SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
March 5, 1998
Date of Report (Date of earliest event reported)
DISCOVERY LABORATORIES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 000-26422 94-3171943
(State or other (Commission File Number) (IRS Employer
jurisdiction Identification Number)
of incorporation)
509 Madison Avenue, 14th Floor
New York, New York 10022
(Address of principal executive offices)
(212) 223-9504
(Registrant's telephone number, including area code)
Item 5. Other Events
Discovery Laboratories, Inc. (the "Registrant"), ATI Acquisition
Corp. ("Acquisition Corp.") and the Registrant's majority-owned subsidiary,
Acute Therapeutics, Inc. ("ATI"), have entered into an Agreement and Plan of
Merger (the "Merger Agreement") dated as of March 5, 1998. Pursuant to the
Merger Agreement, the Registrant will acquire all outstanding shares of the
common stock, par value $0.001 per share, of ATI ("ATI Common Stock") through a
merger of Acquisition Corp. into ATI (the "Merger"). The Registrant and ATI have
also entered into a Management Agreement dated as of March 5, 1998 (the
"Management Agreement") providing for the management of the Registrant by the
ATI management team pending completion of the Merger. Pursuant to the Management
Agreement, members of the ATI management team have been granted options to
purchase 126,500 shares of the Registrant's Common Stock, par value $0.001 per
share ("Registrant Common Stock"), subject to vesting.
The Merger Agreement provides that the stockholders of ATI will be
issued 3.91 shares of Registrant Common Stock in exchange for each share of ATI
Common Stock held by the stockholders of ATI prior to the Merger (the "Exchange
Ratio"). Certain outstanding ATI options for the purchase of ATI Common Stock
will be assumed by the Registrant and will become exercisable for Registrant
Common Stock on the basis of the Exchange Ratio. In addition, pursuant to
employment agreements to be entered into with the Registrant, the ATI management
team will be granted, in the aggregate, options to purchase (i) 338,500 shares
of Registrant Common Stock, subject to vesting, (ii) 175,000 shares of
Registrant Common Stock at such time as the market capitalization of the
Registrant exceeds $75 million and (iii) 160,000 shares of Registrant Common
Stock upon consummation of a corporate partnering deal having a total value of
at least $20 million. The Registrant Common Stock to be issued to ATI
stockholders and the ATI options to be assumed in the Merger, together with the
options to be issued to ATI management members pursuant to their employment
agreements with the Registrant and the options granted pursuant to the
Management Agreement, will represent approximately 24% of the Registrant Common
Stock on a fully-diluted basis.
The closing of the Merger, which is expected to occur as soon as
practicable after the Registrant's Annual Meeting of Stockholders, is subject to
customary closing conditions, including approval by the stockholders of the
Registrant and ATI. The Merger is further conditioned upon, among other things,
(i) the execution of employment agreements by Robert J. Capetola, Ph.D.,
currently Chief Executive Officer of ATI, and other key executives of ATI and
(ii) the election at the Annual Meeting of a Board of Directors of the
Registrant consisting of six of the Registrant's current directors (three of
whom are also directors of ATI) and four of ATI's current directors.
Item 7. Financial Statements, Pro Forma Financial Statements and Exhibits
(c) Exhibits:
2.1 Agreement and Plan of Merger among Discovery Laboratories, Inc., ATI
Acquisition Corp. and Acute Therapeutics, Inc. dated as of March 5,
1998.
2.2 Form of Registration Rights Agreement between Discovery
Laboratories, Inc., Johnson & Johnson Development Corporation and
The Scripps Research Institute.
2.3 Form of Lock-up Agreement.
10.1 Management Agreement between Discovery Laboratories, Inc. and Acute
Therapeutics, Inc. dated as of March 5, 1998.
99.1 Press Release dated March 10, 1998.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DISCOVERY LABORATORIES, INC.
Date: March 10, 1998
By: /s/ James S. Kuo
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Name: James S. Kuo, M.D.
Title: Chief Executive Officer
Exhibit Index
Exhibit Number Description
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2.1 Agreement and Plan of Merger
2.2 Form of Registration Rights Agreement
2.3 Form of Lock-up Agreement
10.1 Management Agreement
99.1 Press Release dated March 10, 1998