As filed with the Securities and Exchange Commission on June 7, 2004
Registration No. 333-[_____]
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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DISCOVERY LABORATORIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-3171943
(State or other jurisdiction of incorporation or (I.R.S. Employer
organization) Identification No.)
350 South Main Street, Suite 307, Doylestown, Pennsylvania 18901
(Address of Principal Executive Offices) (Zip Code)
Discovery Laboratories, Inc. Amended and Restated 1998 Stock Incentive Plan
(Full title of the plan)
Robert J. Capetola, Ph.D., President and Chief Executive Officer
Discovery Laboratories, Inc.
350 South Main Street, Suite 307
Doylestown, Pennsylvania 18901
(Name and address of agent for service)
(215) 340-4699
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Ira L. Kotel, Esq.
Dickstein Shapiro Morin & Oshinsky LLP
1177 Avenue of the Americas, 41st Floor
New York, New York 10036
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered(1) Per Share(2) Price(2) Fee(1)(2)
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Common Stock, $.001 par value 3,000,000 $10.48 $31,425,000 $4,009.83
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(1) Represents additional shares of Common Stock issuable under the Discovery
Laboratories, Inc. Amended and Restated 1998 Stock Incentive Plan, as a result
of the amendment of such plan to increase the number of shares issuable under
such plan from 6,570,000 to 9,570,000. This Registration Statement shall also
cover any additional shares of Common Stock which become issuable under the
Amended and Restated 1998 Stock Incentive Plan by reason of any stock dividend,
stock split, recapitalization or other similar transaction effected without the
Registrant's receipt of consideration, which results in an increase in the
number of the outstanding shares of Registrant's Common Stock.
(2) Pursuant to paragraphs (c) and (h) of Rule 457 of the Securities Act of
1933, as amended (the "Securities Act"), the proposed maximum offering price per
share of such shares of beneficial interest is estimated solely for the purpose
of determining the registration fee and is based upon the average of the high
and low prices per share of the Registrant's shares of Common Stock reported on
the Nasdaq SmallCap Stock Market on June 4, 2004.
PROPOSED SALE TO TAKE PLACE AS SOON AFTER THE EFFECTIVE DATE OF THE REGISTRATION
STATEMENT AS OPTIONS GRANTED UNDER THE PLAN ARE EXERCISED.
EXPLANATORY NOTES
AS PERMITTED BY THE RULES OF THE SECURITIES AND EXCHANGE COMMISSION, THIS
REGISTRATION STATEMENT OMITS THE INFORMATION SPECIFIED IN PART I OF FORM S-8.
This registration statement is being filed to register 3,000,000 additional
shares of Common Stock issuable under the Amended and Restated 1998 Stock
Incentive Plan (the "Plan" attached hereto as Exhibit 4.1), as a result of an
amendment to the Plan increasing the number of shares of Common Stock available
for issuance thereunder from 6,570,000 shares to 9,570,000 shares (the "Plan
Amendment"). The Plan Amendment was approved by the requisite vote of
stockholders at the Company's Annual Meeting of Stockholders held on May 11,
2004.
The foregoing capitalized terms that are not otherwise defined herein shall have
the meanings ascribed to such terms in the Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed with the Commission by the Registrant,
are incorporated by reference in this Registration Statement:
1. The Registrant's Annual Report on Form 10-K filed with the Commission
on March 15, 2004, for the fiscal year ended December 31, 2003,
including any documents or portions thereof incorporated by reference
therein;
2. The Registrant's Quarterly Report on Form 10-Q filed with the
Commission on May 7, 2004, for the quarterly period ending March 31,
2004;
3. The Registrant's Definitive Proxy Statement dated March 22, 2004, for
the Annual Meeting of Shareholders held on May 11, 2004, including any
documents or portions thereof incorporated by reference therein;
4. The Registrant's Current Reports on Form 8-K filed with the
Commission on May 10, 2004, March 30, 2004, February 19, 2004, and
February 6, 2004; and
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5. The Registrant's description of its capital stock contained in its
Registration Statement on Form 8-A filed with the Commission on July 13,
1995, and its Registration Statement on Form 8-A filed with the
Commission on February 6, 2004.
All documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be part hereof from the date of filing
of such documents. Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The validity of the securities being registered hereunder is being passed upon
for the Registrant by Dickstein Shapiro Morin & Oshinsky LLP. Attorneys of
Dickstein Shapiro Morin & Oshinsky LLP beneficially own shares of the
Registrant's Common Stock and warrants exercisable for shares of common stock
with an aggregate value in excess of $50,000.
Item 6. Indemnification of Directors and Officers
Article Eighth of the Registrant's Restated Certificate of Incorporation limits
the liability of directors to the maximum extent permitted by Delaware law.
Delaware law provides that directors of a corporation will not be personally
liable for monetary damages for breach of their fiduciary duties as directors,
except for liability for (i) any breach of their duty of loyalty to the
corporation or its stockholders, (ii) acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, (iii)
unlawful payments of dividends or unlawful stock repurchases or redemptions as
provided in Section 174 of the Delaware General Corporation Law or (iv) any
transaction from which the director derives an improper personal benefit. The
Registrant's By-Laws provide that the Registrant shall indemnify its directors
and officers, the directors and officers of any subsidiary of the Registrant and
any other individuals acting as directors or officers of any other corporation
at the request of the Registrant, to the fullest extent permitted by law.
The Registrant has entered into indemnification agreements with certain of its
executive officers containing provisions that may require the Registrant, among
other things, to indemnify such officers against liabilities that may arise by
reason of their status or service as officers other than liabilities arising
from willful misconduct of a culpable nature and to advance certain expenses
incurred as a result of any proceeding against them as to which they could be
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indemnified. Registrant has obtained directors' and officers' liability
insurance. These provisions in the Restated Certificate of Incorporation and the
By-Laws do not eliminate the officers' and directors' fiduciary duty, and in
appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief will remain available under Delaware law. In addition,
each officer and director will continue to be subject to liability for breach of
the officer's or director's duty of loyalty to the Registrant for acts or
omissions not in good faith or involving intentional misconduct, for knowing
violations of law, for actions leading to improper personal benefit to the
officer or director and for payment of dividends or approval of stock
repurchases or redemptions that are unlawful under Delaware law. The provisions
also do not affect an officer's or director's responsibilities under any other
law, such as the federal securities laws or state or federal environmental laws.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits.
Number Description
4.1 Discovery Laboratories, Inc., Amended and Restated 1998 Stock
Incentive Plan
5.1 Opinion of Dickstein Shapiro Morin & Oshinsky LLP, regarding the
validity of the securities being registered.
23.1 Consent of Dickstein Shapiro Morin & Oshinsky LLP (included in
its opinion filed as Exhibit 5.1 hereto).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney (included on signature pages hereto).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to the Registrant Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which individually
or in the aggregate represent a fundamental change in the
information set forth in the Registration Statement; and
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(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Doylestown, Commonwealth of Pennsylvania on this 7th
day of June, 2004.
DISCOVERY LABORATORIES, INC.
(Registrant)
By: /s/ Robert J. Capetola
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Robert J. Capetola, Ph.D.
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
under the heading "Signature" constitutes and appoints Robert J. Capetola, Ph.D.
and David L. Lopez his true and lawful attorney-in-fact and agent with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities to sign any or all amendments to this
Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the United States Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, each
acting alone, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully for
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, each acting alone, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE NAME & TITLE DATE
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/s/ Robert J. Capetola Robert J. Capetola, Ph.D. June 7, 2004
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President, Chief Executive Officer and Director
(Principal Executive Officer)
/s/ John G. Cooper John G. Cooper June 7, 2004
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Executive Vice President and Chief Financial
Officer (Principal Financial and Accounting Officer)
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/s/ Herbert McDade Herbert McDade, Jr. June 7, 2004
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Chairman of the Board of Directors
/s/ Max Link Max Link, Ph.D. June 7, 2004
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Director
/s/ Antonio Esteve Antonio Esteve, Ph.D. June 7, 2004
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Director
/s/ Marvin E. Rosenthale Marvin E. Rosenthale, Ph.D. June 7, 2004
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Director
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Discovery Laboratories, Inc.
Form S-8
Index to Exhibits
Exhibit No. Description
4.1 Discovery Laboratories, Inc., Amended and Restated 1998 Stock
Incentive Plan.
5.1 Opinion of Dickstein Shapiro Morin & Oshinsky LLP, legal counsel.
23.1 Consent of Dickstein Shapiro Morin & Oshinsky LLP, legal counsel
(included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, independent auditors.
24.1 Power of Attorney (included in Signature Pages to this
Registration Statement on Form S-8).
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