition cost.
With regards to synergies related to regulatory
and operational resources, the strategic alliance allowed the Company to utilize Epic’s substantial resources and technical
competencies on an “as needed” basis at a cost equal to Epic’s actual cost for only the resources utilized by
the Company. Without such access to Epic’s resources, the Company would have to invest significant amounts in human resources
and fixed assets as well as incur substantial costs with third party providers to provide the same resources provided by Epic and
necessary for the operations of the Company.
During the fiscal years ended March 31,
2013 and March 31, 2012, an aggregate amount of $31,354 and $133,003, respectively, was paid to Epic as reimbursement for costs
associated with facility maintenance, engineering and regulatory resources utilized by the Company.
During the fiscal years ended March 31,
2013 and March 31, 2012, the Company incurred a total of $362,347 and $275,768, respectively in contract manufacturing and/or packaging
costs for the Company’s Phentermine, Hydromorphone, Methadone and Immediate Release Lodrane products.
During the fiscal years ended March 31,
2013 and 2012, equipment purchases from Epic totaled $-0- and $52,000, respectively.
Total purchases from Epic by the Company
during the fiscal years ended March 31, 2013 and 2012 were $465,181 and $476,323, respectively.
On October 2, 2013, we executed a Manufacturing
and License Agreement (“M&L Agreement”) with Epic Pharma LLC. (“Epic”), to manufacture, market and
sell in the United States and Puerto Rico 12 generic products owned by Elite. Of the 12 products, Epic will have the exclusive
right to market six products as listed in Schedule A of the M&L Agreement, and a non-exclusive right to market six products
as listed in Schedule D of the M&L Agreement. Epic is responsible for all regulatory and pharmacovigilance matters related
to the products and for all costs related to the site transfer for all products. Pursuant to the M&L Agreement, Elite will
receive a license fee and milestone payments. The license fee will be computed as a percentage of the gross profit, as defined
in the M&L Agreement, earned by Epic as a result of sales of the products. The manufacturing cost used for the calculation
of the license fee is a predetermined amount per unit plus the cost of the drug substance (API) and the sales cost for the calculation
is predetermined based on net sales. If Elite manufactures any product for sale by Epic, then Epic shall pay that same predetermined
manufacturing cost per unit plus the cost of the API. The license fee is payable monthly for the term of the M&L Agreement.
Epic shall pay to Elite certain milestone payments as defined by the M&L Agreement. The first milestone payment was due on
or before November 15, 2013 and has been paid. Subsequent milestone payments are due upon the filing of each product’s supplement
with the U.S. Food and Drug Administration (“FDA”) and the FDA approval of site transfer for each product as specifically
itemized in the M&L Agreement. The term of the M&L Agreement is five years and may be extended for an additional five years
upon mutual agreement of the parties. Twelve months following the launch of a product covered by the M&L Agreement, Elite may
terminate the marketing rights for any product if the license fee paid by Epic falls below a designated amount for a six month
period of that product. Elite may also terminate the exclusive marketing rights if Epic is unable to meet the annual unit volume
forecast for a designated Product group for any year, subject to the ability of Epic, during the succeeding six month period, to
achieve at least one-half of the prior year’s minimum annual unit volume forecast. The M&L Agreement may be terminated
by mutual agreement of Elite and Epic, as a result of a breach by either party that is not cured within 60 days notice of the breach
or by Elite as a result of Epic becoming a party to a bankruptcy, reorganization or other insolvency proceeding that continues
for a period of 30 days or more.
DEADLINE FOR SHAREHOLDER PROPOSALS FOR
THE 2015 MEETING
The Company does not currently provide
a formal process for Shareholders to present proposals or for possible inclusion in the Company’s proxy materials for presentation
at the next annual meeting of Shareholders.
You may submit proposals on matters appropriate
for shareholder action at future annual meetings by following the rules of the SEC and the requirements of our Amended and Restated
Bylaws. We must receive proposals intended for inclusion in next year’s proxy statement and proxy card no later than May
8, 2015. Any such proposal when submitted must be in full compliance with applicable law, including Rule 14a-8 of the Exchange
Act, and our Amended and Restated Bylaws.
Additionally, our Amended and Restated
By-Laws permit shareholders to propose business to be considered and to nominate Directors for election by the shareholders at
future annual meetings. To propose business or to nominate a Director for our 2015 Annual Meeting of Shareholders not for inclusion
in next year’s proxy statement and proxy card, the shareholder must deliver notice between January 22, 2015 and February
20, 2015 setting forth the information required to be included in such notice under our Amended and Restated Bylaws. Any such proposal
or nomination when submitted must be in full compliance with our Amended and Restated Bylaws.
On March 17, 2014, the Board of Directors
adopted certain amendments (including with respect to our advance notice requirements) to our Amended and Restated Bylaws as disclosed
in our Current Report on Form 8-K, filed with the SEC on March 18, 2014. Please refer to that Form 8-K for a summary of the material
amendments to the Amended and Restated Bylaws and to Exhibit 3.1 thereto for the full text of our Amended and Restated Bylaws.
Shareholders interested in submitting such
a proposal are advised to contact knowledgeable legal counsel with regard to the detailed requirements of applicable securities
laws.
If a Shareholder gives notice of a proposal
or a nomination after the applicable deadline specified above, the notice will not be considered timely, and the Shareholder will
not be permitted to present the proposal or the nomination to the Shareholders for a vote at the meeting.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and
other information with the SEC under the Securities Exchange Act of 1934, as amended. The SEC maintains an Internet world wide
web site that provides access, without charge, to reports, proxy statements and other information about issuers, like Elite, who
file electronically with the SEC. The address of that site is
http://www.sec.gov
.
You also may obtain copies of these materials
by mail from the Public Reference Section of the Securities and Exchange Commission, 100 F Street, N.E., Room 1580 Washington,
D.C, 20549, at prescribed rates. These materials are also available from the SEC in person at any one of its public reference rooms.
Please call the SEC at l-800-SEC-0330 for further information on its public reference rooms. You may read and copy this information
at the following location of the SEC:
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Public Reference Room
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100 F Street, N.E.
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Room 1580
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Washington, D.C. 20549
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You can also obtain, without charge, reports,
proxy statements and other information, including without limitation, any information we may incorporate by reference herein, about
the Company, by contacting: Elite Pharmaceuticals, Inc., 165 Ludlow Avenue, Northvale, New Jersey 07647, Attn: Corporate Secretary,
telephone: (201) 750-2646, facsimile: (201) 750-2755.
OTHER MATTERS
We have not received notice of and do not
expect any matters to be presented for a vote at the meeting, other than the proposals described in this Proxy Statement. If you
grant a proxy, the person(s) named as proxy holder, or their nominee or substitute, will have the discretion to vote your shares
on any additional matters properly presented for a vote at the meeting. If for any unforeseen reason, any of our nominees for director
are not available, the proxy holder will vote your proxy for such other candidate or candidates nominated by the Board of Directors.
Unless contrary instructions are indicated
in a proxy, all shares of common stock and series I preferred stock represented by valid proxies received pursuant to this solicitation
(and not revoked before they are voted) will be voted FOR the election of all Directors nominated, FOR Proposal No. 2, FOR Proposal
No. 3 FOR Proposal No. 4, FOR “Three Years” in Proposal No. 5 and FOR Proposal No. 6.
April 3, 2014
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By Order of the Board of Directors
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Carter Ward, Secretary
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SHAREHOLDERS ARE URGED TO VOTE BY INTERNET,
BY TELEPHONE OR BY SIGNING
AND RETURNING THE ENCLOSED PROXY IN THE ENCLOSED ENVELOPE.
APPENDIX A
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ROSS MILLER
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4520
(775) 684-5708
Website: www.nvsos .gov
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Certificate
of Amendment
(PURSUANT TO NRS 78.385 AND 78.390)
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USE BLACK INK ONLY ·DO
NOT HIGHLIGHT
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ABOVE SPACE
IS FOR OFFICE USE ONLY
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Certificate of Amendment
to Articles of Incorporation For Nevada Profit Corporations
(Pursuant to NRS 78.385
and 78.390 - After Issuance of Stock)
1. Name of corporation :
ELITE PHARMACEUTICALS, INC.
2. The articles have been amended as follows:
(provide article numbers, if available)
Article IV, Section 4.1 is
amended and, as amended, reads as follows:
"4.1.
Authorized Capital Stock. The aggregate number of shares which this Corporation shall have authority to issue is Nine Hundred
Ninety Five Million Fifteen Thousand (995,015,000) shares, consisting of (a) Nine Hundred Ninety Five Million, (995,000,000) shares
of Common Stock, par value $0.001 per share (the “Common Stock”) and (b) Fifteen Thousand, (15,000) shares of Preferred
Stock, par value $0.01 per share (the “Preferred Stock”), issuable in one or more series as hereinafter provided.
A description of the classes of shares and a statement of the number of shares in each class and the relative rights, voting power,
and preferences granted to and restrictions imposed upon the shares of each class are as follows:"
3.
The vote by which the stockholders holding shares in the corporation entitling them to exercise at least a majority of the voting
power , or such greater proportion of the voting power as may be required in the case of a vote by classes or series , or as may
be required by the provisions of the articles of incorporation* have voted in favor of the amendment is:
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4. Effective date and time of filing : (optional)
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Date:
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Time:
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(must not be later than
90 days after the certificate is filed)
5. Signature: (required)
Signature of Officer
*If any proposed amendment would alter
or change any preference or any relative or other right given to any class or series of outstanding shares, then the amendment
must be approved by the vote, in addition to the affirmative vote otherwise required, of the holders of shares representing a
majority of the voting power of each class or series affected by the amendment regardless to limitations or restrictions on the
voting power thereof .
IMPORTANT: Failure to
include any of the above information and submit with the proper fees may cause this filing to be rejected
Nevada Secretary or State Amend Profit-After
This form must be accompanied
by appropriate fees
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Revised: 11-27-13
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APPENDIX
B
ELITE
PHARMACEUTICALS, INC.
2014 EQUITY INCENTIVE PLAN
SECTION 1
INTRODUCTION
1.1 Establishment.
Elite Pharmaceuticals, Inc. hereby establishes the Elite Pharmaceuticals, Inc. 2014 Equity Incentive Plan (the “Plan”)
for certain officers, employees, consultants, and directors of the Company.
1.2 Purposes.
The purposes of the Plan are to provide the officers, employees, consultants, and directors of the Company selected for participation
in the Plan with added incentives to continue in the long-term service of the Company and to create in such persons a more direct
interest in the future success of the operations of the Company by relating incentive compensation to increases in shareholder
value, so that the income of such persons is more closely aligned with the income of the Company’s shareholders. The Plan
is also designed to enhance the ability of the Company to attract, retain and motivate officers, employees, consultants, and directors
by providing an opportunity for investment in the Company.
SECTION 2
DEFINITIONS
2.1 Definitions.
The following terms shall have the meanings set forth below:
(a) “Administrator”
means (i) the Board, or (ii) one or more committees of the Board or another committee (within its delegated authority) to whom
the Board or such committee has delegated all or part of its authority under this Plan. Any committee under clause (ii) hereof
which makes grants to “officers” of the Company (as that term is defined in Rule 16a-1(f) promulgated under the Exchange
Act) shall be composed of not less than the minimum number of persons from time to time required by Rule 16b-3, each of whom, to
the extent necessary to comply with Rule 16b-3 only, shall be a Non-Employee Director. Further, if the Administrator consists of
less than the entire Board, then to the extent necessary for any Award to qualify as “performance-based compensation”
within the meaning of Section 162(m) of the Internal Revenue Code, each member of the Administrator will be an Outside Director.
To the extent required by any applicable stock exchange, this Plan shall be administered by a committee composed entirely of independent
directors (within the meaning of the applicable stock exchange). For purposes of the preceding provisions, if one or more members
of the Administrator is not a Non-Employee or not an Outside Director, but recuses himself or herself or abstains from voting with
respect to a particular action taken by the Administrator, then the Administrator, with respect to the action, will be deemed to
consist only of the members of the Administrator who have not recused themselves or abstained from voting.
(b) “Affiliated
Entity” means (i) any corporation or other entity (including but not limited to a partnership) that directly, or through
one or more intermediaries controls, is controlled by, or is under common control with, Elite Pharmaceuticals, Inc., or (ii) any
entity in which the Company has a significant equity interest, as determined by the Administrator.
(c) “Award”
means a grant made under this Plan in the form of Options, Stock Appreciation Rights, unrestricted Stock, Restricted Stock, Performance
Shares, or Performance Units.
(d) “Award
Holder” has the meaning set forth in Section 3.4.
(e) “Award
Agreement” means a written document delivered by the Company to the recipient of an Award specifying the terms of such Award.
Such document must specify, at a minimum, the number of Shares subject to the Award, and to the extent applicable, the exercise
price, vesting schedule, restrictions, performance targets, and with respect to Options and Stock Appreciation Rights, any terms
which vary from the default provisions provided in the Plan. Such document need not be signed by the Award recipient.
(f) “Board”
means the board of directors of the Company.
(g) “Company”
means Elite Pharmaceuticals, Inc., a Nevada corporation, together with its Affiliated Entities except where the context otherwise
requires.
(h) “Consultant”
means any person, including an advisor, engaged by the Company to render consulting or advisory services and who is compensated
for such services and such person is eligible to receive shares registered on Form S-8 under the Securities Act. Mere service as
a Director or payment of a director’s fee by the Company or an Affiliated Entity shall not be sufficient to constitute “consulting
or advisory services” rendered to the Company or an Affiliated Entity.
(i) “Covered
Employee” has the meaning set forth in Section 162(m)(3) of the Internal Revenue Code.
(j) “Director”
means a member of the Board.
(k) “Effective
Date” means March 17, 2014.
(l) “Employee”
means any person who is a full or part-time employee (including, without limitation, an officer or director who is also an employee)
of the Company or any Affiliated Entity or any division thereof. The term also includes future employees who have received a formal
offer of employment.
(m) “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended.
(n) “Executive
Officer” shall mean an officer as defined in Exchange Act Rule 16a-1(f) and any person deemed to be an “executive officer”
within the scope of Section 13(k) of the Exchange Act.
(o) “Exercise
Period” means the period of time within which an Option or Stock Appreciation Right must be exercised.
(p) “Exercise
Price” means the price at which Shares subject to an Award may be purchased.
(q) “Fair
Market Value” means, as of any date, the value of the Stock determined as follows:
(i) If the
Stock is listed on any established stock exchange, its Fair Market Value shall be the closing sales price for such Stock as quoted
on such exchange for the last market trading day prior to the time of determination (or, if there are no actual sales of such Stock
on such date, the latest sales price of such Stock preceding such date);
(ii) If
the Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value of a
Share shall be the mean between the high bid and low asked prices for the Stock on the last market trading day prior to the time
of determination, as reported in The Wall Street Journal or such other source as the Administrator deems reliable;
(iii) In
the absence of an established market for the Stock, the Fair Market Value shall be determined in good faith by the Administrator
by the reasonable application of a reasonable valuation method in accordance with Section 409A of the Internal Revenue Code and
the regulations thereunder.
(r) “Incentive
Stock Option” means any Option designated as such and granted in accordance with the requirements of Section 422 of the Internal
Revenue Code.
(s) “Internal
Revenue Code” means the Internal Revenue Code of 1986, as it may be amended from time to time, and the rules and regulations
promulgated thereunder.
(t) “Non-Employee
Director” means a Director who is a “non-employee director” within the meaning of Rule 16b-3 promulgated under
the Exchange Act.
(u) “Non-Statutory
Option” means any Option other than an Incentive Stock Option.
(v) “Option”
means a right to purchase Stock at a stated price for a specified period of time.
(w) “Outside
Director” means a Director who is an “outside director” within the meaning of Internal Revenue Code Section 162(m).
(x) “Participant”
means an Employee or Director of, or Consultant to, the Company designated by the Administrator from time to time during the term
of the Plan to receive one or more Awards under the Plan.
(y) “Performance
Cycle” means the period of time as specified by the Administrator over which Performance Share or Performance Units are to
be earned.
(z) “Performance
Shares” means an Award made pursuant to Section 9 which entitles a Participant to receive Shares, their cash equivalent or
a combination thereof based on the achievement of performance targets during a Performance Cycle.
(aa) “Performance
Units” means an Award made pursuant to Section 9 which entitles a Participant to receive cash, Stock or a combination thereof
based on the achievement of performance targets during a Performance Cycle.
(bb) “Plan
Year” means each 12-month period beginning April 1 and ending the following September 30, except that for the first year
of the Plan it shall begin on the Effective Date and extend to September 30 of that year.
(cc) “Qualifying
Awards” means Options and Stock Appreciation Rights granted with an Exercise Price of not less than the Fair Market Value
of a share of Stock on the date of grant.
(dd) “Restricted
Stock” means Stock granted under Section 8 that is subject to restrictions imposed pursuant to such Section.
(ee) “Service
Provider” means an Employee or Director of, or Consultant to, the Company or an Affiliated Entity.
(ff) “Share”
means a share of Stock.
(gg) “Stock”
means the common stock, $.001 par value, of the Company.
(hh) “Stock
Appreciation Right” means the right pursuant to an Award granted under Section 7 to receive, upon exercise, an amount payable
in cash or Shares equal to the number of Shares with respect to which the Stock Appreciation Right is being exercised multiplied
by the excess of (i) the Fair Market Value of a Share on the date the Award is exercised, over (ii) the Exercise Price specified
in the Award Agreement.
2.2 Gender
and Number. Except when otherwise indicated by the context, the masculine gender shall also include the feminine gender, and the
definition of any term herein in the singular shall also include the plural
SECTION 3
PLAN ADMINISTRATION
3.1 Authority
of Administrator. The Plan shall be administered by the Administrator. Subject to the terms of the Plan and applicable law, and
in addition to other express powers and authorizations conferred on the Administrator by the Plan, the Administrator shall have
full power and authority to: (i) designate Participants; (ii) determine the type or types of Awards to be granted to eligible Participants;
(iii) determine the number of Shares to be covered by, or with respect to which payments, rights, or other matters are to be calculated
in connection with, Awards; (iv) determine the terms and conditions of any Award; (v) determine whether, to what extent, and under
what circumstances Awards may be settled or exercised in cash, Shares, other securities, other Awards or other property, or canceled,
forfeited, or suspended and the method or methods by which Awards may be settled, exercised, canceled, forfeited, or suspended;
(vi) determine whether, to what extent, and under what circumstances cash, Shares, other securities, other Awards, other property,
and other amounts payable with respect to an Award shall be deferred either automatically or at the election of the holder thereof
or of the Administrator; (vii) subject to the limitations in Sections 6 and 15, to make any adjustment in the Exercise Price, the
number of Shares subject to, or the terms of, an outstanding Award by amendment, substitution, or regrant, provided that if the
amendment, substitution, or regrant effects a repricing (which shall not include adjustments contemplated by Sections 4 and 11),
shareholder approval shall be required before repricing is effective; (viii) determine whether, to what extent, and under what
circumstances to accelerate the exercisability of any Award or the end of a Performance Cycle or the termination of the restriction
period for any Restricted Stock Award; (ix) correct any defect, supply any omission, reconcile any inconsistency and otherwise
interpret and administer the Plan and any instrument or agreement relating to the Plan or any Award hereunder; (x) establish, amend,
suspend, or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration
of the Plan; and (xi) make any other determination and take any other action that the Administrator deems necessary or desirable
for the administration of the Plan. To the extent necessary or appropriate, the Administrator may adopt sub-plans consistent with
the Plan to conform to applicable state or foreign securities or tax laws.
3.2 Determinations
Under the Plan. Unless otherwise expressly provided in the Plan all designations, determinations, interpretations, and other decisions
under or with respect to the Plan or any Award shall be within the sole discretion of the Administrator, may be made at any time
and shall be final, conclusive, and binding upon all persons, including the Company, any Affiliated Entity, any Participant, any
holder or beneficiary of any Award, and any shareholder. No member of the Administrator shall be liable, in the absence of bad
faith, for any act or omission with respect to his or her services as an Administrator. Service on a committee acting as the Administrator
shall constitute service as a director of the Company entitling members to any indemnification of liability benefits applicable
to directors with respect to their services as Administrator.
3.3 Delegation
of Certain Responsibilities. The Administrator may, in its sole discretion, delegate to appropriate officers of the Company the
administration of the Plan under this Section 3; provided, however, that no such delegation by the Administrator shall be made
(i) if such delegation would not be permitted under applicable law or (ii) with respect to the administration of the Plan as it
affects Executive Officers, Covered Employees, or Directors of the Company, and provided further that the Administrator may not
delegate its authority to correct errors, omissions or inconsistencies in the Plan. Subject to the above limitations, the Administrator
may delegate to the Chief Executive Officer of the Company its authority under this Section 3 to grant Awards to employees who
are not Executive Officers, Covered Employees, or Directors of the Company. All authority delegated by the Administrator under
this Section 3.3 shall be exercised in accordance with the provisions of the Plan and any guidelines for, conditions on, or limitations
to the exercise of such authority that may from time to time be established by the Administrator.
3.4 Award
Agreement. Each Award granted under the Plan shall be evidenced by an Award Agreement which shall be delivered to the Participant
to whom the Award is granted (the “Award Holder”).
3.5 Date
of Grant. An Award shall be considered as having been granted on the date specified in the grant resolution of the Administrator.
SECTION 4
STOCK SUBJECT TO THE PLAN
4.1 Number
of Shares. Subject to adjustment as provided in Section 4.3, Three Million (3,000,000) Shares are initially authorized for issuance
under the Plan in accordance with the provisions of the Plan and subject to such restrictions or other provisions as the Administrator
may from time to time deem necessary. Subject to adjustment as provided in Section 4.3, no Participant may be granted Awards in
any twelve-month period with respect to more than One Million (1,000,000) Shares. If an Award is to be settled in cash, the number
of Shares on which the Award is based shall not count toward the individual share limit set forth in this Section 4.1. The Shares
may be divided among the various Plan components as the Administrator shall determine, except that no more than Three Million (3,000,000)
Shares as calculated pursuant to Section 4.2 shall be cumulatively available for the grant of Incentive Stock Options under the
Plan. Shares which may be issued upon the vesting or exercise of Awards shall be applied to reduce the maximum number of Shares
remaining available for use under the Plan. The Company shall at all times during the term of the Plan and while any Awards are
outstanding retain as authorized and unissued Stock, or as treasury Stock, at least the number of Shares from time to time required
under the provisions of the Plan, or otherwise assure itself of its ability to perform its obligations hereunder.
4.2 Unused
and Forfeited Stock. Any Shares that are subject to an Award under this Plan which are not used because the terms and conditions
of the Award are not met, including any Shares that are subject to an Award which expires or is terminated for any reason, any
Shares which are used for full or partial payment of the purchase price of Shares with respect to which an Award is exercised and
any Shares retained by the Company pursuant to Section 16.2 shall automatically become available for use under the Plan. Notwithstanding
the foregoing, any Shares used for full or partial payment of the purchase price of the Shares with respect to which an Award is
exercised and any Shares retained by the Company pursuant to Section 16.2 that were originally Incentive Stock Option Shares shall
still be considered as having been granted for purposes of determining whether the Share limitation provided for in Section 4.1
has been reached for purposes of Incentive Stock Option grants.
4.3 Adjustments
for Stock Split, Stock Dividend, etc. If the Company shall at any time increase or decrease the number of its outstanding Shares
of Stock or change in any way the rights and privileges of such Shares by means of the payment of a stock dividend or any other
distribution upon such Shares payable in Stock, or through a stock split, subdivision, consolidation, combination, reclassification
or recapitalization involving the Stock, then in relation to the Stock that is affected by one or more of the above events, the
numbers, rights and privileges of (i) the Shares of Stock as to which Awards may be granted under the Plan, and (ii) the Shares
of Stock then included in each outstanding Award granted hereunder, shall be increased, decreased or changed in like manner as
if they had been issued and outstanding, fully paid and nonassessable at the time of such occurrence.
4.4 Dividend
Payable in Stock of Another Corporation, etc. Except as set forth in Section 4.5 below, if the Company shall at any time pay or
make any dividend or other distribution upon the Stock payable in securities of another corporation or other property (except money
or Stock), a proportionate part of such securities or other property shall be set aside and delivered to any Participant then holding
an Award for the particular type of Stock for which the dividend or other distribution was made, upon exercise thereof or vesting
thereof, as applicable. Prior to the time that any such securities or other property are delivered to a Participant in accordance
with the foregoing, the Company shall be the owner of such securities or other property and shall have the right to vote the securities,
receive any dividends payable on such securities, and in all other respects shall be treated as the owner. If securities or other
property which have been set aside by the Company in accordance with this Section are not delivered to a Participant because an
Award is not exercised or otherwise vested, then such securities or other property shall remain the property of the Company and
shall be dealt with by the Company as it shall determine in its sole discretion.
4.5 Spin-offs.
If the Company shall at any time pay or make any dividend or other distribution upon the Stock in the nature of a spin-off, for
example a dividend payable in securities of an Affiliated Entity, the Administrator shall in its discretion determine what changes
are equitably required to outstanding Awards to effect the spin-off, including but not limited to treating Awards of Employees
remaining with the Company differently from Awards to Employees of the newly spun-off entity, substituting Awards for Company Stock
for Awards of stock in the spun-off entity, and allowing either the Company, the spun-off entity or both to hold the securities
or property set aside for Award participants.
4.6 Other
Changes in Stock. In the event there shall be any change, other than as specified in Sections 4.3, 4.4 and 4.5, in the number or
kind of outstanding shares of Stock or of any stock or other securities into which the Stock shall be changed or for which it shall
have been exchanged, and if the Administrator shall in its discretion determine that such change equitably requires an adjustment
in the number or kind of Shares subject to outstanding Awards or which have been reserved for issuance pursuant to the Plan but
are not then subject to an Award, then such adjustments shall be made by the Administrator and shall be effective for all purposes
of the Plan and on each outstanding Award that involves the particular type of stock for which a change was effected.
4.7 General
Adjustment Rules. If any adjustment or substitution provided for in this Section 4 shall result in the creation of a fractional
Share under any Award, the Company shall, in lieu of selling or otherwise issuing such fractional Share, pay to the Participant
a cash sum in an amount equal to the product of such fraction multiplied by the Fair Market Value of a Share on the date the fractional
Share would otherwise have been issued. In the case of any such substitution or adjustment affecting an Award with an Exercise
Price, the total Exercise Price for the shares of Stock then subject to the Award shall remain unchanged but the Exercise Price
per share under each such Award shall be equitably adjusted by the Administrator to reflect the greater or lesser number of shares
of Stock or other securities into which the Stock subject to the Award may have been changed.
4.8 Determination
by Administrator. Adjustments under this Section 4 shall be made by the Administrator, whose determinations with regard thereto
shall be final and binding upon all persons.
SECTION 5
PARTICIPATION
Participants in the
Plan shall be those Employees, Directors, or Consultants who, in the judgment of the Administrator, are performing, or during the
term of their incentive arrangement will perform, important services in the management, operation and development of the Company,
and significantly contribute, or are expected to significantly contribute, to the achievement of long-term corporate economic objectives.
Participants may be granted from time to time one or more Awards; provided, however, that the grant of each such Award shall be
separately approved by the Administrator, receipt of one such Award shall not result in automatic receipt of any other Award, and
written notice shall be given to such person, specifying the terms, conditions, rights and duties related thereto; and further
provided that Incentive Stock Options shall not be granted to (i) Consultants, (ii) part-time employees, (iii) Non-Employee Directors,
or (iv) Employees of any partnership or other entity which is included within the definition of an Affiliated Entity but whose
employees are not permitted to receive Incentive Stock Options under the Internal Revenue Code. Each Participant shall enter into
an agreement with the Company, in such form as the Administrator shall determine and which is consistent with the provisions of
the Plan, specifying such terms, conditions, rights and duties. Awards shall be deemed to be granted as of the date specified in
the grant resolution of the Administrator, which date shall be the date of any related agreement with the Participant. In the event
of any inconsistency between the provisions of the Plan and any such agreement entered into hereunder, the provisions of the Plan
shall govern.
SECTION 6
STOCK OPTIONS TO EMPLOYEES AND CONSULTANTS
6.1 Grant
of Options to Employees and Consultants. Coincident with or following designation for participation in the Plan, a Participant
(other than a Non-Employee Director) may be granted one or more Options. The Administrator in its sole discretion shall designate
whether an Option is to be considered an Incentive Stock Option or a Non-Statutory Option. The Administrator may grant both an
Incentive Stock Option and a Non-Statutory Option to the same Participant at the same time or at different times. Incentive Stock
Options and Non-Statutory Options, whether granted at the same or different times, shall be deemed to have been awarded in separate
grants, shall be clearly identified, and in no event shall the exercise of one Option affect the right to exercise any other Option
or affect the number of Shares for which any other Option may be exercised.
6.2 Option
Agreements. Except as otherwise set forth in an Award Agreement delivered to the Participant, each Option shall be governed by
the following terms and conditions, as well as such other terms and conditions not inconsistent therewith as the Administrator
may consider appropriate in each case.
(a) Number
of Shares. Each Award Agreement shall state that it covers a specified number of Shares, as determined by the Administrator. To
the extent that the aggregate Fair Market Value of Shares with respect to which Options designated as Incentive Stock Options are
exercisable for the first time by any Participant during any year (under all plans of the Company and any Affiliated Entity) exceeds
$100,000, such Options shall be treated as not being Incentive Stock Options. The foregoing shall be applied by taking Options
into account in the order in which they were granted. For the purposes of the foregoing, the Fair Market Value of any Share shall
be determined as of the time the Option with respect to such Share is granted. In the event the foregoing results in a portion
of an Option designated as an Incentive Stock Option exceeding the $100,000 limitation, only such excess shall be treated as not
being an Incentive Stock Option.
(b) Price.
Except for the limitations on Incentive Stock Options set forth below, the price at which each Share covered by an Option may be
purchased shall be determined in each case by the Administrator and set forth in the Award Agreement. In no event shall the Exercise
Price for each Share covered by an Option be less than the Fair Market Value of the Stock on the date the Option is granted. Further,
the Exercise Price for each Share covered by an Incentive Stock Option granted to an Employee who then owns stock possessing more
than 10% of the total combined voting power of all classes of stock of the Company or any parent or subsidiary corporation of the
Company must be at least 110% of the Fair Market Value of the Stock subject to the Incentive Stock Option on the date the Option
is granted.
(c) Duration
of Options. The Administrator shall determine the period of time within which the Option may be exercised by the Award Holder.
The Exercise Period must expire, in all cases, not more than ten years from the date an Option is granted; provided, however, that
the Exercise Period of an Incentive Stock Option granted to an Employee who then owns stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or any parent or subsidiary corporation of the Company must expire
not more than five years from the date such Option is granted. Any Exercise Period determined by the Administrator to be shorter
than the ten or five-year term set forth above, must be set forth in an Award Agreement. Each Award Agreement shall also state
the periods of time, if any, as determined by the Administrator, when incremental portions of each Option shall vest. If any Option
is not exercised during its Exercise Period, it shall be deemed to have been forfeited and of no further force or effect.
(d) Termination
of Service, Retirement, Death or Disability. Except as otherwise determined by the Administrator, each Option shall be governed
by the following terms with respect to the exercise of the Option if an Award Holder ceases to be a Service Provider:
(i) If the
Award Holder ceases to be a Service Provider within the Exercise Period for cause, as determined by the Company, the Option shall
thereafter be void for all purposes. As used in this Section 6.2(d), “cause” shall mean (A) if applicable, “cause”
as defined on a written contract between the Award Holder and the Company, or (B) in any other case, a gross violation, as determined
by the Company, of the Company’s established policies and procedures. The effect of this Section 6.2(d)(i) shall be limited
to determining the consequences of a termination, and nothing in this Section 6.2(d)(i) shall restrict or otherwise interfere with
the Company’s discretion with respect to the termination of any Service Provider.
(ii) If
the Award Holder ceases to be a Service Provider with the Company in a manner determined by the Board, in its sole discretion,
to constitute retirement (which determination shall be communicated to the Award Holder within 10 days of such termination), the
Option may be exercised by the Award Holder, or in the case of death, by the persons specified in clause (iii) of this Section
6.2(d), within three months following his or her retirement if the Option is an Incentive Stock Option or within twelve months
following his or her retirement if the Option is a Non-Statutory Stock Option (provided in each case that such exercise must occur
within the Exercise Period), but not thereafter. In any such case, the Option may be exercised only as to the Shares as to which
the Option had become exercisable on or before the date the Award Holder ceased to be a Service Provider.
(iii) If
the Award Holder dies (A) while he or she is a Service Provider, (B) within the three-month period referred to in clause (v) below,
or (C) within the three or twelve-month period referred to in clause (ii) above, the Option may be exercised by those entitled
to do so under the Award Holder’s will or by the laws of descent and distribution within twelve months following the Award
Holder’s death (provided that such exercise must occur within the Exercise Period), but not thereafter. In any such case,
the Option may be exercised only as to the Shares as to which the Option had become exercisable on or before the date the Award
Holder ceased to be a Service Provider.
(iv) If
the Award Holder becomes disabled (within the meaning of Section 22(e) of the Internal Revenue Code) while a Service Provider,
Incentive Stock Options held by the Award Holder may be exercised by the Award Holder within twelve months following the date the
Award Holder ceased to be a Service Provider (provided that such exercise must occur within the Exercise Period), but not thereafter.
If the Award Holder becomes disabled (within the meaning of Section 22(e) of the Internal Revenue Code) while a Service Provider
or within three-month period referred to in clause (v) below or within the twelve-month period following his or her retirement
as provided in clause (ii) above, Non-Statutory Options held by the Award Holder may be exercised by the Award Holder within twelve
months following the date of the Award Holder’s disability (provided that such exercise must occur within the Exercise Period),
but not thereafter. In any such case, the Option may be exercised only as to the Shares as to which the Option had become exercisable
on or before the date the Award Holder ceased to be a Service Provider.
(v) If the
Award Holder ceases to be a Service Provider within the Exercise Period for any reason other than cause, retirement as provided
in clause (ii) above, disability as provided in clause (iv) above or the Award Holder’s death, the Option may be exercised
by the Award Holder within three months following the date of such cessation (provided that such exercise must occur within the
Exercise Period), but not thereafter. In any such case, the Option may be exercised only as to the Shares as to which the Option
had become exercisable on or before the date that the Award Holder ceased to be a Service Provider.
(e) Exercise,
Payments, etc. The method for exercising and paying the Exercise Price of each Option granted under the Plan shall be as set forth
in Section 16.
SECTION 7
STOCK APPRECIATION RIGHTS
7.1 Awards
Granted by Administrator. Coincident with or following designation for participation in the Plan, a Participant may be granted
one or more Stock Appreciation Rights. The Administrator may grant free standing Stock Appreciation Rights, Stock Appreciation
Rights in tandem with an Option, or any combination thereof.
7.2 Award
Agreement. Except as otherwise set forth in an Award Agreement delivered to the Participant, each Stock Appreciation Right shall
be governed by the following terms and conditions, as well as such other terms and conditions not inconsistent therewith as the
Administrator may consider appropriate in each case.
(a) Number
of Shares. Each Award Agreement shall state that it covers a specified number of Shares, as determined by the Administrator.
(b) Price.
The Exercise Price of a Stock Appreciation Right shall be determined in each case by the Administrator and set forth in the Award
Agreement. In no event shall the Exercise Price for a Stock Appreciation Right be less than the Fair Market Value of the Stock
on the date the Award is granted.
(c) Term.
The Administrator shall determine the period of time within which the Stock Appreciation Right may be exercised by the Award Holder.
The Exercise Period must expire, in all cases, not more than ten years from the date an Award is granted. If any Stock Appreciation
Right is not exercised during its Exercise Period, it shall be deemed to have been forfeited and of no further force or effect.
(d) Vesting.
Each Stock Appreciation shall become exercisable and vest over such period of time or upon such events as determined by the Administrator
(including based on achievement of performance goals or future service requirements), which vesting or other terms shall be set
forth in an Award Agreement.
(e) Termination
of Service, Retirement, Death or Disability. Except as otherwise determined by the Administrator, each Stock Appreciation Award
shall be governed by the terms set forth in Section 6.2(d) with respect to the exercise of the Stock Appreciation Right if an Award
Holder ceases to be a Service Provider.
7.3 Exercise
of Stock Appreciation Right. An Award Holder desiring to exercise a Stock Appreciation Right shall deliver notice to the Company
in the manner set forth in Section 16.1(a) except that such notice need not be accompanied by payment. Upon the exercise of a Stock
Appreciation Right, the Award Holder shall be entitled to receive from the Company an amount determined by multiplying:
(a) The
excess of the Fair Market Value of a Share on the date the Award is exercised over the Exercise Price specified in the Award Agreement;
by
(b) The
number of Shares with respect to which the Stock Appreciation Right is exercised.
At the discretion of
the Administrator, payment upon exercise may be in cash, shares of Stock (with or without restrictions), or any combination thereof,
as determined by the Administrator in its sole discretion.
7.4 Effect
of Exercise of Tandem Right. If a Stock Appreciation Right is issued in tandem with an Option, the exercise of the Stock Appreciation
Right or the related Option will result in an equal reduction in the number of corresponding Shares subject to the Option or Stock
Appreciation Right, as applicable, that were granted in tandem with such Stock Appreciation Right or Option.
SECTION 8
STOCK AWARDS
8.1 Awards
Granted by Administrator. Coincident with or following designation for participation in the Plan, a Participant may be granted
one or more unrestricted Stock Awards or Restricted Stock Awards consisting of Shares. A Stock Award may be paid by delivery of
Stock, in cash or in a combination of Stock and cash, as determined by the Administrator.
8.2 Restrictions.
A Participant’s right to retain a Restricted Stock Award granted to such Participant under Section 8.1 shall be subject to
such restrictions, including but not limited to the Participant’s continuing to perform as a Service Provider for a restriction
period specified by the Administrator, or the attainment of specified performance goals and objectives, as may be established by
the Administrator with respect to such Award. The Administrator may, in its sole discretion, require different periods of service
or different performance goals and objectives with respect to (i) different Participants, (ii) different Restricted Stock Awards,
or (iii) separate, designated portions of the Shares constituting a Restricted Stock Award.
8.3 Transferability.
The Participant’s right to sell, encumber or otherwise transfer Restricted Stock shall be subject to the limitations of Section
12.2 hereof.
8.4 Privileges
of a Shareholder. Unless otherwise determined by the Administrator and set forth in the Award Agreement, a Participant holding
Shares of Restricted Stock shall become the holder of record of the Restricted Stock on the date the Award is granted.
8.5 Enforcement
of Restrictions. The Administrator may in its sole discretion require one or more of the following methods of enforcing the restrictions
referred to in Section 8.2 and 8.3:
(a) placing
a legend on the stock certificates referring to the restrictions as follows:
THE SHARES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO FORFEITURE AND TRANSFERABILITY RESTRICTIONS AS SET FROTH IN THE RESTRICTED STOCK AGREEMENT BETWEEN THE
SHAREHOLDER AND ELITE PHARMACEUTICALS, INC. DATED _____________. A COPY OF THE RESTRICTED STOCK AGREEMENT IS ON FILE AT THE EXECUTIVE
OFFICE OF ELITE PHARMACEUTICALS, INC..
(b) requiring
the Participant to keep the stock certificates, duly endorsed, in the custody of the Company while the restrictions remain in effect;
or
(c) requiring
that the stock certificates, duly endorsed, be held in the custody of a third party while the restrictions remain in effect.
8.6 Termination
of Service, Death or Disability. In the event of the death or disability (within the meaning of Section 22(e) of the Internal Revenue
Code) of a Participant, or the retirement of a Participant as provided in Section 6.2(d)(ii), all service period and other restrictions
applicable to Restricted Stock Awards then held by him shall lapse, and such Awards shall become fully nonforfeitable. Subject
to Section 11, in the event a Participant ceases to be a Service Provider for any other reason, any Restricted Stock Awards as
to which the service period or other restrictions have not been satisfied shall be forfeited.
SECTION 9
PERFORMANCE SHARES AND PERFORMANCE UNITS
9.1 Awards
Granted by Administrator. Coincident with or following designation for participation in the Plan, a Participant (other than a Non-Employee
Director) may be granted Performance Shares or Performance Units.
9.2 Amount
of Award. The Administrator shall establish a maximum amount of a Participant’s Award, which amount shall be denominated
in Shares in the case of Performance Shares or in dollars in the case of Performance Units.
9.3 Communication
of Award. Written notice of the maximum amount of a Participant’s Award and the Performance Cycle determined by the Administrator
shall be given to a Participant as soon as practicable after approval of the Award by the Administrator.
9.4 Amount
of Award Payable. The Administrator shall establish maximum and minimum performance targets to be achieved during the applicable
Performance Cycle. Performance targets established by the Administrator shall relate to corporate, group, unit or individual performance
and may be established in terms of earnings, growth in earnings, ratios of earnings to equity or assets, or such other measures
or standards determined by the Administrator. Multiple performance targets may be used and the components of multiple performance
targets may be given the same or different weighting in determining the amount of an Award earned, and may relate to absolute performance
or relative performance measured against other groups, units, individuals or entities. Achievement of the maximum performance target
shall entitle the Participant to payment (subject to Section 9.6) at the full or maximum amount specified with respect to the Award;
provided, however, that notwithstanding any other provisions of this Plan, in the case of an Award of Performance Shares the Administrator
in its discretion may establish an upper limit on the amount payable (whether in cash or Stock) as a result of the achievement
of the maximum performance target. The Administrator may also establish that a portion of a full or maximum amount of a Participant’s
Award will be paid (subject to Section 9.6) for performance which exceeds the minimum performance target but falls below the maximum
performance target applicable to such Award.
9.5 Adjustments.
At any time prior to payment of a Performance Share or Performance Unit Award, the Administrator may adjust previously established
performance targets or other terms and conditions to reflect events such as changes in laws, regulations, or accounting practice,
or mergers, acquisitions or divestitures.
9.6 Payments
of Awards. Following the conclusion of each Performance Cycle, the Administrator shall determine the extent to which performance
targets have been attained, and the satisfaction of any other terms and conditions with respect to an Award relating to such Performance
Cycle. The Administrator shall determine what, if any, Exercise Price is due with respect to an Award and whether such Exercise
Price shall be made in cash, Stock or some combination. Payment shall be made in a lump sum or installments, as determined by the
Administrator, commencing as promptly as practicable following the end of the applicable Performance Cycle, subject to Section
16 or such other terms and conditions as may be prescribed by the Administrator; provided, however, that, subject to Section 20.4,
all payments shall be made no later than (i) March 15 of the year following the end of the Performance Cycle if such Performance
Cycle ends on or before September 30 of a year, or (ii) November 15 of the year following the end of the Performance Cycle if such
Performance Cycle ends on or after September 1 of a year.
9.7 Termination
of Employment. If a Participant ceases to be a Service Provider before the end of a Performance Cycle by reason of his or her death,
disability as provided in Section 6.2(d)(iv), or retirement as provided in Section 6.2(d)(ii), the Performance Cycle for such Participant
for the purpose of determining the amount of the Award payable shall end at the end of the calendar quarter immediately preceding
the date on which such Participant ceased to be a Service Provider. Subject to Section 20.4, the amount of an Award payable to
a Participant to whom the preceding sentence is applicable shall be paid at the end of the Performance Cycle and shall be that
fraction of the Award computed pursuant to the preceding sentence the numerator of which is the number of calendar quarters during
the Performance Cycle during all of which said Participant was a Service Provider and the denominator of which is the number of
full calendar quarters in the Performance Cycle. Upon any other termination of Participant’s services as a Service Provider
during a Performance Cycle, participation in the Plan shall cease and all outstanding Awards of Performance Shares or Performance
Units to such Participant shall be canceled.
SECTION 10
AWARDS TO NON-EMPLOYEE DIRECTORS
10.1 Board
Grants. The Board (and not a committee of the Board), in its sole discretion, may grant Awards to Non-Employee Directors in the
form of Non-Statutory Options, unrestricted Stock or Restricted Stock. The Board (and not a committee of the Board), in its sole
discretion, may also adopt one or more formulas that provide for granting a specified Award to each Non-Employee Director for attendance
at each meeting of designated committees of the Board. The Board may adopt different formulas for the various committees of the
Board, and it may choose to adopt formulas for some committees and not others. Further, any formula may provide for a different
grant to members of the committee charged with additional responsibilities on the committee, such as the chairman.
10.2 Administrator.
The Administrator shall have no authority, discretion or power to select the Non-Employee Directors who will receive any Award,
determine the number of Shares to be issued or the time at which such Awards are to be granted, establish the duration of the Awards
or alter any other terms or conditions specified in the Plan or by the Board, except in the sense of administering the Plan pursuant
to the provisions of the Plan and the grant resolution of the Board.
10.3 Price
of Option Shares. The exercise price per Share for any Option granted pursuant to this Section 10 shall be 100% of the Fair Market
Value of the Stock on the date on which the Non-Employee Director is granted the Option.
10.4 Termination.
If the Non-Employee Director ceases to be a Director for any reason, an Award which is exercisable may be exercised by the Non-Employee
Director at any time following the date of such cessation provided that such exercise must occur prior to the Award expiration
date. In any such case, the Award may be exercised only as to the Shares as to which the Award had become exercisable on or before
the date that the Non-Employee Director ceased to be a Director.
10.5 Other
Terms. Except for the limitations set forth in Sections 5, 10.3, 10.4, and 11, the terms and provisions of Awards shall be as determined
from time to time by the Administrator, and Awards issued may contain terms and provisions different from other Awards granted
to the same or other Award recipients. Awards shall be evidenced by an Award Agreement containing such terms and provisions as
the Administrator may determine, subject to the provisions of the Plan.
SECTION 11
CHANGE IN CONTROL, REORGANIZATION OR
LIQUIDATION
11.1 Change
In Control. In the event of a change in control of the Company as defined in Section 11.3, then the Administrator may, in its sole
discretion, without obtaining shareholder approval, to the extent permitted in Section 15, take any or all of the following actions:
(a) accelerate the exercise dates of any outstanding Awards or make all such Awards fully vested and exercisable; (b) grant a cash
bonus award to any Award Holder in an amount necessary to pay the Exercise Price of all or any portion of the Award then held by
such Award Holder; (c) pay cash to any or all Award Holders in exchange for the cancellation of their outstanding Awards in an
amount equal to the difference between the Exercise Price of such Awards and the greater of the tender offer price for the underlying
Stock or the Fair Market Value of the Stock on the date of the cancellation of the Awards; (d) make any other adjustments or amendments
to the outstanding Awards; and (e) eliminate all restrictions with respect to Awards of Restricted Stock and deliver Shares free
of restrictive legends to any Participant; provided, however, that the Administrator shall not make any adjustment or amendment
that would constitute a “modification” of an Award, as such term is used in Internal Revenue Code regulation §
1.409A-1(b)(5)(v), that would result in such Award being subject to additional tax pursuant to Section 409A of the Internal Revenue
Code.
11.2 Performance
Shares and Performance Units. Under the circumstances described in Section 11.1, the Administrator may, in its sole discretion,
and without obtaining shareholder approval, to the extent permitted in Section 15, provide for payment of outstanding Performance
Shares and Performance Units at the maximum award level or any percentage thereof; provided, however, that to the extent permitted
by Section 20.4 herein, all payments shall be made no later than (i) March 15 of the year following the end of the Performance
Cycle to which the Performance Shares or Performance Units relate if such Performance Cycle ends on or before September 30 of a
year, or (ii) November 15 of the year following the end of the Performance Cycle to which the Performance Shares or Performance
Units relate if such Performance Cycle ends on or after September 1 of a year.
11.3 Definition.
For purposes of the Plan, a “change in control” shall be deemed to have occurred if: (a) any “person” or
“group” (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act), other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company, is or becomes the “beneficial owner” (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than 33-1/3% of the then outstanding voting stock of the
Company, except that with regard to Nasrat Hakim and his Affiliates, directly or indirectly, of more that 50% of the then outstanding
voting stock of the Company; or (b) at any time during any period of three consecutive years (not including any period prior to
the Effective Date), individuals who at the beginning of such period constitute the Board (and any new director whose election
by the Board or whose nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds
of the directors then still in office who either were directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a majority thereof; or (c) the shareholders of the
Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity) at least 80% of the combined voting power of
the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the
shareholders approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of
all or substantially all of the Company’s assets.
11.4 Reorganization
or Liquidation. In the event that the Company is merged or consolidated with another corporation (other than a merger or consolidation
in which the Company is the continuing corporation and which does not result in any reclassification or change of outstanding Shares),
or if all or substantially all of the assets or more than 50% of the outstanding voting stock of the Company is acquired by any
other corporation, business entity or person (other than a sale or conveyance in which the Company continues as a holding company
of an entity or entities that conduct the business or businesses formerly conducted by the Company), or in case of a reorganization
(other than a reorganization under the United States Bankruptcy Code) or liquidation of the Company, and if the provisions of Section
11.1 do not apply, the Administrator, or the board of directors of any corporation assuming the obligations of the Company, shall,
have the power and discretion to prescribe the terms and conditions for the exercise, or modification, of any outstanding Awards
granted hereunder. By way of illustration, and not by way of limitation, the Administrator may provide for the complete or partial
acceleration of the dates of exercise of the Options, or may provide that such Options will be exchanged or converted into options
to acquire securities of the surviving or acquiring corporation, or may provide for a payment or distribution in respect of outstanding
Options (or the portion thereof that is currently exercisable) in cancellation thereof. The Administrator may remove restrictions
on Restricted Stock and may modify the performance requirements for any other Awards. The Administrator may provide that Stock
or other Awards granted hereunder must be exercised in connection with the closing of such transaction, and that if not so exercised
such Awards will expire. Any such determinations by the Administrator may be made generally with respect to all Participants, or
may be made on a case-by-case basis with respect to particular Participants. The provisions of this Section 11.4 shall not apply
to any transaction undertaken for the purpose of reincorporating the Company under the laws of another jurisdiction, if such transaction
does not materially affect the beneficial ownership of the Company’s capital stock.
SECTION 12
CONTINUATION OF SERVICES; TRANSFERABILITY
12.1 Continuation
of Services. Nothing contained in the Plan or in any Award granted under the Plan shall confer upon any Participant any right with
respect to the continuation of his or her services as a Service Provider, or interfere in any way with the right of the Company,
subject to the terms of any separate employment or consulting agreement to the contrary, at any time to terminate such services
or to increase or decrease the compensation of the Participant from the rate in existence at the time of the grant of an Award.
Whether an authorized leave of absence, or absence in military or government service, shall constitute a termination of Participant’s
services as a Service Provider shall be determined by the Administrator at the time of such leave in accordance with then current
laws and regulations.
12.2 Nontransferability.
Except as provided in Section 12.3, no right or interest of any Participant in an Award granted pursuant to the Plan shall be assignable
or transferable during the lifetime of the Participant, except (if otherwise permitted under Section 12.4) pursuant to a domestic
relations order, either voluntarily or involuntarily, or be subjected to any lien, directly or indirectly, by operation of law,
or otherwise, including execution, levy, garnishment, attachment, pledge or bankruptcy. In the event of a Participant’s death,
a Participant’s rights and interests in Options and Stock Appreciation Rights shall, if otherwise permitted under Section
12.4, be transferable by testamentary will or the laws of descent and distribution, and payment of any amounts due under the Plan
shall be made to, and exercise of any Options and Stock Appreciation Rights may be made by, the Participant’s legal representatives,
heirs or legatees. If, in the opinion of the Administrator, a person entitled to payments or to exercise rights with respect to
the Plan is disabled from caring for his or her affairs because of mental condition, physical condition or age, payment due such
person may be made to, and such rights shall be exercised by, such person’s guardian, conservator or other legal personal
representative upon furnishing the Administrator with evidence satisfactory to the Administrator of such status. Transfers shall
not be deemed to include transfers to the Company or “cashless exercise” procedures with third parties who provide
financing for the purpose of (or who otherwise facilitate) the exercise of Awards consistent with applicable laws and the authorization
of the Administrator.
12.3 Permitted
Transfers. Pursuant to conditions and procedures established by the Administrator from time to time, the Administrator may permit
Awards (other than Incentive Stock Options) to be transferred to, exercised by and paid to certain persons or entities related
to a Participant, including but not limited to members of the Participant’s immediate family, charitable institutions, or
trusts or other entities whose beneficiaries or beneficial owners are members of the Participant’s immediate family and/or
charitable institutions. In the case of initial Awards, at the request of the Participant, the Administrator may permit the naming
of the related person or entity as the Award recipient. Any permitted transfer shall be subject to the condition that the Administrator
receive evidence satisfactory to it that the transfer is being made for estate and/or tax planning purposes on a gratuitous or
donative basis and without consideration (other than nominal consideration).
12.4 Limitations
on Incentive Stock Options. Notwithstanding anything in this Agreement (or in any Award Agreement evidencing the grant of an Option
hereunder) to the contrary, Incentive Stock Options shall be transferable only to the extent permitted by Section 422 of the Internal
Revenue Code and the treasury regulations thereunder without affecting the Option’s qualification under Section 422 as an
Incentive Stock Option.
SECTION 13
GENERAL RESTRICTIONS
13.1 Investment
Representations. The Company may require any person to whom an Award is granted, as a condition of exercising such Award or receiving
Stock under the Award, to give written assurances in substance and form satisfactory to the Company and its counsel to the effect
that such person is acquiring the Stock subject to the Award for such person’s own account for investment and not with any
present intention of selling or otherwise distributing the same, and to such other effects as the Company deems necessary or appropriate
in order to comply with federal and applicable state securities laws. Legends evidencing such restrictions may be placed on the
certificates evidencing the Stock.
13.2 Compliance
with Securities Laws. Each Award shall be subject to the requirement that, if at any time counsel to the Company shall determine
that the listing, registration or qualification of the Shares subject to such Award upon any securities exchange or under any state
or federal law, or the consent or approval of any governmental or regulatory body, is necessary as a condition of, or in connection
with, the issuance or purchase of Shares thereunder, such Award may not be accepted or exercised in whole or in part unless such
listing, registration, qualification, consent or approval shall have been effected or obtained on conditions acceptable to the
Administrator. Nothing herein shall be deemed to require the Company to apply for or to obtain such listing, registration or qualification.
13.3 Stock
Restriction Agreement. The Administrator may provide that shares of Stock issuable pursuant to an Award shall, under certain conditions,
be subject to restrictions whereby the Company has a right of first refusal with respect to such shares or a right or obligation
to repurchase all or a portion of such shares, which restrictions may survive a Participant’s cessation or termination as
a Service Provider.
13.4 Shareholder
Privileges. No Award Holder shall have any rights as a shareholder with respect to any Shares covered by an Award until the Award
Holder becomes the holder of record of such Stock, and no adjustments shall be made for dividends or other distributions or other
rights as to which there is a record date preceding the date such Award Holder becomes the holder of record of such Stock, except
as provided in Section 4.
SECTION 14
OTHER EMPLOYEE BENEFITS
The amount of any compensation
deemed to be received by a Participant as a result of the exercise of an Option or the grant or vesting of any other Award shall
not constitute “earnings” with respect to which any other benefits of such Participant are determined, including without
limitation benefits under any pension, profit sharing, life insurance or salary continuation plan.
SECTION 15
PLAN AMENDMENT, MODIFICATION AND TERMINATION
The Board may at any
time terminate, and from time-to-time may amend or modify, the Plan; provided, however, that no amendment or modification may become
effective without approval of the amendment or modification by the shareholders if shareholder approval is required to enable the
Plan to satisfy any applicable statutory or regulatory requirements, or if the Company, on the advice of counsel, determines that
shareholder approval is otherwise necessary or desirable.
No amendment, modification
or termination of the Plan shall in any manner adversely affect any Awards theretofore granted under the Plan, without the consent
of the Participant holding such Awards.
SECTION 16
EXERCISE AND WITHHOLDING
16.1 Exercise,
Payments, etc.
(a) The
method for exercising each Award granted under the Plan shall be by delivery to the Corporate Secretary of the Company or an agent
designated pursuant to Section 18 of a notice specifying the number of Shares with respect to which such Award is exercised and
payment of the Exercise Price. Such notice shall be in a form satisfactory to the Administrator and shall specify the particular
Award (or portion thereof) which is being exercised and the number of Shares with respect to which the Award is being exercised.
The exercise of the Award shall be deemed effective upon receipt of such notice by the Corporate Secretary or a designated agent
and payment to the Company. The purchase of such Stock shall be deemed to take place at the principal office of the Company upon
delivery of such notice, at which time the purchase price of the Stock shall be paid in full by any of the methods or any combination
of the methods set forth in (b) below. A properly executed certificate or certificates representing the Stock shall be issued by
the Company and delivered to the Award Holder. If certificates representing Stock are used to pay all or part of the Exercise Price,
separate certificates for the same number of shares of Stock shall be issued by the Company and delivered to the Award Holder representing
each certificate used to pay the Exercise Price, and an additional certificate shall be issued by the Company and delivered to
the Award Holder representing the additional Shares, in excess of the Exercise Price, to which the Award Holder is entitled as
a result of the exercise of the Award.
(b) The
exercise price shall be paid by any of the following methods or any combination of the following methods:
(i) in cash;
(ii) by
certified or cashier’s check payable to the order of the Company;
(iii) if
authorized by the Administrator, in its sole discretion, by delivery to the Company of certificates representing the number of
Shares then owned by the Award Holder, the Fair Market Value of which equals the purchase price of the Stock purchased pursuant
to the Award, properly endorsed for transfer to the Company; provided however, that Shares used for this purpose must have been
held by the Award Holder for more than six months; and provided further that the Fair Market Value of any Shares delivered in payment
of the purchase price upon exercise of the Award shall be the Fair Market Value as of the exercise date, which shall be the date
of delivery of the certificates for the Stock used as payment of the Exercise Price;
(iv) if
authorized by the Administrator, in its sole discretion, by requesting to receive the number of Shares being exercised less the
number of Shares having a Fair Market Value as of the exercise date equal to the aggregate Exercise Price for all Shares being
exercised at the time;
(v) if authorized
by the Administrator, in its sole discretion, and subject to applicable law, including Section 402 of the Sarbanes-Oxley Act, by
delivery by a Participant (other than an Executive Officer or Director) to the Company of a properly executed notice of exercise
together with irrevocable instructions to a broker to deliver to the Company promptly the amount of the proceeds of the sale of
all or a portion of the Stock or of a loan from the broker to the Award Holder necessary to pay the exercise price; or
(vi) if
authorized by the Administrator, in its sole discretion, any combination of these methods.
(c) In
the sole discretion of the Administrator, the Company may, subject to applicable law, including Section 402 of the Sarbanes-Oxley
Act, guaranty a third-party loan obtained by a Participant (other than an Executive Officer or Director) to pay part or all of
the Exercise Price of the Shares provided that such loan or the Company’s guaranty is secured by the Shares and the loan
bears interest at a market rate. The Company may not make or guaranty loans to Executive Officers or Directors.
16.2 Withholding
Requirement. The Company’s obligations to deliver Shares upon the exercise of an Option or Stock Appreciation Right, or upon
the vesting of any other Award, shall be subject to the Participant’s satisfaction of all applicable federal, state and local
income and other tax withholding requirements. The Company may defer exercise of an Award unless indemnified by the Participants
to the Administrator’s satisfaction against the payment of any such amount. Further, the Company shall, to the extent permitted
by law, have the right to deduct any such taxes from any payment of any kind due to the Participant by the Company.
16.3 Withholding
with Stock. At the time the Administrator grants an Award, it may, in its sole discretion, grant the Participant an election to
pay all such amounts of tax withholding, or any part thereof, by electing to transfer to the Company, or to have the Company withhold
from Shares otherwise issuable to the Participant, Shares having a value equal to the amount required to be withheld or such lesser
amount as may be elected by the Participant. All elections shall be subject to the approval or disapproval of the Administrator.
The value of Shares to be withheld shall be based on the Fair Market Value of the Stock on the date that the amount of tax to be
withheld is to be determined (the “Tax Date”). Any such elections by Participants to have Shares withheld for this
purpose will be subject to the following restrictions:
(a) All
elections must be made prior to the Tax Date;
(b) All
elections shall be irrevocable; and
(c) If
the Participant is an “officer” or “director” of the Company within the meaning of Section 16 of the Exchange
Act, the Participant must satisfy the requirements of such Section 16 of the Exchange Act and any applicable rules thereunder with
respect to the use of Stock to satisfy such tax withholding obligation.
16.4 Incentive
Options. In the event that an Award Holder makes a disposition (as defined in Section 424(c) of the Internal Revenue Code) of any
Stock acquired pursuant to the exercise of an Incentive Stock Option prior to the later of (i) the expiration of two years from
the date on which the Incentive Stock Option was granted or (ii) the expiration of one year from the date on which the Option was
exercised, the Award Holder shall send written notice to the Company at its principal office (Attention: Corporate Secretary) of
the date of such disposition, the number of Shares disposed of, the amount of proceeds received from such disposition, and any
other information relating to such disposition as the Company may reasonably request. The Award Holder shall, in the event of such
a disposition, make appropriate arrangements with the Company to provide for the amount of additional withholding, if any, required
by applicable federal and state income tax laws.
SECTION 17
SECTION 162(m) PROVISIONS
17.1 Limitations.
Notwithstanding any other provision of this Plan, if the Administrator determines at the time any Award of Stock, Performance Shares,
or Performance Units is granted to a Participant that such Participant is, or is likely to be at the time he or she recognizes
income for federal income tax purposes in connection with such Award, a Covered Employee, then the Administrator may provide that
this Section 17 is applicable to such Award.
17.2 Performance
Goals. If an Award is subject to this Section 17, then the lapsing of restrictions thereon and the distribution of cash, Shares
or other property pursuant thereto, as applicable, shall be subject to the achievement of one or more objective performance goals
established by the Administrator, which shall be based on the attainment of one or any combination of the following: specified
levels of earnings per share, operating income (before or after taxes), production or production growth, resource replacement or
resource growth, revenues, gross margin, return on operating assets, return on equity, economic value added, stock price appreciation,
total shareholder return (measured in terms of stock price appreciation and dividend growth), successful completion of financing,
cash flow, or cost control, of the Company or Affiliated Entity (or any division thereof) for or within which the Participant is
primarily employed. Such performance goals also may be based upon the attaining of specified levels of Company performance under
one or more of the measures described above relative to the performance of other companies. Such performance goals shall be set
by the Administrator within the time period prescribed by, and shall otherwise comply with the requirements of, Section 162(m)
of the Internal Revenue Code and the regulations thereunder.
17.3 Adjustments.
Notwithstanding any provision of the Plan other than Sections 5 and 11, with respect to any Award that is subject to this Section
17, the Administrator may not adjust upwards the amount payable pursuant to such Award, nor may it waive the achievement of the
applicable performance goals except in the case of the death or disability of the Participant.
17.4 Expiration
of Grant Authority. The Administrator’s authority to grant new awards that are intended to qualify as performance-based compensation
within the meaning of 162(m) of the Internal Revenue Code (other than Qualifying Awards) shall terminate upon the first meeting
of the Company’s shareholders that occurs in the fifth year following the year in which the Company’s shareholders
first approve this Plan.
17.5 Other
Restrictions. The Administrator shall have the power to impose such other restrictions on Awards subject to this Section 17 as
it may deem necessary or appropriate to ensure that such Awards satisfy all requirements for “performance-based compensation”
within the meaning of Section 162(m)(4)(B) of the Internal Revenue Code or any successor thereto.
SECTION 18
BROKERAGE ARRANGEMENTS
The Administrator,
in its discretion, may enter into arrangements with one or more banks, brokers or other financial institutions to facilitate the
exercise of Options or the disposition of Shares acquired upon exercise of Stock Options, including, without limitation, arrangements
for the simultaneous exercise of Stock Options and sale of the Shares acquired upon such exercise.
SECTION 19
NONEXCLUSIVITY OF THE PLAN
Neither the adoption
of the Plan by the Board nor the submission of the Plan to shareholders of the Company for approval shall be construed as creating
any limitations on the power or authority of the Board to adopt such other or additional incentive or other compensation arrangements
of whatever nature as the Board may deem necessary or desirable or preclude or limit the continuation of any other plan, practice
or arrangement for the payment of compensation or fringe benefits to Employees or Consultants generally, or to any class or group
of Employees or Consultants, which the Company or any Affiliated Entity now has lawfully put into effect, including, without limitation,
any retirement, pension, savings and stock purchase plan, insurance, death and disability benefits and executive short-term incentive
plans.
SECTION 20
REQUIREMENTS OF LAW
20.1 Requirements
of Law. The issuance of Stock and the payment of cash pursuant to the Plan shall be subject to all applicable laws, rules and regulations.
20.2 Rule
16b-3. Transactions under the Plan and within the scope of Rule 16b-3 of the Exchange Act are intended to comply with all applicable
conditions of Rule 16b-3. To the extent any provision of the Plan or any action by the Administrator under the Plan fails to so
comply, such provision or action shall, without further action by any person, be deemed to be automatically amended to the extent
necessary to effect compliance with Rule 16b-3; provided, however, that if such provision or action cannot be amended to effect
such compliance, such provision or action shall be deemed null and void to the extent permitted by law and deemed advisable by
the Administrator.
20.3 Governing
Law. The Plan and all agreements hereunder shall be construed in accordance with and governed by the laws of the State of Nevada.
20.4 Specified
Employees Under Regulation 409A. For purposes of this Plan, the term “termination of employment” shall mean, with respect
to any Award that constitutes a deferral of compensation within the meaning of Section 409A of the Internal Revenue Code, “separation
from service” within the meaning of Section 409A of the Internal Revenue Code. Payment of any amount due a Participant after
a termination of employment with the Company shall generally be made as soon as practical after such termination. However, if a
Participant is a “specified employee” on the date of his or her termination of employment, as that term is defined
under Sections 409A(a)(2)(A)(i) and 409A(a)(2)(B)(i) of the Internal Revenue Code, then, to the extent necessary to avoid imposition
of additional taxes and interest under Section 409A of the Internal Revenue Code, any such payment shall be made on the date that
is the earliest of: (i) six (6) months after the Participant’s termination of employment, (ii) the Participant’s date
of death, if applicable, or (iii) such other earliest date for which such payment will not be subject to the constructive receipt,
interest, and additional tax provisions of Section 409A of the Internal Revenue Code.
20.5 Regulation
409A. The payments and benefits payable under the Plan are intended to not be subject to the additional tax imposed pursuant to
Section 409A of the Internal Revenue Code, and the Plan shall be construed in accordance with such intent.
SECTION 21
DURATION OF THE PLAN
No Award shall be granted
under the Plan after ten years from the Effective Date; provided, however, that any Award theretofore granted may, and the authority
of the Board or the Administrator to amend, alter, adjust, suspend, discontinue, or terminate any such Award or to waive any conditions
or rights under any such Award shall, extend beyond such date.
SECTION 22
STOCKHOLDER APPROVAL.
The Company intends
to seek stockholder approval of the Plan within twelve (12) months after The date this Plan is adopted by the Board; provided,
however, if the Company fails to obtain stockholder approval of the Plan during such 12-month period, pursuant to Section 422 of
the Code, any Option granted as an Incentive Stock Option at any time under the Plan will not qualify as an Incentive Stock Option
within the meaning of the Code and will be deemed to be a Non-Statutory Option.
Dated:
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March 17, 2014
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ELITE PHARMACEUTICALS, INC.
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By:
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s/Nasrat Hakim
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Nasrat Hakim, CEO
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ANNUAL
MEETING OF SHAREHOLDERS OF
ELITE
PHARMACEUTICALS, INC.
May
21, 2014
GO
GREEN
e-Consent
makes it easy to go paperless. With e-Consent, you can quickly access your proxy material, statements and other eligible documents
online, while reducing costs, clutter and paper waste. Enroll today via www.amstock.com to enjoy online access.
NOTICE
OF INTERNET AVAILABILITY OF PROXY MATERIAL
:
The Notice of Meeting, proxy statement and proxy card are available at http://www.elitepharma.com/annual_meeting.asp
For certain
very important resolutions, failure to vote would be considered the same as a "NO" vote. Please sign, date and mail
your proxy card in the envelope provided as soon as possible.
Please detach along perforated
line and mail in the envelope provided.
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