As filed with the Securities and Exchange Commission on August 24, 2004
File No. 333- _________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement
Under the Securities Act of 1933
ELITE PHARMACEUTICALS, INC.
(Name of Registrant in its charter)
DELAWARE 22-3542636
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
165 LUDLOW AVENUE
NORTHVALE, NEW JERSEY 07647
(201) 750-2646
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
2004 STOCK OPTION PLAN
(Full Title of the Plan)
MR. BERNARD BERK
ELITE PHARMACEUTICALS, INC.
165 LUDLOW AVENUE
NORTHVALE, NEW JERSEY 07647
(201) 750-2646
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With copies to:
Scott H. Rosenblatt, Esq.
Reitler Brown & Rosenblatt LLC
800 Third Avenue, 21st Floor
New York, New York 10022
(212) 209-3050
(212) 371-5500 Fax
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SHARE PRICE FEE
-------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per share 1,500,000 $1.26(1) $1,890,000 $239.46(1)
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(1) The proposed maximum offering price per share has been
estimated/determined pursuant to Rule 457(h), and is based on the
closing sales price of the Company's Common Stock on the American
Stock Exchange on August 20, 2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
The documents containing the information specified in this Item will be sent or
given free of charge to employees, directors or consultants who have been
awarded options under the Elite Pharmaceuticals, Inc. 2004 Stock Option Plan
(the "Plan"), and are not being filed with, or included in, this Registration
Statement on Form S-8 (this "Registration Statement"), in accordance with the
rules and regulations of the Securities and Exchange Commission (the
"Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The documents containing the information specified in this Item will be sent or
given free of charge to employees, directors or consultants who have been
awarded options under the Plan and are not being filed with, or included in,
this Registration Statement, in accordance with the rules and regulations of the
Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which heretofore have been filed with the Commission by
Elite Pharmaceuticals, Inc., a Delaware corporation (the `Company" or
"Registrant"), are incorporated by reference in this Registration Statement:
(a) the Registrant's Annual Report on Form 10-K for the fiscal year ended
March 31, 2004;
(b) the Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 2004;
(c) the Registrant's Current Reports on Form 8-K filed on July 29, 2004,
August 5, 2004 and August 9, 2004;
(d) the description of the Company's Common Stock, par value $.01 per share
(the "Common Stock"), which is contained in the Company's Registration
Statement filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including any amendment or report filed with the
Commission for the purpose of updating such description of Common Stock.
All documents filed by the Registrant with the Commission pursuant to Sections
13(a), 13(c), 14 or 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 have been
sold or which deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents. Any statement contained herein or 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 other subsequently
filed document which also is incorporated or 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 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation, as amended, provides that
the personal liability of all of its directors of the Company shall be
eliminated to the fullest extent permitted by the Delaware General Corporation
Law (the "DGCL").
In addition, the Company's Certificate of Incorporation, as amended,
and its Bylaws provide that the Company shall indemnify its officers and
directors, and any employee who serves as an officer or director of any
corporation at the Company's request, to the fullest extent permitted under and
in accordance with the DGCL. Under the DGCL, directors and officers as well as
employees and individuals may be indemnified against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement in connection
with specified actions, suits or proceedings, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation as a derivative action) if they acted in good faith and in a manner
they 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 their conduct was unlawful.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
Exhibit
4 2004 Stock Option Plan.
5 Opinion of Reitler Brown & Rosenblatt LLC regarding the legality of
the securities being registered.
23.1 Consent of Miller Ellin & Company, LLP, independent auditors of
Registrant.
23.2 Consent of Reitler Brown & Rosenblatt LLC (included in Exhibit 5
hereto).
24 Power of Attorney (included on signature page).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
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(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer, or controlling person of the Registrant
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 Registrant 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 Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on August 23, 2004.
ELITE PHARMACEUTICALS, INC.
BY: /s/ BERNARD BERK
----------------------------------------------
BERNARD BERK, PRESIDENT AND CHIEF EXECUTIVE
OFFICER
BY: /s/ MARK I. GITTELMAN
----------------------------------------------
MARK I. GITTELMAN, CHIEF FINANCIAL OFFICER AND
TREASURER
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SIGNATURE PAGE
AND
POWER OF ATTORNEY
The undersigned directors of Elite Pharmaceuticals, Inc. by their
execution of this signature page hereby constitute and appoint Mr. Bernard Berk
or Mark I. Gittelman with power to act one without the other, as our true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for us and in our stead, in any and all capacities to sign any
and all amendments (including post-effective amendments) to this Registration
Statement and all documents relating thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
necessary or advisable to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his or her
substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURES TITLE DATE
---------- ----- ----
/s/ Bernard Berk
_______________________ Chairman of the Board and Director August 23, 2004
Bernard Berk
/s/ John Moore
_______________________ Director August 23, 2004
John A. Moore
/s/ Harmon Aronson
_______________________ Director August 23, 2004
Harmon Aronson
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