UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
(Rule
14a-101)
INFORMATION
REQUIRED IN PROXY STATEMENT
SCHEDULE
14A INFORMATION
Proxy
Statement Pursuant to Section 14(a)
of
the Securities Exchange Act of 1934
(Amendment
No.)
Filed
by the Registrant ☒
Filed
by a Party other than the Registrant ☐
Check
the appropriate box:
|
☐ |
Preliminary
Proxy Statement |
| ☐ |
Confidential,
for Use of the Commission Only (as Permitted by Rule
14a-6(e)(2)) |
| ☒ |
Definitive
Proxy Statement |
| ☐ |
Definitive
Additional Materials |
| ☐ |
Solicitation
Material Pursuant to Rule 14a-11(c) or rule 14a-12 |
Elite Pharmaceuticals, Inc.
(Name
of Registrant as Specified in its Charter)
(Name
of Person(s) Filing Proxy Statement, if Other Than the
Registrant)
Payment
of Filing Fee (Check the appropriate box):
| ☐ |
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fee required. |
| ☐ |
Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11. |
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1) |
Title
of each class of securities to which transaction
applies: |
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2) |
Aggregate
number of securities to which transaction applies: |
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3) |
Per
unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11: |
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4) |
Proposed
maximum aggregate value of transaction: |
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fee paid: |
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paid previously with preliminary materials. |
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Check
box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by
registration statement number, or the Form or Schedule and the date
of its filing. |
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(1) |
Amount
Previously Paid: |
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(2) |
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Schedule or Registration Statement No.: |
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(3) |
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Party: |
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(4) |
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Filed: |
 |
April 29,
2020 |
Dear
Fellow Shareholders,
I
hope that all of you and your loved ones are safe in these trying
times and that life will return to normal soon.
You
may be wondering why Elite is holding a Special Meeting of its
Shareholders solely to reaffirm your prior approval of an amendment
to our Articles of Incorporation to increase the number of our
authorized shares. The answer detailed below is that the
circumstances surrounding the methodology used to tabulate the
votes may have been unclear and we want to ensure that the increase
in authorizes shares was properly approved by you.
While
preparing for the 2019 Annual Shareholders’ Meeting, we and our
advisers assessed whether the original amendment proposal was
routine or non-routine under applicable New York Stock Exchange
rules. That determination is based on the particular facts and
circumstances associated with a proposal to increase the number of
authorized shares; some share increase proposals are considered
routine and others are considered non-routine. Based on our
assessment, we indicated in the Annual Meeting Proxy Statement that
the original amendment proposal was a “non-routine” matter under
NYSE rules and that, accordingly, brokers holding shares in “street
name” on behalf of beneficial owners did not have discretionary
authority to vote those shares on the original amendment proposal
without direction from the beneficial owners.
However,
Broadridge Financial Solutions later determined that the proposal
was a “routine” matter under NYSE rules. As such, the proxy cards
prepared by Broadridge and sent to its brokers (who, in turn, sent
the ballots to their clients) clearly indicated that the original
amendment proposal was routine. The proxy cards specifically
included the statement: “If you do not provide us with your voting
instructions, we will vote your shares at our discretion on those
proposals we are permitted to vote on by New York Stock Exchange
rules.” As a result, the vote on the original amendment proposal
was conducted properly as a routine matter (with brokers using
discretionary authority to vote in favor of the proposal) and
Shareholder votes were tabulated correctly. The proposal was
approved by the requisite vote under Chapter 78 of the Nevada
Revised Statutes and our Articles of Incorporation and
Bylaws.
We
are confident that the vote on the proposal was entirely proper and
the share Increase amendment to our Articles was therefore adopted
by our Shareholders and is now effective. However, we recognize the
inconsistent description of the nature of the proposal under NYSE
rules in the Annual Meeting Proxy Statement. In an abundance of
caution, we have determined to permit Shareholders to again approve
the share increase amendment, this time with a consistent
classification of the proposal as routine in all solicitation
materials and proxy cards. We have not issued any of the additional
shares authorized by the Amendment filed after the Annual Meeting,
and unless and until the new proposal is again approved by our
Shareholders, we do not intend to issue or reserve for issuance any
such additional shares.
We
noted in the Annual Meeting Proxy Statement that to continue to
execute on our initiatives and grow our business, it is imperative
that we have shares available to obtain funding. Please take
the time to vote YES on Proposal No. 1.
Please
remember that as a Shareholder, your vote is extremely important to
the Company, no matter how many shares you own.
If
you have any questions or need assistance voting your shares,
please call Dianne Will, Investor Relations for Elite
Pharmaceuticals at 518-398-6222.
|
|
 |
|
|
Nasrat Hakim
|
|
|
President
and Chief Executive Officer |
 |
ELITE
PHARMACEUTICALS, INC.
165 Ludlow
Avenue
Northvale, New Jersey
07647
|
|
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
To Be Held June 23, 2020 |
TO
THE SHAREHOLDERS OF ELITE PHARMACEUTICALS, INC.:
NOTICE
IS HEREBY GIVEN that a special meeting of shareholders (the
“virtual Special Meeting”) of Elite Pharmaceuticals, Inc., a Nevada
corporation will be held on June 23, 2020, at 10:30 a.m., Easter
Daylight Time. The meeting will be held virtually via live webcast
at https://web.lumiagm.com/289761342. Shareholders will NOT
be able to attend the Special Meeting in-person. The virtual
Special Meeting will be held for the following purposes:
|
(1) |
To
again vote on the amendment of our Articles of Incorporation to
increase the number of shares of common stock the Company is
authorized to issue from 995,000,000 shares to 1,445,000,000 shares
and to file a new amendment to our Articles of Incorporation
reflecting such approval; |
|
(2) |
To
approve a proposal to grant discretionary authority to adjourn the
virtual Special Meeting, if necessary, to solicit additional
proxies in the event that there are not sufficient votes at the
time of the virtual Special Meeting to approve Proposal
1; |
|
(3) |
To
transact such other business as may properly come before the
virtual Special Meeting or any adjournments or postponement
thereof. |
Our
Board of Directors has fixed the close of business on April 27,
2020 as the record date for the determination of the Shareholders
entitled to notice of, and to vote at, the virtual Special
Meeting.
YOUR
VOTE IS IMPORTANT. Whether or not you plan to attend the
virtual Special Meeting, we urge you to submit your vote as soon as
possible to ensure your shares are represented. Returning the proxy
does not deprive you of your right to attend the virtual Special
Meeting and to vote your shares at this meeting. The proxy
statement explains proxy voting and the matters to be voted on in
more detail. The proxy statement and related materials are being
mailed to you commencing on or about May 12, 2020.
|
Important
Notice Regarding the Availability of Proxy Materials for the
Special Shareholders’ Meeting
to
Be Held Virtually, Via Live Webcast
at https://web.lumiagm.com/289761342,
at
10:30 a.m., Eastern Daylight Time on Tuesday, June 23,
2020.
|
| |
|
The
proxy statement, the Company’s Annual Report on Form 10-K for the
fiscal year ended March 31, 2019 and Quarterly Report on Form 10-Q
for quarter ended December 31, 2019 are available at
https://elite.irpass.com/shareholder_meeting. |
| |
By
order of the Board of Directors |
| |
|
|
Date:
April 29, 2020 |
By: |
/s/ Nasrat Hakim |
|
|
|
Nasrat
Hakim
President
and Chief Executive Officer
|
| |
ELITE
PHARMACEUTICALS, INC. |
|
| |
165
Ludlow Avenue |
|
| |
Northvale,
New Jersey 07647 |
|
| |
|
|
| |
PROXY STATEMENT |
|
Important
Notice Regarding the Availability of Proxy Materials for
the
virtual
Special Meeting of Shareholders to be held on June 23,
2020:
This
Proxy Statement, the proxy card, our Annual Report on Form 10-K for
the fiscal year ended March 31, 2019 and our Quarterly Report on
Form 10-Q for quarter ended December 31, 2019 (together, the “Proxy
Materials”) are available on the internet at:
https://elite.irpass.com/shareholder_meeting. 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. We are
hosting this Special Meeting virtually as part of our effort to
maintain a safe and healthy environment for our directors, members
of management and Shareholders who wish to attend the Special
Meeting, and in light of the COVID-19 pandemic, our Board believes
that hosting a virtual Special Meeting is in our best interest and
the best interests of our Shareholders.
This
Proxy Statement is being furnished to Shareholders in connection
with the virtual Special Meeting of Shareholders of Elite to be
held on June 23, 2020 at 10:30 a.m. Eastern Daylight Time and any
adjournment thereof (the “virtual Special Meeting”). This Special
Meeting will be a virtual-only meeting via live webcast. You will
not be able to attend the Special Meeting in person. You will be
able to attend the virtual Special Meeting by accessing at
https://web.lumiagm.com/289761342 password: “elite2020” (case
sensitive) and following the instructions set forth below in
“Meeting Attendance”.
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 for our virtual Special Meeting
of Shareholders to be held on June 23, 2020, and any adjournments
thereof. You are receiving the Proxy Materials because you own
shares of Common Stock or shares of Series J Preferred Stock that
entitle you to vote at the virtual Special Meeting. By use of the
proxy, you can vote, whether or not you attend the virtual Special
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 virtual Special Meeting, the voting
process and other required information.
Purpose
The
purpose of the virtual Special Meeting is:
|
(1) |
To
again vote on the amendment of our Articles of Incorporation to
increase the number of shares of common stock the Company is
authorized to issue from 995,000,000 shares to 1,445,000,000 shares
(“Proposal No. 1”); |
|
(2) |
To
approve a proposal to grant discretionary authority to adjourn the
virtual Special Meeting, if necessary, to solicit additional
proxies in the event that there are not sufficient votes at the
time of the virtual Special Meeting to approve Proposal 1
(“Proposal No. 2”); and |
|
(3) |
To
transact such other business as may properly come before the
virtual Special Meeting or any adjournments or postponement
thereof. |
As
described below, we are again seeking approval from our
Shareholders of the prior amendment to our Articles of
Incorporation to increase the number of shares of common stock our
company is authorized to issue from 995,000,000 shares to
1,445,000,000 shares (the “Share Increase Amendment”). A proposal
to approve this amendment was included as Proposal No. 2 (the
“Original Amendment Proposal”) in the Proxy Statement (the “Annual
Meeting Proxy Statement”) for our prior Annual Shareholders’
Meeting held on December 4, 2019 (the “Annual Meeting”). The
Original Amendment Proposal was approved by Shareholders at the
Annual Meeting. Following such approval, the Share Increase
Amendment was filed with the Secretary of State of Nevada and
became effective.
In
preparation for the Annual Meeting, we and our advisers assessed
whether the Original Amendment Proposal was routine or non-routine
under applicable New York Stock Exchange (“NYSE”) rules. That
determination is based on the particular facts and circumstances
associated with a proposal to increase the number of authorized
shares; some share increase proposals are considered routine and
others are considered non-routine. Based on our assessment, we
indicated in the Annual Meeting Proxy Statement that the Original
Amendment Proposal was a non-routine matter under NYSE rules and
that, accordingly, brokers holding shares in “street name” on
behalf of beneficial owners did not have discretionary authority to
vote those shares on the Original Amendment Proposal without
direction from the beneficial owners. However, Broadridge Financial
Solutions (“Broadridge”) later determined that the Original
Amendment Proposal was a routine matter under NYSE rules. As such,
the proxy cards prepared by Broadridge and sent to its brokers
(who, in turn, sent the ballots to their clients) clearly indicated
that the Original Amendment Proposal was routine. The proxy cards
specifically included the statement: “If you do not provide us with
your voting instructions, we will vote your shares at our
discretion on those proposals we are permitted to vote on by New
York Stock Exchange rules.” As a result, the vote on the Original
Amendment Proposal was conducted properly as a routine matter (with
brokers using discretionary authority to vote in favor of the
Original Amendment Proposal) and shareholder votes were tabulated
correctly. The Share Increase Proposal was approved by the
requisite vote under Chapter 78 of the Nevada Revised Statutes and
our Articles of Incorporation and Bylaws.
We
are confident that the vote on the Original Amendment Proposal was
entirely proper and the Share Increase Amendment was therefore
adopted by our Shareholders and is now effective. However, we
recognize the inconsistent description of the nature of the
proposal under NYSE rules in the Prior Proxy Statement and the
proxy card. In an abundance of caution, we have determined to
permit Shareholders to again approve the Share Increase Amendment,
this time with a consistent classification of the proposal as
routine in all solicitation materials and proxy cards. We have not
issued any of the additional shares authorized by the Share
Increase Amendment, and unless and until the Share Increase
Amendment is again approved by our Shareholders, we do not intend
to issue or reserve for issuance any such additional
shares.
Meeting
Attendance
Shares
Registered in Your Name. If you were a Shareholder of record at
the close of business on the Record Date, you do not need to do
anything in advance to attend and/or vote your shares
electronically at the virtual Special. To attend the meeting, go to
https://web.lumiagm.com/289761342, click on “I have a login,” enter
the control number found on your proxy card you previously
received, and enter the password “elite2020” (the password is case
sensitive). Then, follow the instructions on the screen. We
encourage you to access the meeting prior to the start time leaving
ample time for the check in. Whether or not you attend the meeting,
we urge you to mail in your proxy.
Shares
Registered in the Name of a Broker, Bank or Other Nominee. If
your shares are registered in the name of your broker, bank or
other agent, you are the “beneficial owner” of those shares and
those shares are considered as held in “street name.” If you are a
beneficial owner of shares registered in the name of your broker,
bank or other agent, you should have received a proxy card and
voting instructions with these proxy materials from that
organization rather than directly from us. Simply complete and mail
the proxy card to ensure that your vote is counted. You may be
eligible to vote your shares electronically over the Internet or by
telephone. A large number of banks and brokerage firms offer
Internet and telephone voting. If your bank or brokerage firm does
not offer Internet or telephone voting information, please complete
and return your proxy card in the self-addressed, postage-paid
envelope provided.
To
vote electronically at the virtual Special Meeting, you must first
obtain a valid legal proxy from your broker, bank or other agent
and then register in advance to attend the virtual Special Meeting.
Follow the instructions from your broker or bank included with
these proxy materials, or contact your broker or bank to request a
legal proxy form.
After
obtaining a valid legal proxy from your broker, bank or other
agent, to then register to attend the virtual Special Meeting, you
must submit proof of your legal proxy reflecting the number of your
shares along with your name and email address to American Stock
Transfer & Trust Company, LLC. Requests for registration should
be directed to proxy@astfinancial.com or to facsimile number
718-765-8730. Written requests can be mailed to:
American
Stock Transfer & Trust Company LLC
Attn:
Proxy Tabulation Department
6201
15th Avenue
Brooklyn,
NY 11219
Requests
for registration must be labeled as “Legal Proxy” and be received
No later than 5:00 p.m., Eastern Daylight Time, on June 16,
2020.
You
will receive a confirmation of your registration by email after we
receive your registration materials. You may attend the virtual
Special Meeting at https://web.lumiagm.com/289761342 password:
“elite2020” (case sensitive) and vote your shares during the
meeting. Follow the instructions provided to vote. We encourage you
to access the meeting prior to the start time leaving ample time
for the check in.
Record
Date and Voting Rights
The
holders of our Common Stock and our Series J Preferred Stock as of
April 27, 2020 (the “Record Date”) are entitled to vote at the
virtual Special 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
virtual Special Meeting. Each share of Series J 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 J Preferred Stock is convertible (6,574,621 shares of Common
Stock per whole share of Series J Preferred Stock), on each of the
matters to be voted upon at the virtual Special Meeting. As of the
Record Date, we had outstanding 840,404,367 shares of Common Stock
(excluding 100,000 treasury shares), and 24.03443452410 shares of
Series J Preferred Stock that were convertible into 158,017,321
shares of Common Stock. Accordingly, the maximum number of votes
entitled to be cast at the virtual Special Meeting on each of the
matters to be voted upon is 998,421,688.
Shareholders
vote at the virtual Special Meeting by casting ballots (at the
meeting or by proxy) which will be tabulated by a person who is
appointed by the Board of Directors before the virtual Special
Meeting to serve as inspector of election at the virtual Special
Meeting and who has executed and verified an oath of
office.
Quorum;
Abstentions; Vote Required
A
quorum must exist for the transaction of business at the virtual
Special Meeting (other than a motion to adjourn the virtual Special
Meeting). The presence at the virtual Special Meeting, by remote
communication or by proxy, of the holders of a majority of the
voting power of the shares of capital stock of Elite issued and
outstanding and entitled to vote at the virtual Special Meeting,
will constitute a quorum for the transaction of business at the
virtual Special Meeting. Abstentions 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, approval of Proposal No. 1 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, or at least 499,210,845 votes. If you abstain, your
abstention will have the same effect as a vote
against this proposal.
Assuming
that a quorum is present, approval of Proposal No. 2 will require
that the number of votes cast in favor of the Proposal must exceed
the number of vote cast in opposition to the Proposal. Abstentions
with regard to this proposal are not considered to have been voted
on this proposal and therefore will not have any effect on the vote
for such proposals.
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.
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 Proposals No. 1 and No. 2.
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 provided by your broker. Brokers holding shares of
record in “street name” for a client have the discretionary
authority to vote on some matters (“routine” matters) if they do
not receive timely instructions from the client regarding how the
client wants the shares voted. Both Proposal No. 1 and No. 2 are
considered routine matters and brokers will be permitted to vote in
their discretion on these matters on behalf of clients who have not
timely furnished voting instructions.
If
you hold your common shares in your broker’s name and wish to vote
in person at the virtual Special Meeting, you must timely contact
your broker and request a document called a “legal proxy.” Please
see “Meeting Attendance; Shares Registered in the Name of a
Broker, Bank or Other Nominee” above.
Revocation
You
have the right to revoke your proxy at any time before it is voted
by attending the virtual Special Meeting and voting at the meeting
or by filing with our Secretary either a written instrument
revoking the proxy or another executed proxy bearing a later
date.
No
Appraisal Rights
Shareholders
entitled to vote will not have any appraisal rights in connection
with any of the proposals to be voted on at the virtual Special
Meeting.
Developments
Regarding COVID-19 Could Impact The Date, Time or Location of The
Meeting
We
are actively monitoring the public health and travel safety
concerns relating to COVID-19 and the advisories or mandates that
federal, state, and local governments, and related agencies, may
issue. If we determine that it is not possible or advisable to hold
our virtual Special Meeting as currently planned, we will announce
by press release as well as through a filing with the Securities
and Exchange Commission.
Questions
on the Proposals or How to Vote
If
you have any questions regarding any of the proposals or how to
vote your shares, please contact Dianne Will, Investor Relations
for Elite at 518-398-6222 (collect calls will be accepted) or via
email at dianne@elitepharma.com.
Recommendations
of the Board of Directors
This
proxy solicitation is being made by the Company. The Board of
Directors recommends a vote:
|
● |
FOR
Proposal No. 1 - the amendment of our Articles of Incorporation
to again increase the number of shares of common stock the Company
is authorized to issue from 995,000,000 shares to 1,445,000,000
shares and the filing of a new amendment to our Articles of
Incorporation reflecting such approval; |
|
● |
FOR
Proposal No. 2 - granting discretionary authority to adjourn
the virtual Special Meeting, if necessary, to solicit additional
proxies in the event that there are not sufficient votes at the
time of the virtual Special Meeting to approve Proposal
1. |
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 virtual Special
Meeting that will be presented for consideration at the virtual
Special Meeting and plan on limiting business solely to the
proposals described herein. If any other business should properly
come before the virtual Special 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 (except as otherwise indicated), regarding beneficial
ownership of our Common Stock and our Series J 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, (iii) each of our
executive officers and (iv) all our directors and executive
officers as a group. On the Record Date, we had 840,404,367 shares
of Common Stock outstanding (exclusive of 100,000 treasury shares)
and 24.03443452410 shares of Series J 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 J 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 J Preferred Stock is convertible (6,574,621
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 April 27, 2020.
Except as otherwise indicated, the Shareholders listed in the table
have sole voting and investment powers with respect to the shares
indicated.
| |
|
Amount
and Nature of
Beneficial Ownership |
|
|
Percent (%)
of Voting |
|
|
Name and Address Of Beneficial Owner of Common Stock |
|
Common
Stock |
|
|
Series
J
Preferred
Stock |
|
|
Securities
Beneficially
Owned (11) |
|
|
Nasrat Hakim, President, Chief Executive Officer and Chairman of
the Board of Directors* |
|
|
107,760,381 |
(1) |
|
|
24.03443452410 |
(2) |
|
|
24.7 |
% |
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Barry Dash, Director* |
|
|
1,932,792 |
(3) |
|
|
|
|
|
|
** |
% |
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Jeffrey Whitnell, Director* |
|
|
1,884,257 |
(4) |
|
|
|
|
|
|
** |
% |
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Eugene Pfeifer, Director* |
|
|
233,414 |
(5) |
|
|
|
|
|
|
** |
% |
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Davis Caskey, Director* |
|
|
746,673 |
(6) |
|
|
|
|
|
|
** |
% |
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Carter J. Ward, Chief Financial
Officer * |
|
|
4,697,089 |
(7) |
|
|
|
|
|
|
** |
% |
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Douglas Plassche, Executive Vice
President * |
|
|
4,133,572 |
(8) |
|
|
|
|
|
|
** |
% |
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Ashok Nigalaye, Former Director |
|
|
50,265,539 |
(9) |
|
|
|
|
|
|
4.7 |
% |
| |
|
|
|
|
|
|
|
|
|
|
|
|
| All Directors
and Officers as a group |
|
|
121,154,764 |
(10) |
|
|
24.03443452410 |
(2) |
|
|
25.9 |
% |
|
* |
The
address is c/o Elite Pharmaceuticals Inc., 165 Ludlow Avenue,
Northvale, NJ 07647. |
| (1) |
Includes
11,797,561 shares of Common Stock held and 16,954,159 shares of
Common Stock due and owing to Mr. Hakim as of the Record Date for
compensation earned pursuant to Mr. Hakim’s employment agreement
with the Company and 79,008,661 shares of Common Stock issuable
upon exercise of the Series J Warrants. |
|
|
|
|
(2) |
Series
J Preferred Stock has an aggregate of 158,017,321 voting
rights. |
|
|
|
|
(3) |
Includes
1,416,011 shares of Common Stock held and 516,781 shares of Common
Stock due and owing to Dr. Dash as of the Record Date for Directors
fees accrued as of such date. |
|
|
|
|
(4) |
Includes
1,367,476 shares of Common Stock held and 516,781 shares of Common
Stock due and owing to Mr. Whitnell as of the Record Date for
Directors fees accrued as of such date. |
|
(5) |
Mr.
Pfeifer passed away on June 10, 2018. Includes 233,414 shares still
held in Mr. Pfeifer’s account with the Company’s transfer
agent. |
|
|
|
|
(6) |
Includes
229,892 shares of Common Stock held and 516,781 shares of Common
Stock due and owing to Mr. Caskey as of the Record Date for
Directors fees accrued as of such date. |
|
|
|
|
(7) |
Includes
3,771,919 shares of Common Stock held and 775,170 shares of Common
Stock due and owing to Mr. Ward as of the Record Date for salaries
earned pursuant to Mr. Ward’s employment agreement with the
Company, and vested options to purchase 150,000 shares of Common
Stock. |
|
|
|
|
(8) |
Includes
487,596 shares of Common Stock held 645,976 shares of Common Stock
due and owing to Mr. Plassche as of the Record Date for salaries
earned pursuant to Mr. Plassche’s employment agreement with the
Company, and vested options to purchase 3,000,000 shares of Common
Stock. |
|
|
|
|
(9) |
Dr.
Nigalaye resigned on June 5, 2015. Address is c/o Granulation
Technology Inc. 12 Industrial Road, Fairfield, NJ 07004. Includes
50,265,539 shares of Common Stock held with the Company’s transfer
agent in account(s) that is (are) beneficially owned by Dr.
Nigalaye. |
|
|
|
|
(10) |
Relates
only to current directors and officers. Includes 19,070,455 shares
of Common Stock held, 19,925,648 shares of Common Stock due and
owing as of the Record Date for director’s fees and salaries
accrued as of such date, vested options to purchase 3,150,000
shares of Common Stock, and warrants to purchase 79,008,661 shares
of Common Stock. |
|
|
|
|
(11) |
The
denominator includes 158,017,321 votes attributable to the
outstanding Series J Preferred Stock. Accordingly, the percentage
of Common Stock beneficially owned by each Owner listed in the
table other than Mr. Hakim is slightly greater than the percentage
listed in this column. |
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. Each share of
Series J 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 J Preferred Stock is convertible.
As of the Record Date, Nasrat Hakim beneficially owns approximately
24.7% of our voting equity (calculated in accordance with Rule
13d-3 of the Securities Exchange Act of 1934). However, pursuant to
Rule 13d-3, beneficial ownership includes shares of common stock
issuable within 60 days of the date of computation of beneficial
ownership.
PROPOSAL NO.
1
approval of amendment to our Articles of
Incorporation
to AGAIN increase the number of shares of common stock the
Company is authorized
to issue from 995,000,000 shares to 1,445,000,000 shares and tHE
filING OF a new amendment
to our Articles of Incorporation reflecting such
approval
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” PROPOSAL NO.
1
For
the reasons stated above in Information Concerning The Meeting;
Purpose, this proposal, which was previously voted upon and
approved at Elite’s December 4, 2019 Annual Shareholder’s Meeting,
is being presented again for Shareholder approval. The language for
this Proposal’s vote count has been edited for clarity. Since the
date of the prior approval of the authorized share increase, we
have not issued or reserved for issuance any of the additionally
authorized shares of Common Stock.
Prior
to our 2019 Annual Meeting, our Articles of Incorporation
authorized us to issue up to 995,000,000 shares of Common Stock,
$.001 par value, and 15,000 shares of Preferred Stock, $0.01 par
value. For the reasons stated above, our Board of Directors again
unanimously adopted, subject to shareholder approval, the same
amendment to our Articles of Incorporation to increase the
authorized number of shares of our Common Stock by 450,000,000
shares to 1,445,000,000 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 One Billion Four
Hundred Forty Five Million Fifteen Thousand (1,445,015,000) shares,
consisting of (a) One Billion Four Hundred Forty five Million
(1,445,000,000) 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. If Shareholders approve Proposal No. 1, this Amendment
will be filed with the Secretary of State of Nevada, unless we
determine that such filing is not necessary.
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 1,185,257,334 shares, including,
without limitation:
| |
● |
158,017,321
shares issuable upon conversion of shares of our outstanding Series
J of preferred stock; |
| |
|
|
| |
● |
79,008,661
shares issuable upon exercise of certain warrants; |
| |
|
|
| |
● |
840,404,367
shares of Common Stock (exclusive of 100,000 treasury
shares); |
| |
|
|
| |
● |
99,566,985
shares of Common Stock reserved as per the Registration Statement
on Form S-3 declared effective by the Securities and Exchange
Commission on June 7, 2017; |
| |
|
|
| |
● |
5,510,000
shares reserved for issuance pursuant to options to purchase Common
Stock; |
| |
|
|
| |
● |
2,750,000
shares reserved pursuant to the 2014 Equity Incentive Plan (the
“2014 Plan”). |
The
foregoing excludes an aggregate of 19,925,648 shares issuable to
officers and directors as of March 31, 2020 as part of their
compensation arrangements.
Had
the Original Amendment Proposal not passed, the number of shares of
Common Stock we are required to issue under the derivative
securities described above would have exceeded the number of shares
of Common Stock available for future
issuances.
The
terms of our 2014 Plan, the certificates of designation for the
Series J 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 under or 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 issuance,
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 Share Increase Amendment accomplished this.
Proposal No. 1 simply would validate the Share Increase
Amendment.
If
shareholder approval had not been obtained prior to April 28, 2021
(the “Dividend Commencement Date”) and our authorized shares of
Common Stock had not been sufficiently increased by such date,
Nasrat Hakim, the holder of the Series J Preferred Stock, would
have been entitled to a dividend equal to twenty percent of the
stated value ($1,000 per share) of Series J Preferred Stock
commencing on the Dividend Commencement Date. As a result of the
Share Increase Amendment, Mr. Hakim is not entitled to such
dividend.
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.
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 (In this regard, we anticipate needing funding for the
development and filing of products until the time when currently
filed ANDAs are approved and launched and revenues are sufficient
to cover research and development costs); |
| |
|
|
| |
● |
strategic
investments; |
| |
|
|
| |
● |
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
our authorized shares, even if the Original Share Amendment had not
been approved.
Our
Board of Directors believes that, had the Original Share Amendment
not been approved, the lack of additional authorized shares of
Common Stock available for issuance would 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 validate
the Original Share Amendment.
If
this proposal is not adopted and we were to invalidate the Original
Share Amendment, management believes we would 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 do not
have available the increased 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 thereby validating the Original Share Amendment, we
will have 259,842,449 shares of Common Stock (exclusive of
19,925,648 shares owed to officers and directors) not reserved for
any specific use and available for future issuances.
The
additional authorized shares available as a result of the Original
Share Amendment, especially if validated by approval of Proposal
No. 1, 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 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 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, 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 increase in authorized shares of our Common
Stock was not prompted by any takeover or acquisition effort or
threat.
As of
the date hereof, we do have certain other measures that can be
deemed to be anti-takeover measures. our current Articles of
Incorporation allow us to issue shares of preferred stock without
any vote or further action by our Shareholders. Our Board of
Directors has the authority to fix and determine the relative
rights and preferences of preferred stock. Our Board of Directors
also has the authority to issue preferred stock without further
shareholder approval. As a result, our Board of Directors could
authorize the issuance of a series of preferred stock that would
grant to holders the preferred right to our assets upon
liquidation, the right to receive dividend payments before
dividends are distributed to the holders of Common Stock and the
right to the redemption of the shares, together with a premium,
prior to the redemption of our Common Stock. The foregoing
provisions remain unchanged in the Articles of Incorporation as
anticipated to be amended pursuant to this Proposal No. 1. In
addition, on November 15, 2013, we enacted a Shareholder Rights
Plan. This Plan, if triggered could deter any potential acquirer
from making a hostile bid to take over our company Also, our
By-Laws provide for the classification of our Board of Directors
into three classes.
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. 1. If you
abstain, your abstention will have the same effect as a vote
against this proposal. It will become effective upon the filing of
an amendment to our Articles of Incorporation with the Secretary of
State of Nevada, which we intend to make promptly after the
completion of the virtual Special Meeting.
OUR
BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE “FOR” THIS PROPOSAL TO
AGAIN AMEND OUR ARTICLES OF INCORPORATION TO INCREASE THE NUMBER OF
SHARES OF COMMON STOCK THE COMPANY IS AUTHORIZED TO ISSUE FROM
995,000,000 SHARES TO 1,445,000,000 SHARES
PROPOSAL NO. 2
GRANT
OF DISCRETIONARY AUTHORITY TO ADJOURN THE SPECIAL
MEETING
IF
NECESSARY TO SOLICIT ADDITIONAL PROXIES
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” PROPOSAL NO.
2
Although
it is not expected, the virtual Special Meeting may be adjourned
for the purpose of soliciting additional proxies. Any such
adjournment of the virtual Special Meeting may be made without
notice, other than by the announcement made at the virtual Special
Meeting, by approval of the holders of a majority of the
outstanding shares of our Common Stock and Series J Preferred
Stock, voting together as a single class, present in person or by
proxy and entitled to vote at the virtual Special Meeting, whether
or not a quorum exists. We are soliciting proxies to grant
discretionary authority to the chairperson of the virtual Special
Meeting to adjourn the virtual Special Meeting, if necessary, for
the purpose of soliciting additional proxies in favor of Proposal
No. 1. The chairperson will have the discretion to decide whether
or not to use the authority granted to such person pursuant to this
Proposal No. 2 to adjourn the virtual Special Meeting.
Required
Vote
To
approve the grant of discretionary authority to the chairperson of
the virtual Special Meeting to adjourn the virtual Special Meeting,
if necessary, for the purpose of soliciting additional proxies in
favor of Proposal No. 1, the number of votes cast in favor of the
Proposal must exceed the number of vote cast in opposition to the
Proposal. Although failure to submit a proxy or vote in person at
the virtual Special Meeting, or a failure to provide your broker,
nominee, fiduciary or other custodian, as applicable, with
instructions on how to vote your shares will not affect the outcome
of the vote on this proposal, the failure to submit a proxy or vote
in person at the virtual Special Meeting will make it more
difficult to meet the quorum requirement under our
bylaws.
OUR
BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE “FOR” THIS
PROPOSAL
TO
GRANT DISCRETIONARY AUTHORITY TO ADJOURN THE SPECIAL
MEETING
IF
NECESSARY TO SOLICIT ADDITIONAL PROXIES
HOUSEHOLDING
OF MATERIALS
In
some instances, only one copy of the proxy materials is being
delivered to multiple Shareholders sharing an address, unless the
Company has received instructions from one or more of the
Shareholders to continue to deliver multiple copies. The Company
will deliver promptly, upon oral or written request, a separate
copy of the applicable materials to a Shareholder at a shared
address to which a single copy was delivered. If you wish to
receive a separate copy of the proxy materials you may call the
Company at (201) 750-2646 or send a written request to Elite
Pharmaceuticals, Inc., 165 Ludlow Avenue, Northvale, New Jersey
07647, Attention: Secretary. If you wish to receive a separate copy
of the proxy materials, and wish to receive a separate copy for
each shareholder in the future, you may call the Company at the
telephone number or write the Company at the address listed above.
Alternatively, shareholders sharing an address who now receive
multiple copies of the proxy materials may request delivery of a
single copy, also by calling the Company at the telephone number or
writing to the Company at the address listed above.
DEADLINE
FOR SHAREHOLDER PROPOSALS FOR THE 2020 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 Securities
and Exchange Commission 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 June
20, 2020. 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 2020 Annual Meeting of Shareholders
not for inclusion in next year’s proxy statement and proxy card,
the Shareholder must deliver notice between 120 and 90 days before
the first anniversary of the prior year’s Annual meeting setting
forth the information required to be included in such notice under
our Amended and Restated Bylaws. If no Annual meeting of
Shareholders was held in the previous year, a proposal must deliver
notice not later than the later of ten days after we have publicly
disclosed the date of the meeting and 90 days prior to the date of
the shareholder meeting. Any such proposal or nomination when
submitted must be in full compliance with 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.
OTHER
MATTERS
We do
not expect any matters to be presented for a vote at the meeting,
other than the proposals described in this Proxy Statement and plan
on limiting business solely to the proposals described herein. 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.
Unless
contrary instructions are indicated in a proxy, all shares of
Common Stock and Series J preferred stock represented by valid
proxies received pursuant to this solicitation (and not revoked
before they are voted) will be voted FOR Proposal No. 1 and FOR
Proposal No. 2.
|
April
29, 2020 |
|
By
Order of the Board of Directors |
|
|
|
Carter
Ward, Secretary |
SHAREHOLDERS
ARE URGED TO VOTE BY INTERNET, BY TELEPHONE, BY SIGNING
AND
RETURNING
THE ENCLOSED PROXY IN THE ENCLOSED ENVELOPE OR BY VOTING AT THE
MEETING.
Appendix
A
 |
|
ROSS
MILLER
Secretary
of State
204
North Carson Street, Suite 1 Carson City, Nevada 89701-4520 (775)
684-5708
Website:
www.nvsos.gov
|
|
|
|
Certificate
of Amendment
(PURSUANT
TO NRS 78.385 AND 78.390)
|
|
|
USE
BLACK INK ONLY - DO NOT HIGHLIGHT |
ABOVE
SPACE IS FOR OFFICE USE ONLY |
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)
NOTE:
This Certificate of Amendment is identical in all material respects
to a Certificate of Amendment which was filed with the Nevada
Secretary of State on December 5, 2019. The amendment to the
Corporation’s Articles of Incorporation set forth herein has been
re-adopted by the Board of Directors and stockholders of the
Corporation and is being filed out of an abundance of caution, to
make sure that stockholder votes in favor of the amendment have
been accurately tabulated.
The
beginning of 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 One Billion Four
Hundred Forty Five Million Fifteen Thousand (1,445,015,000) shares,
consisting of (a) One Billion Four Hundred Forty Five Million
(1,445,000,000) 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: ___________
| 4. Effective date and time of filing:
(optional) |
Date: |
|
|
Time: |
|
| |
(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.
This
form must be accompanied by appropriate fees.
