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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 (I.R.S. Employer Identification No.)
incorporation or organization)
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., 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
- -------------------------------------------------------------------------------------------------------
Proposed Maximum
Offering Proposed Maximum Amount of
Title of Securities Amount to be Price Aggregate Offering Registration
to be Registered Registered(1) Per Share(2) Price(2) Fee(1)(2)
- -------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value 1,420,000 $7.575 $10,756,500 $870
- -------------------------------------------------------------------------------------------------------
(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 5,150,000 to
6,570,000. 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 September 25, 2003.
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 1,420,000 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 5,150,000 shares to 6,570,000 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 July 15,
2003.
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 31, 2003, for the fiscal year ended December 31, 2002, as amended
on Form 10-K/A filed with the Commission on April 30, 2003, including any
documents or portions thereof incorporated by reference therein;
2. The Registrant's Quarterly Reports on Form 10-Q filed with the
Commission on: (i) May 15, 2003, for the quarterly period ending March 31,
2003; and (ii) August 14, 2003, for the quarterly period ending June 30,
2003;
3. The Registrant's Definitive Proxy Statement dated May 30, 2003, for the
Annual Meeting of Shareholders held on July 15, 2003, 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 February 26, 2003, May 21, 2003, June 5, 2003, June 20, 2003, and
August 13, 2003; 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.
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. 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
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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.
23.3 Consent of Eisner LLP independent auditors.
24.1 Power of Attorney (included on signature pages hereto).
Item 9. Undertakings.
We, the undersigned Registrant hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to the Registrant Statement to:
(i) To Include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
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(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) that individually or in the aggregate
represent a fundamental change in the information set forth in the
Registration Statement; and
(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 (i) and (ii) do not apply if 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
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 26th
day of September, 2003.
DISCOVERY LABORATORIES, INC.
By: /s/ Robert J. Capetola, Ph.D.
--------------------------------
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 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. September 29, 2003
- ----------------------------- President, Chief Executive Officer and
Director (Principal Executive Officer)
/s/ John G. Cooper John G. Cooper September 29, 2003
- ----------------------------- Senior Vice President and Chief Financial
Officer(Principal Financial and Accounting
Officer)
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/s/ Herbert McDade Herbert McDade, Jr. September 29, 2003
- ----------------------------- Chairman of the Board of Directors
/s/ Max Link Max Link, Ph.D. September 29, 2003
- ----------------------------- Director
/s/ Antonio Esteve Antonio Esteve, Ph.D. September 29, 2003
- ----------------------------- Director
/s/ Marvin E. Rosenthale Marvin E. Rosenthale, Ph.D. September 29, 2003
- ----------------------------- Director
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Discovery Laboratories, Inc.
Form S-8
Index to Exhibits
Exhibit No. 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, 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.
23.3 Consent of Eisner LLP independent auditors.
24.1 Powers of Attorney (included in Signature Pages to this
Registration Statement on Form S-3).
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