(8) On October 28, 2008, the Board voted to increase the size of the Board, from 5 directors to 6, directors and elected Mr. Treppel as a director to fill the new seat on the Board created by such increase. On November 6,
2008, the Board appointed Mr. Treppel as the Chairman of the Board.
(9) Based on information provided to the Company by Mr. Treppel as of November 6, 2008. Includes warrants to purchase an aggregate of 882,113 shares of Common Stock and 375,000 shares of Common Stock issuable upon
conversion of shares of Series D Preferred Stock, in each case held by Wheaten HealthCare Partners, LP, of which Mr. Treppel is a general partner.
(10) Based on information provided to the Company as of November 14, 2008, represents options to purchase shares of Common Stock.
(11) Based on information provided by Trellus Management Company, LLC (
TMC
) and Adam Usdan in the Schedule 13G filed February 13, 2007 and
also based on information provided to the Company by TMC as of September 15, 2008 in connection with the Series D Preferred Stock Financing. Represents 22,000,000 shares of Common Stock issuable upon conversion of Series D Preferred Stock held in
the aggregate by Trellus Partners L.P (
TP
), Trellus Partners II L.P. (
TPI
) and
Trellus Offshore Fund Limited (
TPOF
), and 4,703,063 shares of Common Stock issuable upon exercise of Warrants held in the aggregate by TP, TPI and TPOF. Adam Usdan
is the President of TMC. Adam Usdan and TMC share voting power and dispositive power over the shares. Notwithstanding the inclusion of the aforementioned beneficial ownership calculation, pursuant to the terms of the Series D Preferred Certificate
and the Common Stock Purchase Warrant for the aforementioned Warrants, the number of shares of Common Stock into which the shares of Series D Preferred Stock are convertible and the aforementioned Warrants are exercisable is limited to that number
of shares of Common Stock which would result in the Adam Usdan and TMC affiliated entities having aggregate beneficial ownership of not more than 9.99% of the total issued and outstanding shares of Common Stock.
(12) Based on information provided by Mark Fain and Chad Comiteau in their Schedule 13G/A filed February 5, 2008. Mark Fain beneficially owned 1,094,164 shares of Common Stock, which amount includes (i) 168,000 shares
beneficially owned by Mr. Fain over which he has sole voting power and sole dispositive power; (ii) 33,333 convertible shares beneficially owned by Mr. Fain over which he has sole voting power and sole dispositive power; (iii) 33,000 shares
beneficially owned by Stratford Management Money Purchase Pension Plan over which Mr. Fain has shared voting power and shared dispositive power; (iv) 709,831 shares beneficially owned by Stratford Partners, L.P. of which Mr. Fain is a Managing
Member, and over which Mr. Fain has shared voting power and shared dispositive power; and (v) 150,000 convertible shares beneficially owned by Stratford Partners, L.P. over which Mr. Fain has shared voting power and shared dispositive power.
(13) Based on information provided by Mark Fain and Chad Comiteau in their Schedule 13G/A filed February 5, 2008. Chad Comiteau beneficially owned 1,114,096 shares of Common Stock which amount includes (i) 188,600 shares
beneficially owned by Mr. Comiteau over which he has sole voting power and sole dispositive power; (ii) 32,665 convertible shares beneficially owned by Mr. Comiteau over which he has sole voting power and sole dispositive power; (iii) 33,000 shares
beneficially owned by Stratford Management Money Purchase Pension Plan over which he has shared voting power and shared dispositive power; (iv) 709,831 shares beneficially owned by Stratford Partners, L.P. of which Mr. Comiteau is a Managing Member,
and over which Mr. Comiteau has shared voting power and shared dispositive power; and (v) 150,000 convertible shares beneficially owned by Stratford Partners, L.P. over which Mr. Comiteau has shared voting power and shared dispositive power.
(14) Davidson Kempner Healthcare International Ltd. (
DKHI
) and its affiliates, Davidson Kempner Partners (
DKP
), Davidson Kempner Institutional Partners, L.P. (
DKIP
), M.H. Davidson & Co. (
CO
), Davidson Kempner International, Ltd. (
DKIL
), Serena Limited (
Serena
), Davidson Kempner Healthcare Fund LP (
DKHF
), MHD Management Co., Davidson Kempner Advisors Inc.,
Davidson Kempner International Advisors, L.L.C., DK Group LLC, DK Management Partners LP, DK Stillwater GP LLC, Thomas L. Kempner, Jr., Marvin H. Davidson, Stephen M. Dowicz, Scott E. Davidson, Michael J. Leffell, Timothy I. Levart, Robert J.
Brivio, Jr., Anthony A. Yoseloff, Eric P. Epstein and Avram Z. Friedman jointly filed a Schedule 13G/A on February 14, 2008 (the
DK Schedule
), reflecting the
beneficial ownership, subject to an ownership limitation, of an aggregate of 7,967 shares of Series C Preferred Stock convertible into 3,434,052 shares of common stock, 1,030,208 warrants exercisable into 1,030,208 shares of Common Stock and 64,068
shares of Common Stock as a result of their voting and dispositive power over 7,967 Series C Preferred Stock convertible into 3,434,052 shares of Common Stock, 1,030,208 warrants exercisable into 1,030,208 shares of Common Stock and 64,068 shares of
Common stock beneficially owned by DKP, DKIP, DKIL, Serena, CO, DKHF and DKHI. Notwithstanding the inclusion of the aforementioned beneficial ownership calculation, pursuant to our Certificate of Designation of Preferences, Rights and Limitations of
Series C Preferred Stock and the Common Stock Purchase Warrant for the aforementioned warrants, the number of shares of Common Stock into which the Series C Preferred Stock are convertible and the warrants are exercisable is limited to that number
18
of shares of Common Stock which would result in the Davidson Kempner affiliated entities having aggregate beneficial ownership of not more than 9.99% of the total issued and outstanding shares of Common Stock. The above
information was obtained from the DK Schedule.
(15) Includes 20 shares of Series C Preferred Stock convertible into 8,621 shares of Common Stock, 75 shares of Series D Preferred Stock convertible into 375,000 shares of Common Stock, and options and warrants to purchase
an aggregate of 2,763,652 shares of Common Stock.
HOUSEHOLDING OF PROXY MATERIALS
The SEC has adopted rules that permit companies and intermediaries (e.g., brokers) to satisfy the delivery requirements for proxy statements and annual reports with respect to two or more
stockholders sharing the same address by delivering a single proxy statement addressed to those stockholders. This process, which is commonly referred to as householding, potentially means extra convenience for stockholders and cost
savings for companies.
Some brokers and other nominee record holders may be participating in the practice of householding proxy statements and annual reports. A single proxy statement will be delivered to
multiple stockholders sharing an address unless contrary instructions have been received from the affected stockholders. Once you have received notice from your broker that they will be householding communications to your address,
householding will continue until you are notified otherwise or until you revoke your consent. If, at any time, you no longer wish to participate in householding and would prefer to receive a separate proxy statement and
annual report, please notify your broker or direct your written request to Elite Pharmaceuticals, Inc., Attn: Mark Gittelman, Secretary, 165 Ludlow Avenue, Northvale, New Jersey 07647. Stockholders who currently receive multiple copies of the proxy
statement at their address and would like to request householding of their communications should contact their broker.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the SEC under the Securities Exchange Act of 1934, as amended. The SEC maintains an Internet world wide web site that provides
access, without charge, to reports, proxy statements and other information about issuers, like Elite, that file electronically with the SEC. The address of that site is http://www.sec.gov.
You also may obtain copies of these materials by mail from the Public Reference Section of the Securities and Exchange Commission, 100 F Street, N.E., Room 1580 Washington, D.C, 20549, at
prescribed rates. These materials are also available from the SEC in person at any one of its public reference rooms. Please call the SEC at l-800-SEC-0330 for further information on its public reference rooms. You may read and copy this information
at the following location of the SEC:
Public Reference Room
100 F Street, N.E.
Room 1580
Washington, D.C. 20549
You can also obtain, without charge, reports, proxy statements and other information, including without limitation, any information we may incorporate by reference herein, about the Company, by
contacting: Elite Pharmaceuticals, Inc., 165 Ludlow Avenue, Northvale, New Jersey 07647, Attn: Corporate Secretary, telephone: (201) 750-2646, facsimile: (201) 750-2755.
19
FINANCIAL AND OTHER INFORMATION
We are incorporating by reference (i) from our Annual Report on Form 10K for the fiscal year ended March 31, 2008, filed with the SEC on June 27, 2008 (the
Annual
Report
), the financial statements, supplementary financial information, the management discussion and analysis of financial condition and results of operation, quantitative and qualitative disclosures about
market risk, and (ii) from our Quarterly Reports on Form 10-Q filed since the Annual Report, any updates to such information. We have enclosed with this Proxy Statement a copy of our Annual Report and our Quarterly Reports on Form 10-Q for each of
the quarters ended June 30, 2008 and September 30, 2008.
A representative of Miller Ellin & Company, the Companys principal accounting firm for the current fiscal year and the most recently completed fiscal year, is expected to be present
at the Special Meeting. The representative will be given an opportunity to make a statement to the stockholders and will be available to respond to appropriate questions.
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November 21, 2008
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By Order of the Board of Directors
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Mark I. Gittelman, Secretary
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20
ELITE PHARMACEUTICALS, INC.
PROXY FOR SPECIAL MEETING OF STOCKHOLDERS
December 19, 2008
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS
The undersigned hereby appoints Chris Dick and Mark I. Gittelman, and each of them, with full power of substitution, to vote, as a holder of the Common Stock, par value $0.01 per share (Common Stock), of
Elite Pharmaceuticals, Inc., a Delaware corporation (the Company), all the shares of Common Stock which the undersigned is entitled to vote, through the execution of a proxy with respect to the Special Meeting of Stockholders of the
Company (the Special Meeting), to be held at the offices of Reitler Brown & Rosenblatt LLC, 800 Third Avenue, 21
st
Floor, New York, NY 10022, on December
19, 2008 at 10:00 a.m. EST, and any and all adjournments or postponements thereof, and authorizes and instructs said proxies to vote in the manner directed below.
The Board of Directors recommends the vote FOR proposals 1 and 2
.
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1
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.
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Proposal to approve and ratify the Series D Preferred Stock Financing.
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FOR
o
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AGAINST
o
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ABSTAIN
o
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2
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.
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Proposal to approve
and ratify the amendment to the Certificate of Incorporation to increase
the number of authorized shares of Common Stock from 150,000,000 to 210,000,000.
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FOR
o
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AGAINST
o
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ABSTAIN
o
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3
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.
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In their discretion, the proxies are authorized to
vote upon such other business as may
properly
come before such meeting or adjournment or postponement thereof.
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THIS PROXY IS CONTINUED ON THE REVERSE SIDE, PLEASE VOTE, SIGN
AND DATE ON REVERSE SIDE AND RETURN PROMPTLY.
BACK OF CARD
PROPERLY EXECUTED AND RETURNED PROXY CARDS WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE UNDERSIGNED STOCKHOLDER. IF NO INSTRUCTIONS TO THE CONTRARY ARE MADE, THIS PROXY WILL BE VOTED FOR THE ELECTION OF EACH OF
THE NAMED NOMINEES AS DIRECTORS AND PROPOSALS 1 and 2 AS DESCRIBED ON THE REVERSE SIDE OF THIS CARD.
You may revoke this proxy at any time before it is voted by (i) filing a revocation with the Secretary of the Company, (ii) submitting a duly executed proxy bearing a later date or time than the date or time of the proxy
being revoked, or (iii) attending the Special Meeting and voting in person. A stockholders attendance at the Special Meeting will not by itself revoke a proxy given by the stockholder.
(Please sign exactly as the name appears below. Joint owners should each sign. When signing as attorney, executor, administrator, trustee or guardian, please give full title as such. If a corporation, please sign with full
corporate name by president or other authorized officer. If a partnership, please sign in the partnership name by authorized person.)
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Dated:
_______________________
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Signature
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PLEASE COMPLETE, SIGN,
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DATE AND RETURN THE
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PROXY CARD PROMPTLY
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USING THE ENCLOSED
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ENVELOPE.
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Signature, if held by joint owners
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