Exhibit 10.1
Execution
Version
AMENDMENT, dated as of April 30, 2009 (this “
Amendment ”), by and between Elite Pharmaceuticals,
Inc., a Delaware corporation (the “ Company ”),
on the one hand, and Epic Pharma, LLC, a Delaware limited liability
company (the “ Parent ”), and Epic Investments,
LLC, a Delaware limited liability company (including its successors
and assigns, the “ Purchaser ”), on the other
hand, relating to a certain STRATEGIC ALLIANCE AGREEMENT, dated as
of March 18, 2009 (the “ Alliance Agreement ”;
capitalized terms used herein and not otherwise defined have the
meaning assigned to such terms in the Alliance Agreement).
WHEREAS,
the parties hereto have agreed to amend and waive certain
provisions of the Alliance Agreement on the terms and subject to
the conditions contained herein.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained
herein, and for other good and valuable consideration the receipt
and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1.
Amendments . The Alliance Agreement is hereby amended as
follows:
(a) Article
I is amended by:
(1) amending
the definition of Initial Closing Date to read as follows: “
Initial Closing Date ” means May 27, 2009 or
such other date as the Parties may mutually agree upon in
writing;
(2) amending
the definition of Ten Percent Stockholders to read as follows:
“ Ten Percent Stockholders ” means the holders
of ten percent (10%) or more of the issued and outstanding shares
of Common Stock on the Initial Closing Date, after giving effect to
(a) the issuance of the Initial Closing Shares pursuant to this
Agreement and (b) the conversion of the Outstanding Preferred Stock
into Common Stock in accordance with the Conversion Notices.
(3) adding
a definition for the term “Deposit” which shall read as
follows: “ Deposit ” shall have the meaning
assigned to such term in Section 2.1A. ”
(b) The
following Section 2.1A is hereby inserted immediately following
Section 2.1 and before Section 2.2:
2.1A
Good Faith Deposit . On or before April 30, 2009, Parent
shall deliver the sum of Two Hundred Fifty Thousand Dollars
($250,000) to the Company as a good faith deposit (the “
Deposit ”) to be applied against the amount payable
under Section 2.1 above. Upon receipt thereof, the Company shall be
free to use such funds in accordance with Section 4.7 herein,
provided, however, in the event Parent shall terminate this
Agreement pursuant to clause (x) of Section 6.1 below
as the result of the conditions
precedent set forth in Section 2.11(b) or 2.12(a) not being
satisfied, the Company shall promptly refund such funds to
Parent.
(c) Section
2.2(a)(viii) is amended by deleting the words “the Secretary
of State of Delaware” and inserting in their stead the words
“said officer as being true, correct and complete copies
thereof”
(d) Section
2.2(b) is amended by (1) adding the following to clause (ii)
therein: “less the Deposit”, and (2) deleting clauses
(B) and (C) from clause (iii) therein.
(e) Section
3.1(u) of the Alliance Agreement is hereby deleted in its entirety
and replaced with the following text:
Listing and Maintenance
Requirements . The Company’s Common Stock is registered
pursuant to Section 12(b) or 12(g) of the Exchange Act, and the
Company has taken no action designed to, or which to its knowledge
is likely to have the effect of, terminating the registration of
such class of Common Stock under the Exchange Act nor has the
Company received any notification that the Commission is
contemplating terminating such registration.
(f) The
following Section 3.1(pp) is hereby added to the Alliance
Agreement:
(pp)
Additional Initial Closing Date Representations . As of the
Initial Closing Date, the Company makes the following
representations and warranties:
(1) Set
forth on Schedule 3.1(pp)(1) of the Company Disclosure Schedule is
a true, correct and complete list of the holders of Outstanding
Preferred Stock who have elected to convert all or a portion of
their shares to Common Stock in accordance with Section 2.9 hereof,
setting forth the name of each such holder, the number, class and
series of shares of Outstanding Preferred Stock so converted and
the number of shares of Common Stock into which such shares have
been converted (each such holder, a “Converting
Holder”). The Company has delivered to Parent true, correct
and complete copies of all Conversion Notices delivered by each
Converting Holder. Any and all representations, warranties and
other disclosure made or furnished by or on behalf of the Company
to the Converting Holders and to each nonconverting holder of
Outstanding Preferred Stock Purchaser regarding the Company, its
business and the transactions contemplated hereby, was, when made,
true and correct in all material respects and did not contain any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not
misleading.
(2) Set
forth on Schedule 3.1(pp)(2) of the Company Disclosure Schedule is
a true, correct and complete list of the holders of Outstanding
Preferred Stock who have consented to the transactions contemplated
by this Agreement, including the issuance of the Series E Preferred
Stock hereunder, setting forth the name of each such holder and the
number, class and series of shares of Outstanding Preferred Stock
held by such holder (each such holder, a “Consenting
Holder”). The
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Company has delivered to Parent true,
correct and complete copies of all consents delivered by each
Consenting Holder. Any and all representations, warranties and
other disclosure made or furnished by or on behalf of the Company
to the Consenting Holders and to each nonconsenting holder of
Outstanding Preferred Stock Purchaser regarding the Company, its
business and the transactions contemplated hereby, was, when made,
true and correct in all material respects and did not contain any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not
misleading.
(3) Any
and all actions and steps taken by the Company in connection with
the conversion of the shares of Outstanding Preferred Stock by the
Converting Holders and the granting of consent by the Consenting
Holders complied in all mat
