AS FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 2, 2017
REGISTRATION
NO. 333- 217866
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO.
1 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
ELITE PHARMACEUTICALS, INC.
(Exact name of registrant as specified in
its charter)
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Nevada
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22-3542636
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(State or jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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165 Ludlow Avenue
Northvale, NJ 07647
201-750-2646
(Address including zip code, and telephone
number, including
area code, of principal executive offices)
Nasrat Hakim
Chief Executive Officer
165 Ludlow Avenue
Northvale, NJ 07647
201-750-2646
(Name, address including zip code, and telephone
number,
including area code, of agent for service)
Copies to:
Richard Feiner, Esq.
Wall Street Plaza
88 Pine Street, 22
nd
Floor
New York, NY 10005
212-779-8600
917-720-0863 (fax)
Approximate date of commencement of
proposed sale to the public:
From time to time after the effective date of this registration statement.
If the only securities being
registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box.
¨
If any of the securities being registered
on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest reinvestment plans, check the following box.
x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering.
¨
(COVER CONTINUES ON FOLLOWING PAGE)
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following box.
¨
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions
of “large accelerated filer”, “non-accelerated filer”, “accelerated filer”, “smaller
reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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x
Accelerated filer
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¨
Non-accelerated filer
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¨
Smaller reporting company
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¨
Emerging growth company
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If an emerging growth company, indicate by checkmark
if the registrant has not elected 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.
☐
The registrant hereby amends this Registration
Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment
which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant
to said Section 8(a), may determine.
The information in this
prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting
an offer to buy these securities in any state where the offer or sale is not permitted.
PRELIMINARY PROSPECTUS, SUBJECT TO
COMPLETION, DATED JUNE 2, 2017
PROSPECTUS
ELITE PHARMACEUTICALS, INC.
161,081,100
Shares of
Common Stock
This prospectus relates to the sale or other
disposition from time to time of up to 161,081,100 shares of our common stock, $0.001 par value per share, issued and issuable
to Lincoln Park Capital Fund, LLC, the selling shareholder named in this prospectus, also referred to as Lincoln Park. We are not
selling any shares of common stock under this prospectus and will not receive any of the proceeds from the sale of shares of common
stock by the selling shareholder.
The shares of common stock being offered
by the selling shareholder have been or may be issued pursuant to the purchase agreement dated May 1, 2017 that we entered into
with Lincoln Park, which we refer to in this prospectus as the Purchase Agreement. Please refer to the section of this prospectus
entitled “The Lincoln Park Transaction” for a description of the Purchase Agreement and the section entitled “Selling
Shareholder” for additional information regarding Lincoln Park. The prices at which Lincoln Park may sell the
shares will be determined by the prevailing market price for the shares or in negotiated transactions.
The selling shareholder may sell or otherwise
dispose of the shares of common stock covered by this prospectus in a number of different ways and at varying prices. We provide
more information about how the selling shareholder may sell or otherwise dispose of its shares of common stock in the section entitled
“Plan of Distribution.” The selling shareholder will pay all brokerage fees and commissions and similar expenses. We
will pay all expenses (except brokerage fees and commissions and similar expenses) relating to the registration of the shares with
the Securities and Exchange Commission.
Our common stock is currently quoted
on the Over-the-Counter Bulletin Board, or the OTCBB, under the symbol “ELTP”. On May 31, 2017, the last reported
sale price of our common stock on the OTCBB was $0.20.
Lincoln Park is an underwriter within the
meaning of Section 2(a)(11) of the Securities Act of 1933, as amended.
Investment in the Common Stock involves
a high degree of risk. You should consider carefully the risk factors beginning on page 3 of this prospectus and in the documents
we file with the Securities and Exchange Commission that are incorporated by reference in this prospectus before purchasing any
of the shares offered by this prospectus.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful
or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is June
__, 2017.
ELITE PHARMACEUTICALS, INC.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
Neither we nor the selling shareholder have
authorized any dealer, salesman or other person to provide you with information other than the information contained in or incorporated
by reference into this prospectus. This prospectus does not constitute, and may not be used in connection with, an offer to sell,
or a solicitation of an offer to buy, the common stock offered by this prospectus by any person in any jurisdiction in which it
is unlawful for such person to make such an offer or solicitation. You should not assume that the information contained in this
prospectus is accurate as of any date other than the date on the front cover of the prospectus, or that the information contained
in any document incorporated by reference into this prospectus is accurate as of any date other than the date of the document incorporated
by reference, regardless of the time of delivery of this prospectus or any sale of a security. Our business, financial condition,
results of operations and prospects may have changed since those dates.
PROSPECTUS SUMMARY
This summary description about us and our
business highlights selected information contained elsewhere in this prospectus or incorporated by reference into this prospectus.
It does not contain all the information you should consider before investing in our securities. Important information is incorporated
by reference into this prospectus. To understand this offering fully, you should read carefully the entire prospectus, including
“Risk Factors,” together with the additional information described under “Incorporation By Reference.”
About Us
We are a specialty pharmaceutical company
principally engaged in the development and manufacture of oral, controlled-release products, using proprietary know-how and technology,
particularly as it relates to abuse resistant products.
We focus our efforts on the following areas:
(i) development of our pain management products; (ii) manufacturing of a line of generic pharmaceutical products with approved
Abbreviated New Drug Application’s (“ANDAs”); (iii) development of additional generic pharmaceutical products;
(iv) development of the other products in our pipeline including the products with our partners; (v) commercial exploitation of
our products either by license and the collection of royalties, or through the manufacture of our formulations; and (vi) development
of new products and the expansion of our licensing agreements with other pharmaceutical companies, including co-development projects,
joint ventures and other collaborations.
Our focus is on the development of various
types of drug products, including branded drug products which require new drug applications under Section 505(b)(1) or 505(b)(2)
of the Drug Price Competition and Patent Term Restoration Act of 1984 as well as generic drug products which require ANDAs.
Commercial Products
We own, license or
contract manufacture the following products current being sold commercially:
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Product
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Branded
Product
Equivalent
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Therapeutic
Category
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Launch
Date
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Phentermine HCl 37.5mg tablets
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Adipex-P®
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Bariatric
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April 2011
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Lodrane D ® Immediate Release capsules
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n/a
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OTC Allergy
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September 2011
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Methadone HCl 10mg tablets
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Dolophine®
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Pain
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January 2012
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Hydromorphone HCl 8mg tablets
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Dilaudid®
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Pain
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March 2012
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Phendimetrazine Tartrate 35mg tablets
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Bontril®
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Bariatric
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November 2012
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Phentermine HCl 15mg and 30mg capsules
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Adipex-P®
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Bariatric
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April 2013
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Naltrexone HCl 50mg tablets
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Revia®
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Pain
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September 2013
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Isradipine 2.5mg and 5mg capsules
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n/a
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Cardiovascular
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January 2015
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Hydroxyzine HCl 10mg, 25mg and 50mg tablets
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Atarax®, Vistaril®
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Antihistamine
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April 2015
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Oxycodone HCl Immediate Release 5mg, 10mg, 15mg, 20mg and 30mg tablets
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Roxycodone®
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Pain
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March 2016
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Our principal executive offices and our
manufacturing, warehouse and laboratory facilities are located at 165 and 135 Ludlow Avenue, Northvale, New Jersey 07647, and our
telephone number is (201) 750-2646. Our Northvale facility operates under Current Good Manufacturing Practice and is a United States
Drug Enforcement Agency registered facility for research, development and manufacturing. We maintain a website at “http://www.elitepharma.com.”
Information contained on our website is not considered to be a part of, nor incorporated by reference in, this Prospectus.
About This Offering
On May 1, 2017, we entered into a purchase
agreement with Lincoln Park, which we refer to in this prospectus as the Purchase Agreement, pursuant to which Lincoln Park has
agreed to purchase from us up to $40,000,000 of our common stock (subject to certain limitations) from time to time over a 36-month
period commencing when the Securities Exchange Commission, or SEC, has declared effective the registration statement of which this
prospectus forms a part. We also entered into a registration rights agreement, or the Registration Rights Agreement, with Lincoln
Park, pursuant to which we have filed with the SEC the registration statement that includes this prospectus to register for resale
under the Securities Act of 1933, as amended, or the Securities Act, the shares that have been or may be issued to Lincoln Park
under the Purchase Agreement.
We may, from time to time and at our sole
discretion, direct Lincoln Park to purchase up to 500,000 shares of our common stock on any business day (such purchases, Regular
Purchases), provided that at least one business day has passed since the most recent purchase, and provided that the amount we
may sell to Lincoln Park under a single Regular Purchase may increase under certain circumstances as described in the Purchase
Agreement. However, in no event shall Lincoln Park purchase more than $1,000,000 worth of our common stock on any single business
day. The purchase price of shares of our common stock related to the future funding will be based on the prevailing market prices
of such shares at the time of sales. In addition, we may direct Lincoln Park to purchase other amounts as “accelerated purchases”
under certain circumstances. Our sales of shares of common stock to Lincoln Park under the Purchase Agreement are limited to the
number of shares that would result in the beneficial ownership by Lincoln Park and its affiliates, at any single point in time,
of no more than 4.99% of the then outstanding shares of our common stock. Except for the foregoing, there are no trading volume
requirements or restrictions under the Purchase Agreement, and we will control the timing and amount of any sales of our common
stock to Lincoln Park. The purchase price per share will be equitably adjusted for any reorganization, recapitalization, non-cash
dividend, stock split, reverse stock split or other similar transaction occurring during the business days used to compute such
price. We may at any time in our sole discretion terminate the Purchase Agreement without fee, penalty or cost upon one business
day’s notice. Lincoln Park may not assign or transfer its rights and obligations under the Purchase Agreement. Actual sales
of shares of common stock to Lincoln Park under the Purchase Agreement will depend on a variety of factors to be determined by
us from time to time, including, among others, market conditions, the trading price of the common stock and determinations by us
as to the appropriate sources of funding for us and our operations. Lincoln Park has no right to require any sales by us, but is
obligated to make purchases from us as we direct in accordance with the Purchase Agreement. Lincoln Park has covenanted not to
cause or engage in any manner whatsoever, any direct or indirect short selling or hedging of our shares
Although the Purchase Agreement provides
that we may sell up to $40,000,000 of our common stock to Lincoln Park, only 161,081,100 shares of our common stock are being
offered under this prospectus, which represents (i) 5,540,550 shares that we issued to Lincoln Park as an initial commitment fee;
(ii) an additional 150,000,000 shares which may be sell to Lincoln Park in the future under the Purchase Agreement; and (iii)
5,540,550 shares that we issued to Lincoln Park as an additional commitment fee. If all such shares were issued and outstanding
as of June 2, 2017, such shares would represent approximately 20.9% of the total number of shares of our common stock outstanding,
and 21.1% of the total number of outstanding shares held by non-affiliates; however, these percentages do not give effect to the
prohibition contained in the Purchase Agreement that prevents us from selling and issuing to Lincoln Park shares such that, after
giving effect to such sale and issuance, Lincoln Park and its affiliates would beneficially own, at any single point in time,
more than 4.99% of the then outstanding shares of our common stock. If we elect to issue and sell more than the 161,081,100 shares
offered under this prospectus to Lincoln Park, which we have the right, but not the obligation, to do, we must first register
for resale under the Securities Act any such additional shares, which could cause additional substantial dilution to our shareholders.
The number of shares ultimately offered for resale by Lincoln Park is dependent upon the number of shares we sell to Lincoln Park
under the Purchase Agreement.
Issuances of our common stock in this offering
will not affect the rights or privileges of our existing shareholders, except that the economic and voting interests of each of
our existing shareholders will be diluted as a result of any such issuance. Although the number of shares of common stock that
our existing shareholders own will not decrease, the shares owned by our existing shareholders will represent a smaller percentage
of our total outstanding shares after any such issuance to Lincoln Park.
For more detailed information on the transaction
with Lincoln Park, please see “The Lincoln Park Transaction” in “Selling Shareholder” below.
Securities Offered
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Common stock offered
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161,081,100
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by the selling shareholder
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Common stock outstanding on June 2, 2017, inclusive of issued Commitment Shares, prior to the commencement
of this offering
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775,554,678
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Common stock to be outstanding after giving effect to the issuance of 155,540,550 shares under the Purchase
Agreement
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931,095,228 shares (1)
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Use of Proceeds
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We will receive no proceeds from the sale of shares of common stock by Lincoln Park in this offering. However,
we may receive up to $40,000,000 under the Purchase Agreement with Lincoln Park. Any proceeds that we receive from sales to
Lincoln Park under the Purchase Agreement will be used to fund the research, product development and commercial activities
of the Company, for general and administrative expenses, to pay down liabilities and for working capital. See “Use of
Proceeds.”
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Risk factors
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This investment involves a high degree of risk.
See “Risk Factors” and the risk factors set forth in the documents incorporated by reference for a discussion
of factors you should consider carefully before making an investment decision.
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Symbol on OTCBB
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“ELTP”
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(1) Assumes a sales
price of $0.20 (the closing price of the common stock on May 31, 2017) and includes all shares of our common stock issued and
issuable to Lincoln Park under the Purchase Agreement as commitment shares. The actual sales prices will differ.
RISK FACTORS
Investing in our common stock involves a
high degree of risk. Before deciding whether to purchase shares of our common stock, you should carefully consider the risks and
uncertainties described under “Risk Factors” in the Annual Report on Form 10-K for the fiscal year ended March 31, 2016,
any subsequent Quarterly Report on Form 10-Q and our other filings with the SEC, all of which are incorporated by reference herein.
Please see “Incorporation by Reference”. If any of these risks actually occur, our business, financial condition and
results of operations could be materially and adversely affected and we may not be able to achieve our goals, the value of our
securities could decline and you could lose some or all of your investment. Additional risks not presently known to us or that
we currently deem immaterial may also impair our business operations.
Risk Related to the Offering
The sale or issuance of our common
stock to Lincoln Park may cause dilution and the sale of the shares of common stock acquired by Lincoln Park, or the perception
that such sales may occur, could cause the price of our common stock to fall.
On May 1, 2017, we entered into the Purchase
Agreement with Lincoln Park, pursuant to which Lincoln Park has committed to purchase up to $40,000,000 of our common stock. Concurrently
with the execution of the Purchase Agreement, we issued 5,540,550 shares of our common stock to Lincoln Park as an initial fee
for its commitment to purchase shares of our common stock under the Purchase Agreement. Furthermore, for each additional purchase
by Lincoln Park, additional commitment shares in commensurate amounts up to a total of 5,540,550 shares will be issued based upon
the relative proportion of the aggregate amount of $40,000,000 purchased by Lincoln Park. The purchase shares that may be sold
pursuant to the Purchase Agreement may be sold by us to Lincoln Park at our discretion from time to time over a 36-month period
commencing after the SEC has declared effective the registration statement that includes this prospectus. The purchase price for
the shares that we may sell to Lincoln Park under the Purchase Agreement will fluctuate based on the price of our common stock.
Depending on market liquidity at the time, sales of such shares may cause the trading price of our common stock to fall.
We generally have the right to control the
timing and amount of any sales of our shares to Lincoln Park. Additional sales of our common stock, if any, to Lincoln Park will
depend upon market conditions and other factors to be determined by us. Lincoln Park may ultimately purchase all, some or none
of the shares of our common stock that may be sold pursuant to the Purchase Agreement and, after it has acquired shares, Lincoln
Park may sell all, some or none of those shares. Therefore, sales to Lincoln Park by us could result in substantial dilution to
the interests of other holders of our common stock. Additionally, the sale of a substantial number of shares of our common stock
to Lincoln Park, or the anticipation of such sales, could make it more difficult for us to sell equity or equity-related securities
in the future at a time and at a price that we might otherwise wish to effect sales.
FORWARD-LOOKING STATEMENTS
This prospectus, including disclosures in
the other filings incorporated by reference herein, contains “forward-looking statements”. Such forward-looking statements
involve known and unknown risks, uncertainties and other factors which may cause the actual results, performance or achievements
of the Company, or industry results, to be materially different from any future results, performance or achievements expressed
or implied by such forward-looking statements. When used in this prospectus, statements that are not statements of current or historical
fact may be deemed to be forward-looking statements. Without limiting the foregoing, the words “plan”, “intend”,
“may,” “will,” “expect,” “believe”, “could,” “anticipate,”
“estimate,” “forecast”, “contemplate”, “envisage” or “continue” or
similar expressions or other variations or comparable terminology are intended to identify such forward-looking statements. All
statements other than statements of historical fact included in or incorporated by reference in this prospectus regarding our financial
position, business strategy and plans or objectives for future operations are forward-looking statements. Without limiting the
broader description of forward-looking statements above, we specifically note, without limitation, that statements regarding the
preliminary nature of the clinical program results and the potential for further product development, that involve known and unknown
risks, delays, uncertainties and other factors not under our control, the requirement of substantial future testing, clinical trials,
regulatory reviews and approvals by the Food and Drug Administration and other regulatory authorities prior to the commercialization
of products under development, and our ability to manufacture and sell any products, gain market acceptance earn a profit from
sales or licenses of any drugs or our ability to discover new drugs in the future are all forward-looking in nature. These risks
and other factors are identified under “Risk Factors” in this Prospectus and in other filings with the SEC incorporated
by reference therein. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as
of the date hereof and as of the date of the filings incorporated by reference herein. Except as required by law, the Company undertakes
no obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise.
USE OF PROCEEDS
This prospectus relates to shares of our
common stock that may be offered and sold from time to time by Lincoln Park. We will receive no proceeds from the sale of shares
of common stock by Lincoln Park in this offering. However, we may receive gross proceeds of up to $40,000,000 under the Purchase
Agreement. See “Plan of Distribution” elsewhere in this prospectus for more information.
We expect to use any proceeds that we receive
under the Purchase Agreement to fund the research, product development and commercial activities of the Company, for general and
administrative expenses, to pay down liabilities and for working capital.
SELLING SHAREHOLDER
This prospectus relates to the possible
resale by the selling shareholder, Lincoln Park, of shares of common stock that have been or may be issued to Lincoln Park pursuant
to the Purchase Agreement. We are filing the registration statement of which this prospectus forms a part pursuant to the provisions
of the Registration Rights Agreement, which we entered into with Lincoln Park concurrently with our execution of the Purchase Agreement,
in which we agreed to provide certain registration rights with respect to sales by Lincoln Park of the shares of our common stock
that have been or may be issued to Lincoln Park under the Purchase Agreement.
Lincoln Park, as the selling shareholder,
may, from time to time, offer and sell pursuant to this prospectus any or all of the shares that we have sold or may sell to Lincoln
Park under the Purchase Agreement. The selling shareholder may sell some, all or none of its shares. We do not know how long the
selling shareholder will hold the shares before selling them, and we currently have no agreements, arrangements or understandings
with the selling shareholder regarding the sale of any of the shares.
The following table presents information
regarding the selling shareholder and the shares that it may offer and sell from time to time under this prospectus. The table
is prepared based on information supplied to us by the selling shareholder, and reflects its holdings as of June 2 2017. Neither
Lincoln Park nor any of its affiliates has held a position or office, or had any other material relationship, with us or any of
our predecessors or affiliates. As used in this prospectus, the term “selling shareholder” includes Lincoln Park and
any donees, pledgees, transferees or other successors in interest selling shares received after the date of this prospectus from
Lincoln Park as a gift, pledge or other non-sale related transfer. Beneficial ownership is determined in accordance with Rule
13d-3(d) promulgated by the SEC under the Securities Exchange Act of 1934, as amended, or the Exchange Act. The percentage of
shares beneficially owned prior to the offering is based on 775,554,678 shares of our common stock actually outstanding as of
June 2, 2017.
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Selling Shareholder
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Shares Beneficially Owned as of
June 2, 2017
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Percentage of Outstanding Shares Beneficially
Owned Before this Offering
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No. of Shares to be Sold in this Offering
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Percentage of Outstanding Shares Beneficially
Owned After this Offering
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Lincoln Park Capital Fund, LLC (1)
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5,766,285(2)
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* (3)
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161,081,100(4)
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*
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* Less than 1%
____________________
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(1)
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Josh Scheinfeld and Jonathan Cope, the Managing Members of Lincoln Park Capital, LLC, the manager of Lincoln Park Capital Fund,
LLC, are deemed to be beneficial owners of all of the shares of common stock owned by Lincoln Park Capital Fund, LLC. Messrs. Cope
and Scheinfeld have shared voting and investment power over the shares being offered under the prospectus filed with the SEC in
connection with the transactions contemplated under the Purchase Agreement. Lincoln Park Capital, LLC is not a licensed broker
dealer or an affiliate of a licensed broker dealer.
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(2)
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Represents (i) 5,540,550 shares that we issued to Lincoln Park as an initial commitment fee and (ii) 225,735 shares of common
stock acquired by Lincoln Park prior to the date of the Purchase Agreement. In accordance with Rule 13d-3(d) under the Exchange
Act, we have excluded from the number of shares beneficially owned prior to the offering all of the shares that Lincoln Park may
be required to purchase under the Purchase Agreement, and all of the additional commitment shares, because the issuance of such
shares is solely at our discretion and is subject to certain conditions, the satisfaction of all of which are outside of Lincoln
Park’s control, including the registration statement of which this prospectus is a part becoming and remaining effective.
Furthermore, the maximum amount of each sale of common stock to Lincoln Park under the Purchase Agreement is subject to certain
agreed upon threshold limitations set forth in the Purchase Agreement, including that we may not issue shares of our common stock
to Lincoln Park to the extent that Lincoln Park would, at any time, beneficially own more than 4.99% of our outstanding common
stock.
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(3)
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Based on 775,554,678 outstanding shares of our common stock
as of June 2, 2017, with the above mentioned initial commitment shares deemed issued
as of that date.
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(4)
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Although the Purchase Agreement provides that we may sell up to $40,000,000 of our common stock to Lincoln Park, we have reserved
approximately 150,000,000 shares for sale to Lincoln Park as Purchase Shares and 5,540,550 shares as an additional commitment fee
under the Purchase Agreement.
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The Lincoln Park Transaction
General
On May 1, 2017, we entered into the Purchase
Agreement and the Registration Rights Agreement with Lincoln Park. Pursuant to the terms of the Purchase Agreement, Lincoln Park
has agreed to purchase from us up to $40,000,000 of our common stock (subject to certain limitations) from time to time over a
36-month period. Pursuant to the terms of the Registration Rights Agreement, we have filed with the SEC a registration statement,
of which this prospectus forms a part, to register for resale under the Securities Act the shares that have been or may be issued
to Lincoln Park under the Purchase Agreement.
Upon execution of the
Purchase Agreement, we issued 5,540,550 shares of our common stock to Lincoln Park as consideration for its commitment to purchase
additional shares of our common stock under the Purchase Agreement and we are obligated to issue up to an additional 5,540,550
commitment shares to Lincoln Park pro rata as up to $40,000,000 of our common stock is purchased by Lincoln Park.
Pursuant to a prior
purchase agreement with Lincoln Park dated April 10, 2014 for up to $40,000,000 of our common stock, we sold an aggregate of 110.6
million shares for aggregate gross proceeds of approximately $27.0 million and issued an additional 1.3 million commitment shares.
That prior agreement terminated on June 1, 2017.
Purchase of Shares Under the Purchase Agreement
Under the Purchase Agreement, on any business
day selected by us, we may direct Lincoln Park to purchase up to 500,000 shares of our common stock on any such business day (each
such purchase a “Regular Purchase”). The purchase price per share for each such Regular Purchase will be equal to the
lower of:
• the lowest sale price for our
common stock on the purchase date of such shares; or
• the arithmetic average of the
three lowest closing sale prices for our common stock during the 10 consecutive business days ending on the business day immediately
preceding the purchase date of such shares.
Regular Purchases can be increased: (i)
to up to 600,000 shares if the Closing sale price of the Common Stock is not below $0.20 on the date of purchase; (ii) to up to
700,000 shares if the Closing sale price of the Common Stock is not below $0.25 on the date of purchase; (iii) to up to 800,000
shares if the Closing sale price of the Common Stock is not below $0.30 on the date of purchase; (iv) to up to 900,000 shares if
the Closing sale price of the Common Stock is not below $0.35 on the date of purchase; and (v) to up to 1,000,000 shares if the
Closing sale price of the Common Stock is not below $0.40 on the date of purchase. However, Lincoln Park’s committed obligation
under any single Regular Purchase shall not exceed $1,000,000.
In addition to Regular Purchases described
above, we may also direct Lincoln Park, on any business day on which we have properly submitted a Regular Purchase notice to purchase
an additional amount of our common stock, which we refer to as an Accelerated Purchase, not to exceed the lesser of:
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·
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four times the number of purchase shares purchased pursuant to the corresponding Regular Purchase; and
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·
|
30% of the aggregate shares of our common stock traded during normal trading hours on the purchase date.
|
The purchase price per share for each such
Accelerated Purchase will be equal to the lower of:
|
|
·
|
97% of the volume weighted average price during (i) the entire trading day on the purchase date, if the volume of shares of
our common stock traded on the purchase date has not exceeded a volume maximum calculated in accordance with the Purchase Agreement,
or (ii) the portion of the trading day of the purchase date (calculated starting at the beginning of normal trading hours) until
such time at which the volume of shares of our common stock traded has exceeded such volume maximum; or
|
|
|
·
|
the closing sale price of our common stock on the purchase date.
|
In the case of both Regular Purchases and
Accelerated Purchases, the purchase price per share will be equitably adjusted for any reorganization, recapitalization, non-cash
dividend, stock split, reverse stock split or other similar transaction occurring during the business days used to compute the
purchase price.
Our sales of shares of common stock to Lincoln
Park under the Purchase Agreement are limited to the number of shares that would result in the beneficial ownership by Lincoln
Park and its affiliates, at any single point in time, of no more than 9.99% of the then outstanding shares of our common stock.
Except for the foregoing, there are no trading volume requirements or restrictions under the Purchase Agreement, and we will control
the timing and amount of any sales of our common stock to Lincoln Park.
Events of Default
Events of default under the Purchase Agreement
include the following:
|
|
·
|
the effectiveness of the registration statement of which this prospectus forms a part lapses for any reason (including, without
limitation, the issuance of a stop order), or any required prospectus supplement and accompanying prospectus are unavailable for
the resale by Lincoln Park of our common stock offered hereby, and such lapse or unavailability continues for a period of 5 consecutive
business days or for more than an aggregate of 20 business days in any 365-day period;
|
|
|
·
|
suspension by our principal market of our common stock from trading for a business day;
|
|
|
·
|
the de-listing of our common stock from the OTC Bulletin Board, provided, however, that the Common Stock is not immediately
thereafter trading on the New York Stock Exchange, The NASDAQ Capital Market, The NASDAQ Global Market, The NASDAQ Global Select
Market, the NYSE MKT, the NYSE Arca or the OTC Markets (or nationally recognized successor to any of the foregoing);
|
|
|
·
|
the transfer agent’s failure for three business days to issue to Lincoln Park shares of our common stock which Lincoln
Park is entitled to receive under the Purchase Agreement;
|
|
|
·
|
any breach of the representations or warranties or covenants contained in the Purchase Agreement or any related agreement which
has or which could have a material adverse effect on us subject to a cure period of five business days;
|
|
|
·
|
any voluntary or involuntary participation or threatened participation in insolvency or bankruptcy proceedings by or against
us; or
|
|
|
·
|
if at any time we are not eligible to transfer our common stock electronically.
|
Lincoln Park does not have the right to
terminate the Purchase Agreement upon any of the events of default set forth above. During an event of default, all of which are
outside of Lincoln Park’s control, shares of our common stock cannot be sold by us or purchased by Lincoln Park under the
Purchase Agreement.
Our Termination Rights
We have the unconditional right, at any
time, for any reason and without any payment or liability to us, to give notice to Lincoln Park to terminate the Purchase Agreement.
In the event of bankruptcy proceedings by us or against us (where such proceeding has not been discharged within 90 days), the
Purchase Agreement will automatically terminate without action of any party.
No Short-Selling or Hedging by Lincoln Park
Lincoln Park has agreed that neither it
nor any of its affiliates shall engage in any direct or indirect short-selling or hedging of our common stock during any time prior
to the termination of the Purchase Agreement.
No Variable Rate Transactions
We agreed with Lincoln Park that we will
not enter into any “variable rate” transactions with any third party from the date of the Purchase Agreement until
the 18-month anniversary of the date that sales may commence under the Purchase Agreement, subject to certain exceptions set forth
in the Purchase Agreement.
Effect of Performance of the Purchase Agreement on Our Shareholders
All of the shares of our common stock registered
in this offering which may be sold by us to Lincoln Park under the Purchase Agreement are expected to be freely tradable. It is
anticipated that shares registered in this offering will be sold over a period of up to 36 months commencing on the date that the
registration statement including this prospectus becomes effective. The sale by Lincoln Park of a significant amount of shares
registered in this offering at any given time could cause the market price of our common stock to decline and to be highly volatile.
Lincoln Park may sell all, some or none of the shares it has purchased or will purchase under the Purchase Agreement. Therefore,
sales to Lincoln Park by us under the Purchase Agreement may result in substantial dilution to the interests of other holders of
our common stock. In addition, if we sell a substantial number of shares to Lincoln Park under the Purchase Agreement, or if investors
expect that we will do so, the actual sales of shares or the mere existence of our arrangement with Lincoln Park may make it more
difficult for us to sell equity or equity-related securities in the future at a time and at a price that we might otherwise wish
to effect such sales. However, we have the right to control the timing and amount of any sales of our shares to Lincoln Park and
the Purchase Agreement may be terminated by us at any time at our discretion without any cost to us.
Pursuant to the terms of the Purchase Agreement,
we have the right, but not the obligation, to direct Lincoln Park to purchase up to $40,000,000 of our common stock exclusive of
the shares issued and to be issued to Lincoln Park as a commitment fee. Depending on the price per share at which we sell our common
stock to Lincoln Park, we may be authorized to issue and sell to Lincoln Park under the Purchase Agreement more shares of our common
stock than are offered under this prospectus. If we choose to do so, we must first register for resale under the Securities Act
any such additional shares, which could cause additional substantial dilution to our shareholders. The number of shares ultimately
offered for resale by Lincoln Park under this prospectus is dependent upon the number of shares we direct Lincoln Park to purchase
under the Purchase Agreement.
The following table sets forth the amount
of gross proceeds we would receive from Lincoln Park from our sale of shares to Lincoln Park under the Purchase Agreement at varying
purchase prices:
|
Assumed
Average
Purchase
Price
Per
Share
|
|
|
|
Number
of Registered
Shares
to be Issued
if
Full Purchase
|
|
|
Percentage
of
Outstanding
Shares
After
Giving Effect to
the
Issuance to
Lincoln
Park (1)(2)
|
|
Proceeds
from the Sale
of
Shares to Lincoln
Park
Under the
Purchase
Agreement
|
|
$0.10
|
|
|
|
157,618,256 (2)(4)
|
|
|
17.0 %
|
|
$ 15,000,000
|
|
|
|
|
|
|
|
|
|
|
|
|
$0.1970 (3)
|
|
|
|
159,633,631 (2)(4)
|
|
|
17.2 %
|
|
$ 29,550,000
|
|
|
|
|
|
|
|
|
|
|
|
|
$0.25
|
|
|
|
160,734,816 (2)(4)
|
|
|
17.3 %
|
|
$ 37,500,000
|
|
|
|
|
|
|
|
|
|
|
|
|
$0.35
|
|
|
|
125,366,814 (2) (4)
|
|
|
14.0 %
|
|
$ 40,000,000
|
|
|
|
|
|
|
|
|
|
|
|
|
$0.45
|
|
|
|
99,969,989 (2)(4)
|
|
|
11.5 %
|
|
$ 40,000,000
|
_______________
|
|
(1)
|
The denominator is based on the number of shares outstanding
as of June 2, 2017, inclusive of 5,540,550 commitment shares issued as of that date.
|
|
|
(2)
|
Does not give effect to the prohibition contained in the Purchase Agreement that prevents us from selling and issuing to Lincoln
Park shares such that, after giving effect to such sale and issuance, Lincoln Park and its affiliates would beneficially own, at
any single point in time, more than 4.99% of the then outstanding shares of our common stock.
|
|
|
(3)
|
The closing sale price of our shares on May 31, 2017.
|
|
|
(4)
|
Although the Purchase Agreement provides that we may sell up to $40,000,000 of our common stock to Lincoln Park, we have initially
reserved approximately 150,000,000 shares for sale to Lincoln Park under the Purchase Agreement, not including share representing
an additional commitment fee.
|
PLAN OF DISTRIBUTION
The common stock offered by this prospectus
is being offered by the selling shareholder, Lincoln Park. The common stock may be sold or distributed from time to time by the
selling shareholder directly to one or more purchasers or through brokers, dealers, or underwriters who may act solely as agents
at market prices prevailing at the time of sale, at prices related to the prevailing market prices, at negotiated prices, or at
fixed prices, which may be changed. The sale of the common stock offered by this prospectus could be effected in one or more of
the following methods:
|
|
·
|
ordinary brokers’ transactions;
|
|
|
·
|
transactions involving cross or block trades;
|
|
|
·
|
through brokers, dealers, or underwriters who may act solely as agents;
|
|
|
·
|
“at-the-market” into an existing market for the common stock;
|
|
|
·
|
in other ways not involving market makers or established business markets, including direct sales to purchasers or sales effected
through agents;
|
|
|
·
|
in privately negotiated transactions; or
|
|
|
·
|
any combination of the foregoing.
|
In order to comply with the securities
laws of certain states, if applicable, the shares may be sold only through registered or licensed brokers or dealers. In addition,
in certain states, the shares may not be sold unless they have been registered or qualified for sale in the state or an exemption
from the state’s registration or qualification requirement is available and complied with.
Lincoln Park is an “underwriter”
within the meaning of Section 2(a)(11) of the Securities Act.
Lincoln Park has informed us that it intends
to use an unaffiliated broker-dealer to effectuate all sales, if any, of the common stock that it may purchase from us pursuant
to the Purchase Agreement. Such sales will be made at prices and at terms then prevailing or at prices related to the then current
market price. Each such unaffiliated broker-dealer will be an underwriter within the meaning of Section 2(a)(11) of the Securities
Act. Lincoln Park has informed us that each such broker-dealer will receive commissions from Lincoln Park that will not exceed
customary brokerage commissions. In compliance with the guidelines of the Financial Industry Regulatory Authority, Inc., or FINRA,
the maximum consideration or discount to be received by any FINRA member or independent broker dealer may not exceed 8% of the
aggregate amount of the securities offered pursuant to this prospectus.
Brokers, dealers, underwriters or agents
participating in the distribution of the shares as agents may receive compensation in the form of commissions, discounts, or concessions
from the selling shareholder and/or purchasers of the common stock for whom the broker-dealers may act as agent. The compensation
paid to a particular broker-dealer may be less than or in excess of customary commissions. Neither we nor Lincoln Park can presently
estimate the amount of compensation that any agent will receive.
We know of no existing arrangements between
Lincoln Park or any other shareholder, broker, dealer, underwriter or agent relating to the sale or distribution of the shares
offered by this prospectus. At the time a particular offer of shares is made, a prospectus supplement, if required, will be distributed
that will set forth the names of any agents, underwriters or dealers and any compensation from the selling shareholder, and any
other required information.
We will pay the expenses incident to the
registration, offering, and sale of the shares to Lincoln Park. We have agreed to indemnify Lincoln Park and certain other persons
against certain liabilities in connection with the offering of shares of common stock offered hereby, including liabilities arising
under the Securities Act or, if such indemnity is unavailable, to contribute amounts required to be paid in respect of such liabilities.
Lincoln Park has agreed to indemnify us against liabilities under the Securities Act that may arise from certain written information
furnished to us by Lincoln Park specifically for use in this prospectus or, if such indemnity is unavailable, to contribute amounts
required to be paid in respect of such liabilities.
Lincoln Park has represented to us that
at no time prior to the Purchase Agreement has it or its agents, representatives or affiliates engaged in or effected, in any manner
whatsoever, directly or indirectly, any short sale (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act)
of our common stock or any hedging transaction, which establishes a net short position with respect to our common stock. Lincoln
Park has agreed that during the term of the Purchase Agreement, it, its agents, representatives or affiliates will not enter into
or effect, directly or indirectly, any of the foregoing transactions.
We have advised Lincoln Park that it is
required to comply with Regulation M promulgated under the Exchange Act. With certain exceptions, Regulation M precludes the selling
shareholder, any affiliated purchasers, and any broker-dealer or other person who participates in the distribution from bidding
for or purchasing, or attempting to induce any person to bid for or purchase any security which is the subject of the distribution
until the entire distribution is complete. Regulation M also prohibits any bids or purchases made in order to stabilize the price
of a security in connection with the distribution of that security. All of the foregoing may affect the marketability of the securities
offered by this prospectus.
This offering will terminate on the date
that all shares offered by this prospectus have been sold by Lincoln Park.
Our common stock is quoted on the OTCBB
under the symbol “ELTP”.
LEGAL MATTERS
The validity of the Common Stock offered
in this Prospectus has been passed upon for us by Richard Feiner, Esq., Wall Street Plaza, 88 Pine Street, 22
nd
Floor,
New York, New York 10005.
EXPERTS
The consolidated financial statements incorporated
in this Prospectus by reference to the Annual Report on Form 10-K for the year ended March 31, 2016, have been audited by Buchbinder
Tunick & Company LLP, an independent registered public accounting firm, as stated in their report incorporated by reference
herein, and have been so incorporated in reliance upon such report and upon the authority of such firm as experts in accounting
and auditing.
The consolidated financial statements as
of March 31, 2015 and for each of the two years then ended, incorporated in this Prospectus by reference to the Annual Report on
Form 10-K for the year ended March 31, 2016, have been audited by Berkower LLC (formerly known as Demetrius Berkower LLC), an independent
registered public accounting firm, as stated in their report incorporated by reference herein, and have been so incorporated in
reliance upon such report and upon the authority of such firm as experts in accounting and auditing.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION
Our directors and officers are indemnified
by our articles of incorporation and bylaws to the fullest extent legally permissible under the laws of Nevada against all expenses,
liability and loss, reasonably incurred by them in connection with the defense of any action, suit or proceeding in which they
are a party by reason of being or having been directors or officers of the Company. Unless our Board determines by a majority vote
of a quorum of disinterested directors that, based upon the facts known, such person acted in bad faith and in a manner that such
person did not believe to be in or not opposed to our best interest (or, with respect to any criminal proceeding, that such person
believed or had reasonable cause to believe his conduct was unlawful), costs, charges and expenses (including attorneys’ fees)
incurred by such person in defending a civil or criminal proceeding shall be paid by the Company in advance upon receipt of an
undertaking to repay all amounts advanced if it is ultimately determined that the person is not entitled to be indemnified by the
Company as authorized by the bylaws, and upon satisfaction of other conditions required by current or future legislation. Insofar
as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to such directors, officers
and controlling persons pursuant to the foregoing provisions, or otherwise, we have 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 us of expenses incurred or paid by such director, officer or controlling person
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, we will, unless in the opinion of 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.
WHERE YOU CAN FIND MORE INFORMATION
We are required to file annual and quarterly
reports and other information with the SEC. You may read and copy any materials we file with the SEC at the SEC’s Public Reference
Room at 100 F Street, N.E., Room 1580, Washington, D.C., 20549. Please call 1-800-SEC-0330 for further information on the operation
of the Public Reference Room. Our filings will also be available to the public from commercial document retrieval services and
at the web site maintained by the SEC at http://www.sec.gov. Except as described below, our reports and other information that
we have filed, or may in the future file, with the SEC are not incorporated by reference into and do not constitute part of this
prospectus.
We have filed with the SEC a registration
statement on Form S-3 (including the exhibits, schedules and amendments thereto) under the Securities Act, with respect to the
shares of our common stock that may be resold by Lincoln Park. This prospectus does not contain all of the information set forth
in the registration statement and the exhibits and schedules thereto. For further information with respect to the common stock
offered hereby, we refer you to the registration statement and the exhibits and schedules filed therewith. Statements contained
in this prospectus as to the contents of any contract, agreement or any other document are summaries of the material terms of such
contract, agreement or other document and are not necessarily complete. With respect to each of these contracts, agreements or
other documents filed as an exhibit to the registration statement, reference is made to the exhibits for a more complete description
of the matter involved.
We also maintain a website at http://www.elitepharma.com
through which you can access our filings with the SEC. The information contained in, or accessible through, our website is not
a part of this prospectus.
INFORMATION INCORPORATED BY REFERENCE
The SEC permits us to “incorporate
by reference” the information contained in documents we have filed with the SEC, which means that we can disclose important
information to you by referring you to those documents rather than by including them in this prospectus. Information that is incorporated
by reference is considered to be part of this prospectus and you should read it with the same care that you read this prospectus.
We incorporate by reference our documents
listed below and any future filings made by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act between
the date of this prospectus and the termination of the offering of the securities described in this prospectus. We are not, however,
incorporating by reference any documents or portions thereof, whether specifically listed below or filed in the future, that are
not deemed “filed” with the SEC, including any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or
related exhibits furnished pursuant to Item 9.01 of Form 8-K.
This prospectus incorporates by reference
the documents set forth below that have previously been filed with the SEC:
|
|
·
|
our Annual Report on Form 10-K for the year ended March 31, 2016, filed on June 15, 2016;
|
|
|
·
|
Our Quarterly Reports on Form 10-Q for the quarters ended June 30, 2016, September 30, 2016 and December 31, 2016, filed, respectively
on August 9, 2016, November 9, 2016, February 9, 2017;
|
|
|
·
|
our Current
Reports on Form 8-K filed on April 12, 2016, May 4, 2016, June 15, 2016, June 15, 2016,
July 21, 2016, August 9, 2016, August 31, 2016, September 1, 2016, December 22, 2016,
February 9, 2017 (as amended on Form 8-K/A and filed on May 1, 2017), April 28, 2017,
May 2, 2017 and May 22, 2017; and
|
|
|
·
|
The description of our common stock contained in our registration statement on Form 8-A filed with the SEC on February 16,
2000.
|
Any statement contained in any document
incorporated by reference herein will be deemed to be modified or superseded for purposes of this prospectus to the extent that
a statement contained in this prospectus or any prospectus supplement modifies or supersedes such statement. Any statement so modified
or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We will provide without charge to each
person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral request, a copy of any or all
documents that are incorporated by reference into this prospectus, but not delivered with the prospectus, other than exhibits to
such documents unless such exhibits are specifically incorporated by reference into the documents that this prospectus incorporates.
You should direct your request in writing to us at Corporate Secretary, 165 Ludlow Avenue, Northvale, New Jersey 07647 or visiting
our website at http://www.elitepharma.com.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
We will pay all expenses in connection with the registration
and sale of the common stock by the selling shareholder. The estimated expenses of issuance and distribution are set
forth below.
|
SEC filing fee
|
|
$
|
3,323
|
|
|
Legal expenses
|
|
$
|
5,000
|
*
|
|
Accounting expenses
|
|
$
|
5,000
|
*
|
|
Miscellaneous
|
|
$
|
5,000
|
*
|
|
Total
|
|
$
|
18,323
|
*
|
* Estimate
Item 15. Indemnification of Directors and Officers
Our directors and officers are indemnified
by our articles of incorporation and bylaws to the fullest extent legally permissible under the laws of Nevada against all expenses,
liability and loss, reasonably incurred by them in connection with the defense of any action, suit or proceeding in which they
are a party by reason of being or having been directors or officers of the Company. Unless our Board determines by a majority vote
of a quorum of disinterested directors that, based upon the facts known, such person acted in bad faith and in a manner that such
person did not believe to be in or not opposed to our best interest (or, with respect to any criminal proceeding, that such person
believed or had reasonable cause to believe his conduct was unlawful), costs, charges and expenses (including attorneys’ fees)
incurred by such person in defending a civil or criminal proceeding shall be paid by the Company in advance upon receipt of an
undertaking to repay all amounts advanced if it is ultimately determined that the person is not entitled to be indemnified by the
Company as authorized by the bylaws, and upon satisfaction of other conditions required by current or future legislation. Insofar
as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to such directors, officers
and controlling persons pursuant to the foregoing provisions, or otherwise, we have 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 us of expenses incurred or paid by such director, officer or controlling person
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, we will, unless in the opinion of 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.
Item 16. Exhibits
The exhibits listed in the index below
are filed as part of this report.
|
Exhibit Number
|
Description
|
|
|
|
|
2.1
|
Agreement and Plan of Merger between Elite Pharmaceuticals, Inc., a Delaware corporation (“Elite-Delaware”) and Elite Pharmaceuticals, Inc., a Nevada corporation (“Elite-Nevada”), incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed with the SEC on January 9, 2012.
|
|
|
|
|
4.1
|
Form of specimen certificate for Common Stock of the Company, incorporated by reference to Exhibit 4.1 to the Form SB-2.*
|
|
|
|
|
4.2
|
Warrant to purchase shares of Common Stock issued to Epic Investments, LLC in the initial closing of the Strategic Alliance Agreement, dated as of March 18, 2009, by and among the Company, Epic Pharma, LLC and Epic Investments, LLC, incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K, dated June 1, 2009, and filed with the SEC on June 5, 2009.*
|
|
|
|
|
4.3
|
Rights Agreement, dated as of November 15, 2013, between the Company and American Stock Transfer & Trust Company, LLC., incorporated by reference to Exhibit 1 to the Registration Statement on Form 8-A filed with the SEC on November 15, 2013.
|
|
4.4
|
Form of Series H Preferred Stock Certificate, incorporated by reference to Exhibit 1 to the Registration Statement on Form 8-A filed with the SEC on November 15, 2013.
|
|
|
|
|
4.5
|
Hakim Warrant dated April 28, 2017 incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K, dated April 28, 2017 and filed with the SEC on April 28, 2017.
|
|
|
|
|
10.1
|
Purchase Agreement, dated as of May 1, 2017 by and between Elite Pharmaceuticals, Inc. and Lincoln Park Capital Fund, incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K, dated May 2, 2017 and filed with the SEC on May 2, 2017.
|
|
|
|
|
10.2
|
Registration Rights Agreement, dated as of May 1, 2017 by and between Elite Pharmaceuticals, Inc. and Lincoln Park Capital Fund, incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K, dated May 2, 2017 and filed with the SEC on May 2, 2017.
|
|
|
|
|
5.1
|
Opinion of Richard Feiner, Esq.**
|
|
|
|
|
23.1
|
Consent of Buchbinder Tunick & Company LLP, Independent Registered Public Accounting Firm***
|
|
|
|
|
23.2
|
Consent of Berkower LLC, Independent Registered Public Accounting Firm ***
|
|
|
|
|
23.3
|
Consent of Richard Feiner, Esq. (included in Exhibit 5.1).
|
|
|
|
|
24.1
|
Power of Attorney (included on the signature page hereto).**
|
|
|
*
|
On January 5, 2011, the Company changed its domicile from
Delaware to Nevada. All corporate documents from Delaware have been superseded by Nevada corporate documents filed or incorporated
by reference herein. All outstanding Delaware securities certificates are now outstanding Nevada securities certificates.
|
Item 17.
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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective registration statement.
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)(1)(i), (a)(1)(ii) and
(a)(1)(iii) of this section 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 SEC by the registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration statement.
2. 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 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.
4. That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
i. Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
ii. Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however , that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
5. That,
for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant
pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
i. Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
ii. Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
iii. The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
iv. Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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
(and, where applicable, each filing of an employee benefit plan’s annual report pursuant to 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 provisions described in Item 15 above, or otherwise, the registrant has been advised
that in the opinion of the SEC 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.
The undersigned registrant also hereby undertakes that:
(a) For the purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(b) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus 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.
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-3
and has duly caused this amendment no. 1 to the registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the city of Northvale, State of New Jersey, on June 2, 2017.
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ELITE PHARMACEUTICALS, INC.
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(Registrant)
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By:
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/s/ Nasrat Hakim
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Nasrat Hakim,
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Chief Executive Officer
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Pursuant to the requirements of the Securities
Act of 1933, this amendment no. 1 to the registration statement has been signed by the following persons in the capacities and
on the dates indicated below.
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Signature
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Title
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Date
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/s/ Nasrat Hakim
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Chief Executive Officer
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Nasrat Hakim
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(Principal Executive) and Director
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June 2, 2017
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/s/ Carter Ward
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Chief Financial Officer (Principal Financial Officer),
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Carter Ward
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Treasurer, Secretary and Chief Accounting Officer
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June 2, 2017
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*
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Director
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Barry Dash
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June 2, 2017
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*
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Director
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Eugene Pfeifer
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June 2, 2017
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*
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Director
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Davis Caskey
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June 2, 2017
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*
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Director
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Jeffrey Whitnell
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June 2, 2017
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* By:
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s/Nasrat
Hakim
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Nasrat Hakim,
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Attorney-in-Fact
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Elite Pharmaceuticals, Inc.
Amendment No, 1 to
Registration Statement on Form S-3
Index to Exhibits
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Exhibit No.
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Description
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23.1
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Consent of Buchbinder Tunick & Company LLP, independent registered public accounting
firm.
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23.2
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Consent of Berkower LLC, Independent Registered Public Accounting Firm
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Grafico Azioni Elite Pharmaceuticals (QB) (USOTC:ELTP)
Storico
Da Mar 2025 a Apr 2025
Grafico Azioni Elite Pharmaceuticals (QB) (USOTC:ELTP)
Storico
Da Apr 2024 a Apr 2025
