As
filed with the Securities and Exchange Commission on March 28, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ELITE
PHARMACEUTICALS, INC.
(Exact
name of Registrant as specified in its charter)
| Nevada |
|
22-3542636 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(IRS
Employer
Identification
No.) |
165
LUDLOW AVENUE
NORTHVALE,
NEW JERSEY 07647
(Address,
including zip code, of Registrant’s principal executive offices)
Employment
Agreement, dated August 1, 2013, with Nasrat Hakim, as amended by Amendment 1 to Employment Agreement, dated January 21, 2016
(Full
title of the plan)
Nasrat
Hakim
President
& Chief Executive Officer
Elite
Pharmaceuticals, Inc.
165
Ludlow Avenue
Northvale,
NJ 07647
(201)
750-2646
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
copy
to:
Scott
R. Jones, Esquire
Troutman Pepper Hamilton Sanders LLP
400 Berwyn Park
899 Cassatt Road
Berwyn, Pennsylvania 19312-1183
(610) 640-7800
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large
accelerated filer |
☐ |
|
Accelerated
filer |
☐ |
| Non-accelerated
filer |
☒ |
|
Smaller
reporting company |
☒ |
| |
|
|
Emerging
growth company |
☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY
NOTE
This
Registration Statement on Form S-8 is being filed by Elite Pharmaceuticals, Inc., a Nevada corporation (the “Company”), for
the purpose of registering 49,534,368 shares of the Company’s common stock, par value $0.001 per share (“Common Stock”),
authorized for issuance under the Employment Agreement, dated August 1, 2013, between the Company and Nasrat Hakim, as amended by Amendment
1 to Employment Agreement, dated January 21, 2016. Such Employment Agreement is referred to below as the “Plan.”
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement on Form S-8 (“Registration
Statement”) in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”)
and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered
to the participant in the Plan as specified by Rule 428(b)(1) under the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
| Item
3. |
Incorporation
of Documents by Reference |
The
following documents filed by the Company with the Securities and Exchange Commission (the “SEC”) are incorporated by reference
in this Registration Statement:
| 1. |
The
Company’s Annual Report on Form 10-K
for the fiscal year ended March 31, 2023, filed with the SEC on June 29, 2023, as amended by the Form 10-K/A
filed with the SEC on July 31, 2023; |
| 2. |
The
Company’s Quarterly Report on Form 10-Q
for the quarter ended June 30, 2023, filed with the SEC on August 14, 2023, the Company’s Quarterly Report on Form 10-Q
for the quarter ended September 30, 2023, filed with the SEC on November 14, 2023, and the Company’s Quarterly Report on Form
10-Q
for the quarter ended December 31, 2023, filed with the SEC on February 14, 2024; |
| 4. |
The
description of the Company’s common stock set forth in Exhibit
4.6 to the Annual Report on Form 10-K, filed with the SEC on June 29, 2020. |
In
addition, all reports and documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”) subsequent to the date hereof and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and made a part hereof from the date of the filing of such documents; provided,
however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the SEC shall
not be deemed incorporated by reference into this Registration Statement. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
| Item 6. |
Indemnification of Directors and Officers |
The
Company’s bylaws provide that it will indemnify each of its directors, officers, employees and agents against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such director, officer, employee
or agent in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Company), relating to service for or at the request of the Company.
The
Company’s bylaws also provide that it will advance expenses (including attorneys’ fees) incurred by any of its directors,
officers, employees or agents defending an action, suit or proceeding, upon receipt of an undertaking by or on behalf of such director,
officer, employee or agent to repay such amount if that director, officer, employee or agent is determined to not be entitled to indemnification.
Notwithstanding the foregoing, no advance shall be made by the Company if a determination is reasonably and promptly made by the Board
of Directors by a majority vote of a quorum of disinterested directors, or (if such a quorum is not obtainable or, even if obtainable,
a quorum of disinterested directors so directs) by independent legal counsel in a written opinion, that, based upon the facts known to
the Board of Directors or counsel at the time such determination is made, such director, officer, employee or agent acted in bad faith
and in a manner that such director, officer, employee or agent did not believe to be in or not opposed to the best interest of the Company,
or, with respect to any criminal proceeding, that such director, officer, employee or agent believed or had reasonable cause to believe
his or her conduct was unlawful.
Nevada
law permits a Nevada corporation, such as the Company, to indemnify its directors and officers in certain circumstances. Specifically,
Section 78.7502 of the Nevada Revised Statutes provides as follows:
“(1)
A corporation may indemnify pursuant to this subsection any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in
the right of the corporation, by reason of the fact that the person is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with the action, suit or proceeding if the person: (a) is not liable pursuant
to Nevada Revised Statutes 78.138; or (b) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe
the conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea
of nolo contendere or its equivalent, does not, of itself, create a presumption that the person is liable pursuant to Nevada Revised
Statutes 78.138 or did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best
interests of the corporation, or that, with respect to any criminal action or proceeding, he or she had reasonable cause to believe that
the conduct was unlawful.
(2)
A corporation may indemnify pursuant to this subsection any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that
the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses,
including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by the person in connection with the
defense or settlement of the action or suit if the person: (a) is not liable pursuant to Nevada Revised Statutes 78.138; or (b) acted
in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation. Indemnification
pursuant to this section may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent
jurisdiction, after exhaustion of any appeals taken therefrom, to be liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction
determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity
for such expenses as the court deems proper.
(3)
Any discretionary indemnification pursuant to this section, unless ordered by a court or advanced pursuant to subsection 2 of Nevada
Revised Statutes 78.751, may be made by the corporation only as authorized in each specific case upon a determination that the indemnification
of a director, officer, employee or agent of a corporation is proper under the circumstances. The determination must be made by: (a) The
stockholders; (b) The board of directors, by majority vote of a quorum consisting of directors who were not parties to the action, suit
or proceeding; or (c) Independent legal counsel, in a written opinion, if: (1) A majority vote of a quorum consisting of directors
who were not parties to the action, suit or proceeding so orders; or (2) A quorum consisting of directors who were not parties to
the action, suit or proceeding cannot be obtained.”
Exhibits
| 3.1 |
|
Articles
of Incorporation of Elite-Nevada, incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with the SEC on
January 9, 2012 |
| |
|
|
| 3.2 |
|
Certificate
of Amendment to Articles of Incorporation, incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K, dated June
24, 2020 and filed with the SEC on June 24, 2020 |
| |
|
|
| 3.3 |
|
Amended
and Restated By-Laws of the Company, incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K dated April 23, 2020
and filed with the SEC on April 23, 2020 |
| |
|
|
| 5.1* |
|
Opinion
of Troutman Pepper Hamilton Sanders LLP |
| |
|
|
| 23.1* |
|
Consent
of Buchbinder Tunick & Company LLP, independent registered certified public accounting firm |
| |
|
|
| 23.2* |
|
Consent
of Troutman Pepper Hamilton Sanders LLP (included in Exhibit 5.1)
|
| 24.1* |
|
Powers
of Attorney (included on the signature page) |
| |
|
|
99.1
|
|
August
1, 2013 Employment Agreement with Nasrat Hakim, incorporated by reference to Exhibit 10.4
to the Current Report on Form 8-K, dated August 1, 2013 and filed with the SEC on August
5, 2013
|
| 99.2 |
|
Amendment
No. 1 to Hakim Employment Agreement, incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed with the SEC
on January 29, 2016 |
| |
|
|
| 107.1* |
|
Calculation
of Filing Fee Table |
1.
The Company hereby undertakes:
(a)
to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement; and
(iii)
to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided,
however, that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by
those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the Company pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the registration statement;
(b)
that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(c)
to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
2.
The undersigned Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
Company’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
3.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act, Elite Pharmaceuticals, Inc. certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Northvale, state of New Jersey, on March 28, 2024.
| |
ELITE
PHARMACEUTICALS, INC. |
| |
|
|
| |
By: |
/s/
Nasrat Hakim |
| |
Name: |
Nasrat
Hakim |
| |
Title: |
Chief
Executive Officer, President
and Chairman of the Board of Directors |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints Nasrat Hakim and Carter
Ward, his or her true and lawful agent, proxy and attorney-in-fact, with full power of substitution and resubstitution, for him and her
and in his or her name, place and stead, in any and all capacities, to (i) act on, sign and file with the Securities and Exchange Commission
any and all amendments (including post-effective amendments) to this registration statement together with all schedules and exhibits
thereto and any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, together
with all schedules and exhibits thereto, (ii) act on, sign and file such certificates, instruments, agreements and other documents as
may be necessary or appropriate in connection therewith, (iii) act on and file any supplement to any prospectus included in this registration
statement or any such amendment or any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933,
as amended, and (iv) take any and all actions which may be necessary or appropriate in connection therewith, granting unto such agents,
proxies and attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing necessary or
appropriate to be done, as fully for all intents and purposes as he or she might or could do in person, hereby approving, ratifying and
confirming all that such agents, proxies and attorneys-in-fact or any of their substitutes may lawfully do or cause to be done by virtue
thereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement and Power of Attorney have been signed on March 28, 2024, by the
following persons in the capacities indicated.
| Signature |
|
Title
|
|
Date |
| |
|
|
|
|
| /s/
Nasrat Hakim |
|
|
|
March
28, 2024 |
| Nasrat
Hakim |
|
Chief
Executive Officer, President and Chairman of the Board of Directors
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/
Carter Ward |
|
|
|
March
28, 2024 |
| Carter
Ward |
|
Chief
Financial Officer
(Principal Accounting Officer and Principal Financial Officer) |
|
|
| |
|
|
|
|
| /s/
David Caskey |
|
|
|
March
28, 2024 |
| David
Caskey |
|
Director |
|
|
| |
|
|
|
|
| /s/
Barry Dash |
|
|
|
March
28, 2024 |
| Barry
Dash |
|
Director |
|
|
| |
|
|
|
|
| /s/
Jeffrey Whitnell |
|
|
|
March
28, 2024 |
| Jeffrey
Whitnell |
|
Director |
|
|
