sec document
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(AMENDMENT NO. 4)1
ELITE PHARMACEUTICALS,INC.
--------------------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK, $.01 PAR VALUE
--------------------------------------------------------------------------------
(Title of Class of Securities)
28659T200
--------------------------------------------------------------------------------
(CUSIP Number)
THOMAS J. FLEMING, ESQ.
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
505 Park Avenue
New York, New York 10022
(212) 753-7200
--------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 23, 2002
--------------------------------------------------------------------------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box |_|.
Note. Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See Rule 13d-7
for other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 28 Pages)
--------
1 The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
--------------------------- ---------------------
CUSIP No. 28659T200 13D Page 2 of 28 Pages
--------------------------- ---------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
BRIDGE VENTURES, INC.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X|
(b) |_|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC, OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
FLORIDA
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 369,970(1)
OWNED BY
EACH
REPORTING
PERSON WITH -----------------------------------------------------------------
8 SHARED VOTING POWER
-0-
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
369,970(1)
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
369,970(1)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.8%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) Consists of (a) 284,720 shares of Common Stock and (b) 85,250 shares
of Common Stock issuable upon the exercise of warrants.
--------------------------- ---------------------
CUSIP No. 28659T200 13D Page 3 of 28 Pages
--------------------------- ---------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
SMACS HOLDING CORP.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X|
(b) |_|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
FLORIDA
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 121,000(1)
OWNED BY
EACH
REPORTING
PERSON WITH -----------------------------------------------------------------
8 SHARED VOTING POWER
-0-
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
121,000(1)
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
121,000(1)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.2%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) Consists of (a) 46,000 shares of Common Stock and (b) 75,000 shares
of Common Stock issuable upon the exercise of warrants.
--------------------------- ---------------------
CUSIP No. 28659T200 13D Page 4 of 28 Pages
--------------------------- ---------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
BRIDGE VENTURES, INC. EMPLOYEE PENSION PLAN
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X|
(b) |_|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
FLORIDA
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 102,200(1)
OWNED BY
EACH
REPORTING
PERSON WITH -----------------------------------------------------------------
8 SHARED VOTING POWER
-0-
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
102,200(1)
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
102,200(1)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.0%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
EP
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) Consists of (a) 92,200 shares of Common Stock and (b) 10,000 shares
of Common Stock issuable upon the exercise of warrants.
--------------------------- ---------------------
CUSIP No. 28659T200 13D Page 5 of 28 Pages
--------------------------- ---------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
HARRIS FREEDMAN
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X|
(b) |_|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 492,970(1)
OWNED BY
EACH
REPORTING
PERSON WITH -----------------------------------------------------------------
8 SHARED VOTING POWER
102,200(2)
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
492,970(1)
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
102,200(2)
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
595,170(1)(2)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.0%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) Consists of (a) 2,000 shares of Common Stock, (b) 369,970 shares of
Common Stock owned by Bridge Ventures, Inc. (including 85,250 shares
of Common Stock issuable upon exercise of warrants owned by Bridge
Ventures, Inc.) and (c) 121,000 shares of Common Stock owned by
SMACS Holding Corp. (including 75,000 shares of Common Stock
issuable upon exercise of warrants owned by SMACS Holding Corp.).
(2) Consists of 102,200 shares of Common Stock owned by Bridge Ventures,
Inc. Employee Pension Plan (including 10,000 shares of Common Stock
issuable upon exercise of warrants owned by Bridge Ventures, Inc.
Employee Pension Plan).
--------------------------- ---------------------
CUSIP No. 28659T200 13D Page 6 of 28 Pages
--------------------------- ---------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
SHARON WILL
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X|
(b) |_|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
PF, OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 240,800(1)
OWNED BY
EACH
REPORTING
PERSON WITH -----------------------------------------------------------------
8 SHARED VOTING POWER
-0-
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
240,800(1)
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
240,800(1)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.4%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) Consists of (a) 7,500 shares of Common Stock, (b) 217,500 shares of
Common Stock owned by Saggi Capital Corp. (including 110,000 shares
of Common Stock issuable upon exercise of warrants owned by Saggi
Capital Corp.), (c) 7,450 shares of Common Stock owned by Saggi
Capital Corp. Money Purchase Plan, and (d) 8,350 shares of Common
Stock owned by Saggi Capital Corp. Profit Sharing Plan.
--------------------------- ---------------------
CUSIP No. 28659T200 13D Page 7 of 28 Pages
--------------------------- ---------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
SAGGI CAPITAL CORP.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X|
(b) |_|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC, OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
NEW YORK
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 217,500(1)
OWNED BY
EACH
REPORTING
PERSON WITH -----------------------------------------------------------------
8 SHARED VOTING POWER
-0-
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
217,500(1)
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
217,500(1)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.2%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) Consists of (a) 107,500 shares of Common Stock and (b) 110,000
shares of Common Stock issuable upon the exercise of warrants.
--------------------------- ---------------------
CUSIP No. 28659T200 13D Page 8 of 28 Pages
--------------------------- ---------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
SAGGI CAPITAL CORP. MONEY PURCHASE PLAN
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X|
(b) |_|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
NEW YORK
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 7,450
OWNED BY
EACH
REPORTING
PERSON WITH -----------------------------------------------------------------
8 SHARED VOTING POWER
-0-
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
7,450
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
7,450
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
EP
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
--------------------------- ---------------------
CUSIP No. 28659T200 13D Page 9 of 28 Pages
--------------------------- ---------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
SAGGI CAPITAL CORP. PROFIT SHARING PLAN
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X|
(b) |_|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
NEW YORK
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 8,350
OWNED BY
EACH
REPORTING
PERSON WITH -----------------------------------------------------------------
8 SHARED VOTING POWER
-0-
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
8,350
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
8,350
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
EP
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
--------------------------- ---------------------
CUSIP No. 28659T200 13D Page 10 of 28 Pages
--------------------------- ---------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
MICHAEL H. FREEDMAN
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X|
(b) |_|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
PF, OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 23,500(1)
OWNED BY
EACH
REPORTING
PERSON WITH -----------------------------------------------------------------
8 SHARED VOTING POWER
-0-
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
23,500(1)
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
23,500(1)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.2%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) Consists of (a) 18,500 shares of Common Stock and (b) 5,000 shares
of Common Stock issuable upon the exercise of warrants.
--------------------------- ---------------------
CUSIP No. 28659T200 13D Page 11 of 28 Pages
--------------------------- ---------------------
The following constitutes Amendment No. 4 ("Amendment No. 4") to the
Schedule 13D filed by the undersigned. This Amendment No. 4 amends and restates
the Schedule 13D as specifically set forth below.
Item 2 is hereby amended to add the following:
In connection with the Settlement Agreement (as defined and
described in Item 4), the Reporting Persons have agreed to terminate their
solicitation efforts to elect three directors at the next annual meeting of
stockholders of Elite and to withdraw their preliminary proxy statement filed
with the Securities and Exchange Commission on September 30, 2002. Accordingly,
the Committee has been disbanded.
Item 4 is hereby amended to add the following:
On October 23, 2002, the Committee entered into a settlement
agreement with the Issuer (the "Settlement Agreement"). Pursuant to the terms of
the Settlement Agreement, the Committee agreed to terminate its proxy
solicitation efforts and to support the election of the seven individuals
nominated by the Issuer's Board of Directors for election at the Issuer's annual
meeting of stockholders, scheduled for December 12, 2002. The Issuer has agreed
to commence promptly an exchange offer pursuant to which holders of the Issuer's
Class A Warrants expiring on November 30, 2002 will have the opportunity to
exchange those warrants for new warrants upon payment to the Issuer of $0.10 per
warrant share. The new warrants will be exercisable for the same number of
shares of the Issuer's common stock as the existing Class A Warrants, will have
an exercise price of $5.00 per share (subject to adjustment in certain
circumstances), reduced from the $6.00 exercise price of the old warrants, and
will expire on November 30, 2005. The Committee and the Issuer have also agreed
not to take certain actions prior to the completion of the annual meeting. In
addition, the parties have agreed to end all litigation relating to the election
contest which commenced in August 2002 and to release each other from claims
relating thereto. A copy of the Settlement Agreement is attached as an exhibit
hereto and incorporated herein by reference.
Item 7 is hereby amended to add the following exhibit:
4. Settlement Agreement dated October 23, 2002, by and among Elite
Pharmaceuticals, Inc., Harris Freedman, Sharon Will, Michael H.
Freedman, Bridge Ventures, Inc., Bridge Ventures, Inc. Employee
Pension Plan, SMACS Holding Corp., Saggi Capital Corp., Saggi
Capital Corp. Money Purchase Plan, and Saggi Capital Corp.
Profit Sharing Plan.
--------------------------- ---------------------
CUSIP No. 28659T200 13D Page 12 of 28 Pages
--------------------------- ---------------------
SIGNATURES
After reasonable inquiry and to the best of his knowledge and
belief, each of the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: October 24, 2002 BRIDGE VENTURES, INC.
By:/s/ Harris Freedman
---------------------------------
Harris Freedman, Secretary
SMACS HOLDING CORP.
By:/s/ Harris Freedman
---------------------------------
Harris Freedman, Secretary
BRIDGE VENTURES, INC.
EMPLOYEE PENSION PLAN
By:/s/ Harris Freedman
---------------------------------
Harris Freedman, Trustee
/s/ Harris Freedman
------------------------------------
HARRIS FREEDMAN
SAGGI CAPITAL CORP.
By:/s/ Sharon Will
---------------------------------
Sharon Will, President
SAGGI CAPITAL CORP.
MONEY PURCHASE PLAN
By:/s/ Sharon Will
---------------------------------
Sharon Will, Trustee
SAGGI CAPITAL CORP.
PROFIT SHARING PLAN
By:/s/ Sharon Will
---------------------------------
Sharon Will, Trustee
/s/ Sharon Will
------------------------------------
SHARON WILL
/s/ Michael H. Freedman
------------------------------------
MICHAEL H. FREEDMAN
--------------------------- ---------------------
CUSIP No. 28659T200 13D Page 13 of 28 Pages
--------------------------- ---------------------
EXHIBIT INDEX
Exhibit Page
------- ----
1. Joint Filing Agreement dated August 5, 2002 (previously
filed).
2. Letter from Harris Freedman to Elite Pharmaceuticals, Inc.
dated August 5, 2002 (previously filed).
3. Letter from Harris Freedman to Elite Pharmaceuticals, Inc.
dated August 29, 2002 (previously filed).
4. Settlement Agreement dated October 23, 2002, by and among 14 to 28
Elite Pharmaceuticals, Inc., Harris Freedman, Sharon Will,
Michael H. Freedman, Bridge Ventures, Inc., Bridge
Ventures, Inc. Employee Pension Plan, SMACS Holding
Corp., Saggi Capital Corp., Saggi Capital Corp. Money
Purchase Plan, and Saggi Capital Corp. Profit Sharing Plan.
--------------------------- ---------------------
CUSIP No. 28659T200 13D Page 14 of 28 Pages
--------------------------- ---------------------
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT, dated October 23, 2002, by and among
Elite Pharmaceuticals, Inc., a Delaware corporation ("Elite" or the "Company"),
Harris Freedman, Sharon Will, Michael H. Freedman, Bridge Ventures, Inc., a
Florida corporation, Bridge Ventures, Inc. Employee Pension Plan, SMACS Holding
Corp., a Florida corporation, Saggi Capital Corp., a New York corporation, Saggi
Capital Corp. Money Purchase Plan, and Saggi Capital Corp. Profit Sharing Plan
(collectively the "Freedman Group").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, on August 5, 2002 the Freedman Group commenced a consent
solicitation to remove three of the four members of Elite's board of directors
(the "Consent Solicitation"); and
WHEREAS, in connection with the Consent Solicitation, on August 26,
2002, the Freedman Group filed a definitive consent solicitation statement (the
"Solicitation Statement") with the Securities and Exchange Commission (the
"Commission"); and
WHEREAS, on September 16, 2002 Elite filed with the Commission a
definitive consent revocation statement (the "Revocation Statement"); and
WHEREAS, Elite solicited revocations of consents (the "Revocation
Solicitation"); and
WHEREAS, Elite commenced litigation against the Freedman Group in
the United States District Court for the District of New Jersey in the matter
encaptioned Elite Pharmaceuticals, Inc. v. Harris Freedman, et al., bearing
docket number 02-CV-4191 (the "New Jersey Action"), alleging, among other
things, that the Freedman Group had violated Sections 13(d) and 14(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations of the Commission promulgated thereunder in connection with the
Consent Solicitation; and
WHEREAS, in the New Jersey Action, on September 6, 2002, the Court
denied the application of Elite for a temporary restraining order against the
Freedman Group and, on October 1, 2002, denied Elite's motions for a preliminary
injunction and sanctions against the Freedman Group; and
WHEREAS, the Consent Solicitation ended on October 4, 2002; and
WHEREAS, on September 30, 2002, the Freedman Group filed a
preliminary proxy statement (the "Freedman Proxy Statement") with the Commission
proposing to solicit proxies from stockholders in favor of the election of three
members of the Freedman Group and stating the intention of the Freedman Group to
contest the election of directors at the next annual meeting of Elite's
stockholders (the "Freedman Proxy Solicitation"); and
--------------------------- ---------------------
CUSIP No. 28659T200 13D Page 15 of 28 Pages
--------------------------- ---------------------
WHEREAS, the Board of Directors of Elite has set November 1, 2002 as
the record date (the "Record Date") for the annual meeting of stockholders to be
held on December 12, 2002 (together with any adjournments or postponements
thereof as permitted hereby, the "Annual Meeting"); and
WHEREAS, on October 7, 2002, Elite filed a preliminary proxy
statement (the "Company Preliminary Proxy Statement") with the Commission
relating to the election of directors at the Annual Meeting and stating the
intention of Elite's Board of Directors to contest the Freedman Proxy
Solicitation and to solicit in favor of the election of seven individuals
nominated by the Board of Directors (the "Company Nominees") (the "Company Proxy
Solicitation"); and
WHEREAS, Elite and the Freedman Group have agreed to resolve certain
disputes between them on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, and intending to be legally bound, the parties
hereto hereby agree as follows:
ARTICLE I
DISMISSAL OF NEW JERSEY ACTION
Section 1.1. Dismissal of Action. Not later than the end of the
business day immediately following the date on which this Agreement is executed
and delivered by all parties hereto (the "Effective Date"), Elite shall execute
and file, or cause its counsel to execute and file, such stipulations and other
documents as may be necessary to effect the dismissal of the New Jersey Action
with prejudice and without costs to any party.
ARTICLE II
TERMINATION OF FREEDMAN PROXY SOLICITATION
Section 2.1. Termination of Proxy Solicitation. The Freedman Group
shall immediately terminate the Freedman Proxy Solicitation. Without limiting
the generality of the foregoing, not later than one business day after then
Effective Date, the Freedman Group shall notify the staff of the Commission in
writing that it has terminated the Freedman Proxy Solicitation and is
withdrawing the Freedman Proxy Statement. Promptly following the Effective Date,
the Freedman Group shall cause its Schedule 13D with respect to Elite to be
amended consistent with the terms of this Agreement.
Section 2.2. No Solicitation at Annual Meeting and Prohibition on
Other Actions.
--------------------------- ---------------------
CUSIP No. 28659T200 13D Page 16 of 28 Pages
--------------------------- ---------------------
No member of the Freedman Group shall, directly or indirectly:
(a) become a "participant" (as such term is defined in
Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in
or assist any third party in any "solicitation" of "proxies" (as such terms are
defined in Rule 14a-1 promulgated under the Exchange Act) for use at the Annual
Meeting (whether or not the solicitation is subject to the provisions of Rules
14a-3 to 14a-15 and specifically including any solicitation pursuant to Rule
14a-2(b)(1)), make any exempt communication pursuant to Rule 14a-1(l)(2)(iv) or
otherwise seek to advise or influence any person or entity or assist any third
party in so advising or influencing any person or entity with respect to the
giving or withholding of any proxy or vote at the Annual Meeting, other than in
favor of the election of the Company Nominees.
(b) assert, commence or maintain or assist any third party in
asserting, commencing or maintaining any claim, action or proceeding before any
court, agency or other governmental authority (including, without limitation,
the Commission and any state securities commissioner) (i) seeking to enjoin,
delay or accelerate the Annual Meeting, (ii) seeking to enjoin the solicitation
of proxies by the Board of Directors for use at the Annual Meeting, or (iii)
alleging that the Company Proxy Statement, the definitive proxy statement to be
prepared by Elite for mailing to stockholders in connection with the Annual
Meeting (the "Company Proxy Statement") and any accompanying soliciting
materials or any additional soliciting materials delivered to stockholders by
Elite violates Rule 14a-9 or contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statement contained
therein, in light of the circumstances under which they were made, not
misleading.
(c) other than as expressly provided herein, grant any proxy
with respect to the Annual Meeting or deposit any of the Elite securities held
by the Freedman Group in a voting trust or subject them to a voting agreement or
other arrangement of similar effect with respect to the Annual Meeting.
(d) make any proposal for consideration at the Annual Meeting.
(e) participate in or assist any third party in any solicitation
of written consents with regard to Elite prior to the Annual Meeting.
Section 2.3. No Public Statements or Other Actions. Prior to the
completion of the Annual Meeting, no member of the Freedman Group nor any of
their respective officers, directors, employees, affiliates or agents shall make
any public announcement or statement with respect to, or submit a proposal for,
or offer of (with or without conditions) any extraordinary transaction
involving, Elite, its directors or officers, or any of its securities or assets
(including, without limitation, any plan or proposal that would relate to or
would result in any of the actions set forth in clauses (a) through (j) of Item
4 of Schedule 13D promulgated under the Exchange Act) or form, join or in any
way participate in a "group" as defined in Section 13(d)(3) of the Exchange Act
in connection with any of the foregoing. Prior to the completion of the Annual
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CUSIP No. 28659T200 13D Page 17 of 28 Pages
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Meeting, neither the Company nor any of its officers, directors, employees,
affiliates or agents shall make any public announcement or statement relating to
the Freedman Group, the Consent Solicitation, the Freedman Proxy Solicitation or
the New Jersey Action other than (i) to describe the terms of this Agreement or
(ii) as may be required to comply with applicable Federal and State securities
laws, rules and regulations or the rules and regulations of any stock exchange
or stock market on which Elite's securities are then listed, quoted or admitted
to trading.
Section 2.4. Election of Company Nominees. Each member of the
Freedman Group shall cause all voting securities held of record by it on the
Record Date or over which it has or shares voting power (the "Securities") to be
represented at the Annual Meeting and to be voted at the Annual Meeting in favor
of the Company Nominees.
Section 2.5. Proxy. In order to assure the performance of the
obligations of the Freedman Group hereunder, each member of the Freedman Group
is simultaneously herewith providing Elite with an irrevocable proxy authorizing
Elite to vote the Securities as described above at the Annual Meeting (the
"Proxy") in the form of Exhibit C hereto. Elite shall have the right to deliver
the Proxy on behalf of the members of the Freedman Group in the event that any
member of the Freedman Group does not perform its obligations hereunder. Each
member of the Freedman Group hereby agrees that the Proxy is coupled with an
interest and therefore is irrevocable. Each member of the Freedman Group hereby
irrevocably revokes any and all proxies given or granted with regard to the
Securities other than as provided in this Agreement or the Proxy.
ARTICLE III
EXCHANGE OFFER
Section 3.1. Exchange Offer.
(a) Promptly following the Effective Date, Elite shall prepare
and disseminate to all holders of its outstanding Class A Warrants expiring
November 30, 2002 (the "Old Warrants") an exchange offer (the "Exchange Offer")
pursuant to which Elite shall offer to exchange the Old Warrants for new
warrants having the terms and conditions summarized below (the "New Warrants")
for a price of $0.10 per share of Elite common stock (the "Common Stock")
covered thereby. The Exchange Offer shall be made to the eligible warrantholders
irrespective of whether the Old Warrants shall have expired when the Exchange
Offer is consummated. The Exchange Offer shall be open for 20 business days (or
such longer period as the Board of Directors of Elite shall determine in its
sole discretion) and shall otherwise comply with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), the Exchange Act and
the rules and regulations of the Commission promulgated thereunder.
(b) The New Warrants will (i) be exercisable for the same number
of shares of Common Stock as the Old Warrants, (ii) have an exercise price of
$5.00 per share (subject to appropriate adjustment in the event of any stock
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CUSIP No. 28659T200 13D Page 18 of 28 Pages
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split, reverse stock split, stock dividend, recapitalization or reclassification
occurring after the date hereof in respect of the Common Stock), (iii) expire on
November 30, 2005 (the "Expiration Date"), and (iv) except as set forth herein
will have substantially all of the same other terms and conditions as the Old
Warrants. The New Warrants shall provide that (i) if the Warrant Shares
Registration Statement (as defined below) is not effective on any day during the
thirty (30) day period immediately prior to and including the Expiration Date
(the "Thirty Day Period"), and (ii) Elite's Common Stock trades at a price
greater than $5.00 (subject to appropriate adjustment in the event of any stock
split, reverse stock split, stock dividend, recapitalization or reclassification
occurring after the date hereof in respect of the Common Stock) on any trading
day on which the Warrant Shares Registration Statement is not effective during
the Thirty Day Period, then the Expiration Date shall be extended to the 30th
day after the date on which the Warrant Shares Registration Statement is again
effective and available for the exercise of the New Warrants. Such provisions
shall apply to any subsequent suspension of the Warrant Shares Registration
Statement occurring prior to the then-current Expiration Date.
(c) In connection with the Exchange Offer, promptly following
the Effective Date (but not later than forty five (45) days thereafter), Elite
shall prepare and file with the Commission a registration statement on an
appropriate form registering the New Warrants and the shares of Common Stock
issuable upon exercise thereof (the "Registration Statement") and shall use
commercially reasonable efforts to cause the Registration Statement to become
effective, including to respond to all comments from the Commission and to file
all amendments to the Registration Statement so required to respond to such
comments. Except as otherwise provided below, Elite shall maintain the
effectiveness of the Registration Statement until such time as the New Warrants
are no longer outstanding (the "Effectiveness Termination Date"). In addition,
in connection with the Exchange Offer, Elite shall comply with applicable
securities or "blue sky" laws; provided, however, that in no event shall Elite
be obligated to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to so
qualify but for this subsection (c) or (ii) file any general consent to service
of process in any jurisdiction where it is not as of the date hereof so subject.
(d) Elite shall use commercially reasonable efforts to cause the
Registration Statement to remain effective until the termination or expiration
of the Exchange Offer. Thereafter, Elite shall not be obligated to maintain the
effectiveness of the Registration Statement with respect to the New Warrants. In
addition, Elite shall not be required to maintain the effectiveness of the
Registration Statement with respect to the shares of Common Stock issuable upon
the exercise of the New Warrants (the "Warrant Shares") until the earlier to
occur of (i) Elite becoming eligible to use Form S-3 (or any successor
"short-form" registration statement) to register the Warrant Shares (the "S-3
Eligibility Date") or (ii) such time as the "Average Trading Price" (as defined
below) of the Common Stock is equal to or greater than $4.00 (subject to
appropriate adjustment in the event of any stock split, reverse stock split,
stock dividend, recapitalization or reclassification occurring after the date
hereof in respect of the Common Stock) (the earlier of such dates, the
"Registration Event").
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CUSIP No. 28659T200 13D Page 19 of 28 Pages
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(e) Promptly after the occurrence of the Registration Event (but
in no event later than 15 days thereafter), Elite shall prepare and file with
the Commission either (i) a post-effective amendment to the Registration
Statement, which shall be on Form S-3 (or such successor form) if the
Eligibility Date has occurred, or (ii) a new registration statement, which shall
be on Form S-3 (or such successor form) if the Eligibility Date has occurred
(such post-effective amendment or new registration statement, the "Warrant
Shares Registration Statement") registering the Warrant Shares and shall use
commercially reasonable efforts to cause the Warrant Shares Registration
Statement to become effective, including to respond to all comments from the
Commission and to file all amendments to the Warrant Shares Registration
Statement so required to respond to such comments. Elite shall use commercially
reasonable efforts to maintain the effectiveness of the Warrant Shares
Registration Statement until the Effectiveness Termination Date; provided,
however, that (i) Elite shall have the right to convert any Warrant Shares
Registration Statement that is not on Form S-3 (or such successor form) to a
registration statement on Form S-3 (or such successor form) in the event that
the Registration Event occurs prior to the S-3 Eligibility Date and (ii) Elite's
obligation to maintain the effectiveness of the Warrant Shares Registration
Statement shall be suspended during any period after the occurrence of a
Registration Event and prior to the S-3 Eligibility Date during which the
Average Trading Price of the Common Stock is less than $4.00 (subject to
appropriate adjustment in the event of any stock split, reverse stock split,
stock dividend, recapitalization or reclassification occurring after the date
hereof in respect of the Common Stock).
(f) As used herein "Average Trading Price" means, as of any date
of determination, the arithmetic average of the closing prices of the Common
Stock on the American Stock Exchange, or such successor exchange or other
exchange or market on which the Common Stock is then listed or quoted for
exchange for the twenty (20) consecutive trading days ending on the trading day
immediately prior to the date of determination.
(g) Prior to the S-3 Eligibility Date, Elite shall deliver or
cause to be delivered to all holders of New Warrants, (i) the information
required by Rule 14a-3(b) promulgated pursuant to the Exchange Act and (ii) the
information required by Items 401, 402 and 403 of Regulation S-K promulgated
pursuant to the Securities Act.
(h) Notwithstanding the other provisions of this Section 3.1,
Elite may suspend the use of the prospectus contained in the Registration
Statement for a period not to exceed 45 days in any 180-day period or an
aggregate of 90 days in any 365 day period if the Board of Directors of the
Company shall have determined in good faith that because of valid business
reasons (not including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets, pending corporate
developments and similar events, it is in the best interests of the Company to
suspend such use, and prior to suspending such use the Company provides
warrantholders with written notice of such suspension, which notice need not
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CUSIP No. 28659T200 13D Page 20 of 28 Pages
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specify the nature of the event giving rise to such suspension. Notwithstanding
the registration of the Exchange Offer, the New Warrants will not be
transferable except by operation of law. Any Old Warrants not exchanged pursuant
to the terms of the Exchange Offer will expire in accordance with their terms.
Section 3.2. Expenses. Elite will pay all expenses associated with
the Exchange Offer and the Registration Statement excluding discounts,
commissions, fees of underwriters, selling brokers, dealer managers or similar
securities industry professionals.
ARTICLE IV
ADDITIONAL AGREEMENTS
Section 4.1. Company Nominees. The Company shall not remove John A.
Moore, John P. de Neufville and Richard A. Brown (the "New Company Nominees")
from the slate of Company Nominees nominated by Elite's Board of Directors for
election at the Annual Meeting. In the event that any of the New Company
Nominees dies, resigns or refuses to serve as a director of Elite, Elite shall
have the right, but not the obligation, to appoint a successor nominee (a
"Replacement Nominee") reasonably satisfactory to the Freedman Group (except as
provided below) for election at the Annual Meeting, subject to the requirements
of applicable law. If Elite desires to appoint a Replacement Nominee, Elite
shall provide the Freedman Group with written notice thereof, which notice shall
include disclosure of the proposed Replacement Nominee's age, background and
relevant experience. If the Freedman Group reasonably objects to the Replacement
Nominee, the Freedman Group shall so notify the Company in writing on or prior
to the second business day after receipt of the Company's notice. If the
Freedman Group approves of the Replacement Nominee or does not timely object
thereto, the Replacement Nominee shall become a "New Company Nominee" and a
"Company Nominee" for all purposes hereunder. If the Freedman Group timely
objects to the appointment of such Replacement Nominee, then Elite shall have
the right, at its option, to either (i) withdraw the Replacement Nominee's
appointment, or (ii) to proceed with the appointment of such Replacement
Nominee. In the event that Elite proceeds with the appointment of the
Replacement Nominee in accordance with clause (ii) of the preceding sentence,
Elite shall notify the Freedman Group thereof in writing and the Freedman Group
shall not be obligated to vote the Securities in favor of such Replacement
Nominee at the Annual Meeting and such Replacement Nominee shall not be a
Company Nominee hereunder.
Section 4.2. Restrictions on Certain Actions. Prior to the
conclusion of the Annual Meeting, the Board of Directors of Elite shall not
adopt or announce the adoption of a stockholders' rights plan and shall not
amend or seek stockholder approval at the Annual Meeting for the amendment of
Elite's certificate of incorporation or by-laws; provided, however, that such
restrictions shall not apply in the event that any person or entity makes any
proposal or public announcement relating to, or seeks information that would
lead to any such proposal, or seeks to negotiate with Elite regarding, the
merger or consolidation of Elite with or into any other entity, the sale, lease,
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CUSIP No. 28659T200 13D Page 21 of 28 Pages
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transfer or other disposition of all or any substantial portion of Elite's
assets, the acquisition of any securities of Elite or any other similar
extraordinary corporate transaction.
Section 4.3. Annual Meeting. The Company shall not adjourn, delay,
postpone or otherwise fail to convene and conclude the Annual Meeting for more
than 15 days from December 12, 2002 without the prior written consent of a
majority of the New Company Nominees.
Section 4.4. Press Releases. Not later than one business day after
the Effective Date, the Freedman Group shall issue and disseminate a press
release in the form of Exhibit A hereto and Elite shall issue and disseminate a
press release in the form of Exhibit B hereto. Neither party shall make any
public statement inconsistent with its respective press release.
ARTICLE V
ELITE RELEASE
Section 5.1. Elite Release. Each of the members of the Freedman
Group, on its own behalf and on behalf of their respective officers, directors,
employees, agents, representatives, heirs, successors and assigns, and anyone
claiming by or through any of the foregoing (collectively, the "Freedman
Releasors"), does hereby release and forever discharge Elite and its directors,
officers, employees, agents, representatives and attorneys (collectively, "Elite
Releasees"), of and from all manner of actions, causes of action, suits, account
reckonings, covenants, agreements, damages, judgments, claims and demands
whatsoever, at law or in equity arising from or relating to (i) the Consent
Solicitation, the Solicitation Statement, the Revocation Statement, the
Revocation Solicitation, the New Jersey Action, the Freedman Proxy Statement,
the Freedman Proxy Solicitation, the Company Preliminary Proxy Statement, the
Company Proxy Statement, the Company Proxy Solicitation (collectively, the
"Election Contest"), or (ii) the determination by the Board of Directors of
Elite not to extend the Old Warrants other than as set forth herein, which the
Freedman Releasors ever had, now have, or may hereafter have; provided, however,
that this release shall not extend to the terms and provisions of this
Agreement.
Section 5.2. Agreement Not to Sue. The Freedman Group, on its own
behalf and on behalf of the other Freedman Releasors, covenants, to the maximum
extent permitted by law, that neither it nor any Freedman Releasor shall at any
time hereafter file, commence or maintain or authorize or permit any third party
to file, commence or maintain on its behalf, any suit, action or proceeding
before any federal, state or local court, administrative body, agency or
authority or arbitral organization or other tribunal against the Elite Releasees
with respect to the matters covered by the release set forth in Section 5.1.
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CUSIP No. 28659T200 13D Page 22 of 28 Pages
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ARTICLE VI
FREEDMAN GROUP RELEASE
Section 6.1. Freedman Group Release. Elite, on its own behalf and on
behalf of its officers, directors, employees, agents, representatives,
successors and assigns, and anyone claiming by or through any of the foregoing
(collectively, the "Elite Releasors") does hereby release and forever discharge
each member of the Freedman Group and their respective directors, officers,
employees, agents, representative and attorneys (collectively, "Freedman
Releasees"), of and from all manner of actions, causes of action, suits, account
reckonings, covenants, agreements, damages, judgments, claims and demands
whatsoever, at law or in equity arising from or relating to the Election
Contest, which the Elite Releasors ever had, now have, or may hereafter have;
provided, however, that this release shall not extend to the terms and
provisions of this Agreement.
Section 6.2. Agreement Not to Sue. Elite, on its own behalf and on
behalf of the other Elite Releasors, covenants, to the maximum extent permitted
by law, that neither it nor any Elite Releasor shall at any time hereafter file,
commence or maintain or authorize or permit any third party to file, commence or
maintain on its behalf, any suit, action or proceeding before any federal, state
or local court, administrative body, agency or authority or arbitral
organization or other tribunal against the Freedman Releasees with respect to
the matters covered by the release set forth in Section 6.1.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES RELATING TO THE FREEDMAN GROUP
The members of the Freedman Group, jointly and severally, represent
and warrant to Elite as follows:
Section 7.1. Organization. Each member of the Freedman Group that is
an entity is duly organized, validly existing and in good standing under the
laws of the state of its jurisdiction of organization.
Section 7.2. Authorization. Each member of the Freedman Group has
full power and authority to execute and deliver this Agreement and to perform
its obligations hereunder, all of which have been duly authorized by all
requisite corporate, partnership or limited liability company action, as the
case may be. This Agreement has been duly authorized, executed and delivered by
each member of the Freedman Group and constitutes a valid and binding agreement
of each such member, enforceable against such member in accordance with its
terms.
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CUSIP No. 28659T200 13D Page 23 of 28 Pages
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ARTICLE VIII
REPRESENTATIONS AND WARRANTIES RELATING TO ELITE
Elite represents and warrants to the Freedman Group as follows:
Section 8.1. Organization. Elite is duly organized, validly existing
and in good standing under the laws of the State of Delaware.
Section 8.2. Authorization. Elite has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder, all
of which have been duly authorized by all requisite corporate action. This
Agreement has been duly authorized, executed and delivered by Elite and
constitutes a valid and binding agreement of Elite, enforceable against it in
accordance with its terms.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Notices. All notices or other communications required
or permitted hereunder shall be in writing and shall be delivered personally, by
facsimile or sent by certified, registered or express air mail, or overnight
carrier, postage prepaid, and shall be deemed given when so delivered
personally, or by facsimile, or if mailed, five (5) days after the date of
mailing, or if sent by overnight carrier, one (1) business day after the date of
delivery to such overnight carrier, as follows:
If to the Freedman Group, to the address set forth on the signature pages hereto
With a copy to: Olshan Grundman Frome Rosenzweig & Wolosky, LLP
505 Park Avenue
New York, New York 10022
Telephone: (212) 753-7200
Facsimile: (212) 755-1467
Attention: Thomas J. Fleming, Esq.
If to Elite: Elite Pharmaceuticals, Inc.
165 Ludlow Avenue
Northvale, New Jersey 07647
Telephone: (201) 750-2646
Facsimile: (201) 750-2755
Attention: Atul M. Mehta, President
With a copy to: Lowenstein Sandler PC
65 Livingston Avenue
Roseland, New Jersey 07068
Telephone: (973) 597-2382
Facsimile: (973) 597-2383
Attention: John D. Hogoboom, Esq.
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CUSIP No. 28659T200 13D Page 24 of 28 Pages
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or to such other address as any party hereto shall notify the other parties
hereto (as provided above) from time to time.
Section 9.2. Expenses. Except as expressly provided herein, each
party hereto shall pay its own expenses incident to this Agreement and the
transactions contemplated herein.
Section 9.3. Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by, and construed in accordance with, the internal laws of the
State of New Jersey, without reference to the choice of law principles thereof.
Each of the parties hereto irrevocably submits to the exclusive jurisdiction of
the courts of the State of New Jersey and the United States District Court for
the District of New Jersey for the purpose of any suit, action, proceeding or
judgment relating to or arising out of this Agreement and the transactions
contemplated hereby. Each of the parties hereto irrevocably consents to the
jurisdiction of any such court in any such suit, action or proceeding and to the
laying of venue in such court. Each party hereto irrevocably waives any
objection to the laying of venue of any such suit, action or proceeding brought
in such courts and irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
Section 9.4. Assignment; Successors and Assigns; Third Party Rights.
This Agreement may not be assigned by operation of law or otherwise, and any
attempted assignment shall be null and void. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
successors, assigns and legal representatives. Except as set forth in Sections
5.1, 5.2 and 6.1 and 6.2 hereof, this Agreement shall be for the sole benefit of
the parties to this Agreement and their respective heirs, successors, assigns
and legal representatives and is not intended, nor shall be construed, to give
any person, other than the parties hereto and their respective heirs,
successors, assigns and legal representatives, any legal or equitable right,
remedy or claim hereunder.
Section 9.5. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original agreement, but all of
which together shall constitute one and the same instrument.
Section 9.6. Titles and Headings. The headings in this Agreement are
for reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
Section 9.7. Entire Agreement. This Agreement, including the Exhibit
attached hereto, constitutes the entire agreement among the parties with respect
to the matters covered hereby and supersedes all previous written, oral or
implied understandings among them with respect to such matters.
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CUSIP No. 28659T200 13D Page 25 of 28 Pages
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Section 9.8. Amendment and Modification. This Agreement may only be
amended or modified in writing signed by the party against whom enforcement of
such amendment or modification is sought.
Section 9.9. Waiver. Any of the terms or conditions of this
Agreement may be waived at any time by the party or parties entitled to the
benefit thereof, but only by a writing signed by the party or parties waiving
such terms or conditions.
Section 9.10. Severability. The invalidity of any portion hereof
shall not affect the validity, force or effect of the remaining portions hereof.
If it is ever held that any restriction hereunder is too broad to permit
enforcement of such restriction to its fullest extent, such restriction shall be
enforced to the maximum extent permitted by law.
SECTION 9.11. NO STRICT CONSTRUCTION. EACH OF THE PARTIES HERETO
ACKNOWLEDGE THAT THIS AGREEMENT HAS BEEN PREPARED JOINTLY BY THE PARTIES HERETO,
AND SHALL NOT BE STRICTLY CONSTRUED AGAINST ANY PARTY.
Section 9.12. Equitable Relief. Each of the parties hereto
acknowledge that this Agreement is unique and that none of the parties hereto
could be made whole by money damages in the event of a breach of the terms and
provisions hereof. Accordingly, each of the parties hereto shall have the right,
in addition to any other rights and remedies available at law or in equity, to
equitable relief (including specific performance and temporary, preliminary and
permanent injunctive relief) in the event of any breach or threatened breach by
any party of the terms hereof and shall not be required to post any bond or
security in connection therewith.
[INTENTIONALLY LEFT BLANK; SIGNATURES BEGIN ON THE NEXT PAGE]
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CUSIP No. 28659T200 13D Page 26 of 28 Pages
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement or caused this Agreement to be duly executed by their authorized
representative, as of the day and year first above written.
ELITE PHARMACEUTICALS, INC.
By:/s/ Atul M. Mehta
---------------------------------
Name: Atul M. Mehta
Title: President
/s/ Harris Freedman
---------------------------------
Harris Freedman
Address: 1241 Gulf of Mexico Dr.
Telephone: Longboat Key, FL 34228
Facsimile: 941 387-8388
/s/ Sharon Will
---------------------------------
Sharon Will
Address: 9 Prospect Hill Rd. Ext.
Telephone: Pine Plains, NY 12567
Facsimile: 518 398-6369
518 398-7230
/s/ Michael H. Freedman
---------------------------------
Michael H. Freedman
Address: 200 E. 89th St., NY, NY 10128
Telephone: (212) 426-7499
Facsimile: (212) 722-0553
BRIDGE VENTURES, INC.
/s/ Harris Freedman
---------------------------------
Name: Harris Freedman
Title: Secretary
Address: 1241 Gulf of Mexico Dr.
Telephone: Longboat Key, FL 34228
Facsimile: 941 387-8388
[SIGNATURES CONTINUE ON THE NEXT PAGE]
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CUSIP No. 28659T200 13D Page 27 of 28 Pages
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BRIDGE VENTURES, INC. EMPLOYEE
PENSION PLAN
By: /s/ Harris Freedman
-------------------------------
Name: Harris Freedman
Title: Trustee
Address: 1241 Gulf of Mexico Dr.
Telephone: Longboat Key, FL 34228
Facsimile: 941 387-8388
SMACS HOLDING CORP.
By: /s/ Harris Freedman
-------------------------------
Name: Harris Freedman
Title: Secretary
Address: 1241 Gulf of Mexico Dr.
Telephone: Longboat Key, FL 34228
Facsimile: 941 387-8388
SAGGI CAPITAL CORP.
By: /s/ Sharon Will
-------------------------------
Name: Sharon Will
Title: President
Address: 9 Prospect Hill Rd. Ext.
Telephone: Pine Plains, NY 12567
Facsimile: 518 398-6369
518 398-7230
SAGGI CAPITAL CORP. MONEY
PURCHASE PLAN
By: /s/ Sharon Will
-------------------------------
Name: Sharon Will
Title: Trustee
Address: 9 Prospect Hill Rd. Ext.
Telephone: Pine Plains, NY 12567
Facsimile: 518 398-6369
518 398-7230
[SIGNATURES CONTINUE ON THE NEXT PAGE]
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CUSIP No. 28659T200 13D Page 28 of 28 Pages
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SAGGI CAPITAL CORP. PROFIT
SHARING PLAN
By: /s/ Sharon Will
-------------------------------
Name: Sharon Will
Title: Trustee
Address: 9 Prospect Hill Rd. Ext.
Telephone: Pine Plains, NY 12567
Facsimile: 518 398-6369
518 398-7230