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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 (I.R.S. Employer
of incorporation or 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 Capetola, Ph.D., 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 1,000,000 $2.05 $2,050,000 $188.60
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(1) Represents additional shares of Common Stock issuable under the 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 4,150,000 to
5,150,000. This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Discovery Laboratories, Inc.
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 beneficial interest
reported on the Nasdaq Small Cap Stock Market on October 28, 2002.
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 1,000,000
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 4,150,000 shares to 5,150,000 shares.
In addition, this registration statement reports the following amendments
to the Plan made pursuant to Article Five, Section IV, Subsection A of the Plan:
(a) Effective September 13, 2002, the exercise price per share of options
granted to Eligible Directors at any time thereafter under the Automatic Option
Grant Program shall be equal to 100% of the Fair Market Value per share of
Common Stock on the option grant date; rather than 60%, as previously provided
thereunder;
(b) Effective May 21, 2002, the Plan Administrator shall have the
discretion to:
(i) extend the period of time for which an option granted under the
Automatic Option Grant Program is to remain exercisable following
the date of cessation of an Optionee's Board Service from the
limited exercise period otherwise in effect for such option to such
greater time as the Plan Administrator may deem appropriate, but in
no event beyond the expiration of the option term; and/or
(ii) permit any options granted under the Automatic Option Grant Program
to be exercised, during the applicable post-Service exercise period,
not only with respect to the number of vested shares of Common Stock
for which such option is exercisable at the date of cessation of
Optionee's Board Service but also with respect to one or more
additional installments in which the Optionee would have vested had
the Optionee continued in Service.
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:
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1. The Registrant's Annual Report on Form 10-KSB filed with the
Commission on March 28, 2002, for the fiscal year ended December 31,
2001, 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: (i) May 15, 2002, for the quarterly period ending
March 31, 2002, and (ii) August 14, 2002, for the quarterly period
ending June 30, 2002;
3. The Registrant's Definitive Proxy Statement dated April 8, 2002, for
the Annual Meeting of Shareholders held on May 21, 2002, including
any documents or portions thereof incorporated by reference therein;
4. The Registrant's Form 8-K filed with the Commission on March 8, 2002
and Form 8-K/As filed with the Commission on January 14, 2002; and
5. The Registrant's Registration Statement on Form S-8, filed on August
13, 2001 (File No. 333-67422).
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 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.
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The Registrant's Bylaws 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
indemnified. Registrant has obtained directors' and officers' liability
insurance. These provisions in the 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
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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 Company hereby undertakes:
(1) To file, during any period in which the Company offers or sells
securities, a post-effective amendment to this Registration Statement to include
any material information with
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respect to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
(2) That for the purpose of determining liability under the Securities Act
of 1933, each such post-effective amendment to this Registration Statement and
each filing of our annual report, as a new registration statement of the
securities offered, and the offering of the securities at that time will be
deemed to be the initial bona fide offering thereof; and
(3) To file a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the Delaware General Corporation Law, the Company's
Certificate of Incorporation and its By-Laws, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission that
indemnification is against public policy as expressed in the Securities Act of
1933, and is, therefore, unenforceable. In the event that a claim for
indemnification against liabilities arising under the Securities Act of 1933
(other than the payment by us of expenses incurred or paid by a director,
officer, or controlling person of the Company in the successful defense of any
action, suit or proceeding) is asserted by that director, officer or controlling
person in connection with the securities that the Company is registering, the
Company 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 of whether the indemnification by the Company is against public policy
as expressed in the Securities Act of 1933 and will be governed by the final
adjudication of that 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 29th
day of October, 2002.
DISCOVERY LABORATORIES, INC.
By: /s/ Robert J. Capetola, Ph.D.
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Name: Robert J. Capetola, Ph.D.
Title: 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 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.
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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 Title Date
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/s/ Robert J. Capetola President & Chief Executive October 29, 2002
- ------------------------------------ Officer and Director
Robert J. Capetola, Ph.D. (Principal Executive Officer)
/s/ John G. Cooper Sr. Vice President, Chief October 29, 2002
- ------------------------------------ Financial Officer (Principal
John G. Cooper Financial and Accounting Officer)
/s/ Herbert McDade Chairman of the Board of Directors October 29, 2002
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Herbert McDade, Jr.
/s/ Max Link Director October 29, 2002
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Max Link, Ph.D.
/s/ Marvin Rosenthale Director October 29, 2002
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Marvin Rosenthale, Ph.D.
/s/ Antonio Esteve Director October 29, 2002
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Antonio Esteve, Ph.D.
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