EXPLANATORY NOTE
The purpose of this Amendment No. 1 on Form 10-K/A (this
Amendment
) is to (a) include certain information regarding changes in internal
control over financial reporting under Item 9AT, and (b) provide certain additional information under Item 9B, which was not included in the original Form 10-K for the fiscal year ended March 31, 2008 filed by Elite Pharmaceuticals, Inc., a Delaware
corporation (the
Registrant
), with the United States Securities and Exchange Commission (the
SEC
) on June 27, 2008 (the "
Original Filing
").
In accordance with Rule 12b-15 under the Securities Exchange Act of 1934, as amended (the "
Exchange Act
"), this
Amendment amends and restates in its entirety Item 9AT and Item 9B of the Original Filing and contains new certifications pursuant to Section 302 and Section 906 of the Sarbanes-Oxley Act of 2002. This Amendment contains only the sections of and
exhibits to the Original Filing which are being amended and restated, and those unaffected parts or exhibits are not included herein. This Amendment continues to speak as of the date of the Original Filing and the Company has not updated the
disclosure contained herein to reflect events that have occurred since the date of the Original Filing. Accordingly, this Amendment should be read in conjunction with the Company's other filings, if any, made with the United States Securities and
Exchange Commission subsequent to the date of the Original Filing, including any amendments to those filings, if any.
ITEM 9AT. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
Our management, with the participation of our Chief Executive Officer and our Chief Financial Officer, has evaluated the effectiveness of our disclosure controls and procedures (as such term is
defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of the end of the period covered by this report. Based on that evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that, as of the end of such period,
our disclosure controls and procedures are effective to ensure that information required to be disclosed by us in the reports that we file or submit under the Exchange Act is (i) recorded, processed, summarized and reported, within the time periods
specified in the SEC's rules and forms; and (ii) accumulated and communicated to management, including our Chief Executive Officer and our Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.
Management's Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Our internal control over financial reporting has been designed to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles in the United States of America.
Our internal control over financial reporting includes policies and procedures that pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect transactions
and dispositions of our assets; provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with accounting principles generally accepted in the United States of America, that
receipts and expenditures are being made only in accordance with authorization of our management and directors; and provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets
that could have a material effect on our financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements or fraudulent actions. Therefore, even those systems determined to be
effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of
changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Our management assessed
the effectiveness of our internal control over financial reporting at March 31,
2008. In making this assessment, management used the criteria set forth by the
Committee of Sponsoring Organizations of the
1
Treadway Commission in Internal ControlIntegrated Framework. Based on that assessment under those criteria, management has determined that, at March 31, 2008, our internal control over financial reporting was
effective.
This annual report does not include an attestation report of our registered public accounting firm regarding internal control over financial reporting. Management's report was not subject to
attestation by our registered public accounting firm pursuant to temporary rules of the SEC that permit us to provide only management's report in this annual report.
Changes in Internal Control over Financial Reporting
There have been no changes in our internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during the fourth quarter of fiscal
year 2007 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
ITEM 9B.
OTHER INFORMATION.
Subsequent to the date of the Original Filing and as previously disclosed on the Forms 8-K filed by the Registrant with the SEC on October 21, 2008 and November 6, 2008, the Audit Committee of
the Registrants Board of Directors (the
Audit Committee
) became aware of certain reimbursements of expenses that were made by the Registrant to Bernard J.
Berk, the then-President, Chief Executive Officer and Chairman of the Registrants Board of Directors, without the prior receipt by the Registrant from Mr. Berk of adequate substantiation of such expenses. The Audit Committee took action to
investigate such reimbursement and review the Registrants internal controls to determine how such reimbursements occurred. On November 6, 2008, Mr. Berk resigned as the Registrants President and Chief Executive Officer and also
voluntarily resigned as the Chairman of the Board and as a member thereof, and the Registrant appointed Chris Dick as its Acting Chief Executive Officer and Jerry I. Treppel, a member of the Registrants Board of Directors, as the Chairman
thereof.
As a result of the matters involving Mr. Berk described above, the Registrant disclosed on the Form 10-Q for the quarterly period ending September 30, 2008 filed with the SEC on November 14,
2008 (the
Form 10-Q
), that its disclosure controls and procedures as of September 30, 2008 had deficiencies that caused the Registrants controls and
procedures to be ineffective, particularly with respect to its expense reimbursement procedures.
The Registrant has taken various remedial measures to correct deficiencies in its internal controls and prevent the Registrants reimbursement of unsubstantiated expenses in the future,
including the following:
-
The Audit Committee directed Mr. Berk to promptly deliver to the Registrant expense reports that substantiate the
basis for each expense that was reimbursed to Mr. Berk,
including the valid business purpose therefor. The Audit
Committee received expense reports for the reimbursed expenses and reviewed such reports to determine which of
the expenses
had a valid business purpose.
-
At the direction of the Audit Committee, the Registrants Chief Financial Officer implemented check writing
restrictions to the Registrants bank accounts that
require the signatures of each of the Registrants Acting Chief
Executive Officer and its Chief Financial Officer for all payments (including expense reimbursements) over
$5,000.
-
The Registrant commenced a review of its internal control and compliance policies and procedures, including (1)
reviewing, expanding, and formalizing its policies related to
all potential advances and/or extensions of credit to
employees, executive officers and directors, including, without limitation, with respect to the use of the
Registrants
credit cards, and advances of any other kind; and (2) enhancing its training of employees, executive
officers and directors regarding compliance with the letter and the spirit of the Registrants Code of
Ethics.
-
The Registrant has engaged Rosen Seymour Shapss Martin & Company, LLP (
RSSM
), the Registrants
registered public accounting firm, to evaluate the accounting procedures and related internal controls over expenditures.
2
The following disclosure would have
otherwise been made on Form 8-K under the heading Item 8.01 Other Events.
The Registrant has engaged the Registrants independent auditors to conduct a review of the Registrants internal control over financial reporting and anticipates completing its
review by January 23, 2009. To date, nothing has come to their attention to indicate that the control currently in place is not effective.
ITEM 15. EXHIBITS, FINANCIAL STATEMENTS AND SCHEDULES.
(a) The following documents are filed as part of this
Annual Report on Form 10-K/A:
Exhibit
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|
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No.
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Description
|
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31.1*
|
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Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of
2002*
|
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31.2*
|
|
Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of
2002*
|
|
32.1**
|
|
Certification of Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of
2002*
|
|
32.2**
|
|
Certification of Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of
2002*
|
________________________
* Filed herewith.
** As contemplated by SEC Release No. 33-8212, these exhibits are furnished with this Annual Report on Form 10-K/A and are not deemed filed with the Securities and Exchange Commission and are not incorporated by reference
in any filing of Elite Pharmaceuticals, Inc. under the Securities Act of 1933 or the Securities Exchange Act of 1934, whether made before or after the date hereof and irrespective of any general incorporation language in any such filings.
3
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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ELITE PHARMACEUTICALS,
INC.
|
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By:
|
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/s/ Chris Dick
|
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Chris Dick
|
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Chief Operating Officer
and Acting Chief Executive Officer
|
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Dated: January 16,
2009
|
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signature
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Title
|
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Date
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Chief Operating Officer,
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Acting Chief Executive Officer
|
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January 16, 2009
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Director
|
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/s/ Chris Dick
|
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(Principal Executive
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Officer)
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Chris Dick
|
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/s/ Mark Gittelman
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Chief Financial Officer
|
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January 16, 2009
|
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and Treasurer (Principal
|
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Mark I. Gittelman
|
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Financial and Accounting
|
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Officer)
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