Item 1.01 Entry into a Material Definitive Agreement.
On March 18, 2009, Elite Pharmaceuticals, Inc., a Delaware corporation (the
Registrant
), entered into the Strategic Alliance
Agreement, dated as of March 18, 2009 (the
Alliance Agreement
), with Epic Pharma, LLC (the
Parent
) and Epic
Investments, LLC (including its successors and assigns, the
Purchaser
and, collectively with the Parent and the Registrant, the
Parties
). The Registrants entry into the Alliance Agreement was previously disclosed by the Registrant in its Current Report on Form 8-K, filed with the U.S. Securities and Exchange Commission
March 23, 2009, and in a press release issued by the Registrant on the same date.
On April 30, 2009, the Parties entered into an Amendment, dated as of April 30, 2009 (the
Amendment
), to the Alliance Agreement
for the purpose of amending and waiving certain provisions of the Alliance Agreement on the terms and conditions contained in the Amendment. A copy of the Amendment is attached to this report as Exhibit 10.1, and the summary of the material terms of
the Amendment set forth below is qualified in its entirety by reference to such exhibit.
In the Amendment, the Parties agreed to extend (the
Extension
) the date by which the conditions precedent to the initial closing
of the transactions contemplated by the Alliance Agreement (such initial closing, the
Initial Closing
and the date of such Initial Closing, the
Initial Closing Date
) must be satisfied or waived, as the case may be, from April 30, 2009 to June 1, 2009. Pursuant to the Amendment, the Registrant received a cash deposit (the
Deposit
) of $250,000, which amount is creditable against the $1,000,000 payment to be made by the Purchaser on the Initial Closing Date. The Registrant may use the Deposit in accordance with
the terms of the Alliance Agreement, however, in the event the Parent terminates the Alliance Agreement pursuant to the terms thereof as the result of a condition precedent set forth in Section 2.11(b) or 2.12(a) of the Alliance Agreement not being
satisfied by the Registrant (other than those which have been waived by the Parent and the Purchaser on or before the Initial Closing Date), the Registrant must promptly refund the Deposit to the Parent. The Amendment also amended the Alliance
Agreement to specifically provide for an Initial Closing Date of May 27, 2009, or such other date as the Parties may mutually agree upon in writing.
The Amendment also extends the date by which the Registrant is required to hold the special meeting of its stockholders for the purpose of obtaining stockholder approval of an amendment to the
Registrants certificate of incorporation that (i) increases the number of authorized shares of the Registrants common stock, par value $0.01 per share (the
Common Stock
) from 210,000,000 shares to 360,000,000 shares and (ii) reduces the par value of the authorized shares of Common Stock from $0.01 to $0.001 per share, and the filing of such amendment to the Registrants certificate
of incorporation with the Secretary of State of Delaware, from June 30, 2009, as originally provided under the Alliance Agreement, to July 31, 2009.
In
the Amendment, the Registrant provides the Parent and Purchaser with additional
representations relating to the conversion of certain shares of the Registrants Series
B 8% Convertible Preferred Stock, par value $0.01 per share (the
Series
B Preferred Stock
), Series C 8% Convertible
Preferred Stock, par value $0.01 per share (the
Series
C Preferred Stock
), and Series D 8% Convertible
Preferred Stock, par value $0.01 per share (the
Series
D Preferred
Stock
and, together
with the Series B Preferred Stock and Series C Preferred Stock, the
Outstanding
Preferred Stock
)
into shares of Common Stock in accordance with the respective terms of the Outstanding
Preferred Stock. In reliance upon such representations, the Parent and the Purchaser
each waived the conditions precedent to the Initial Closing provided for in
the Alliance Agreement which required (i) the conversion of all remaining shares
of the Series B Preferred Stock and Series C Preferred Stock into shares of Common
Stock and (ii) the conversion of such number of additional shares of Series D
Preferred Stock, as the Purchaser determines in its sole discretion, into Common
Stock. Further, the Parent and the Purchaser each acknowledged under the Amendment
that the Registrant complied with its obligation under the Alliance Agreement
to use its best efforts to obtain the agreement of the holders of the Outstanding
Preferred Stock to convert all of their shares of Outstanding Preferred Stock
into Common Stock. The Amendment also amended certain provisions of the Alliance
Agreement and the Certificate of Designation of Preferences, Rights and Limitations
of Series E Convertible Voting Preferred Stock to be filed by the Registrant
with the Secretary of State of Delaware prior to the Initial Closing in accordance
with the waiver by the Parent and Purchaser of the conditions precedent regarding
the conversion of Outstanding Preferred Stock described above.
The Parent and the Purchaser each also waived under the Amendment the condition precedent to the Initial Closing that the Registrant must delist its Common Stock from the NYSE Amex (the
Exchange
). In place of such condition precedent, the Amendment added a new provision to the Alliance Agreement requiring the Registrant to delist its Common Stock from the
Exchange within 30 days following the Initial Closing Date and to cause the Common Stock to be traded on such trading market as required under any agreement, instrument or security to which the Registrant may be a party or may be bound. As disclosed
in Item 3.01 of this report, the Registrant has initiated process to delist its Common Stock from the Exchange and commence quotation on the OTC Bulletin Board.
Item 3.01. Notice of Delistings
or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
On April 30, 2009, the Registrant sent written notice to the Exchange of its intention to effect a voluntary delisting of its Common Stock from the Exchange in order to commence quotation of the
Common Stock on the OTC Bulletin Board. The Registrant also issued a press release on April 30, 2009 indicating that it has initiated process to delist its Common Stock from the Exchange and commence quotation on the OTC Bulletin Board. A copy of
the press release is attached to this report as Exhibit 99.1.
Item 9.01. Financial Statements
and Exhibits
a) Not applicable.
b) Not
applicable.
c) Not
applicable.
d) Exhibits
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Exhibit 10.1
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Amendment, dated as of April 30, 2009, by and between the Registrant, on the one hand, and Epic Pharma, LLC and Epic Investments, LLC, on the other hand, relating to the Strategic
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Alliance Agreement, dated as of March 18, 2009.
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Exhibit 99.1
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Press Release dated April 30, 2009
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: May 6, 2009
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ELITE PHARMACEUTICALS, INC.
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By:
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/s/ Chris Dick
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Chris Dick
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Chief Operating Officer, President
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and Acting Chief Executive
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Officer
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