SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
___________________________
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
October
26, 2005
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 jurisdiction
of
incorporation)
|
(Commission
File Number)
|
(IRS
Employer
Identification
Number)
|
2600
Kelly Road, Suite 100
Warrington,
Pennsylvania 18976
(Address
of principal executive offices)
(215)
488-9300
(Registrant's
telephone number, including area code)
(Former
name or former address, if changed since last report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
[
] Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[
] Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[
] Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
[
] Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01. Entry
into a Material Definitive Agreement.
Effective
October 26, 2005, Discovery Laboratories, Inc. (“Discovery”) entered into a
Common Stock Purchase Agreement (the “Agreement”) with Laboratorios Del Dr.
Esteve, S.A. (“Esteve”) whereby Discovery will issue to Esteve 650,000 shares
(the “Shares”) of its common stock, par value $0.001 per share (the “Common
Stock”), at a price per share of $6.88, for an aggregate purchase price of
$4,472,000 (the “Transaction”). The Shares are expected to be delivered to the
purchaser at the closing on or about October 31, 2005. The closing is subject
to
customary closing conditions.
The
offer
and sale of the Shares is being made under the registration statement on
Form
S-3 MEF (File No. 333-122887) (the “Additional Registration Statement”) filed
with the Securities and Exchange Commission (the “SEC”) on February 17, 2005
pursuant to Rule 462(b) and General Instruction IV to Form S-3, both as
promulgated under the Securities Act of 1933, as amended (the “Securities Act”),
whereby Discovery registered an additional 1,468,592 shares of Common Stock
in
connection with Discovery’s shelf registration statement on Form S-3 (File No.
333-111360) (the “Shelf Registration Statement”) filed with the SEC on December
19, 2003, relating to the possible sale from time to time of up to 6,500,000
shares of Common Stock. The Shelf Registration Statement was declared effective
by the SEC on January 7, 2004 and the Additional Registration Statement became
effective upon filing with the SEC on February 17, 2005. In April 2004, the
Company completed an underwritten public offering of 2,200,000 shares of
Common
Stock, which shares had been registered under the Shelf Registration Statement.
In February 2005, the Company completed two registered direct offerings of
an
aggregate of 5,060,000 shares of Common Stock, which shares had been registered
under both the Shelf Registration Statement and the Additional Registration
Statement. In the Transaction, the Shares will be issued to Esteve from the
708,592 shares of Common Stock remaining available for offer and sale under
the
Additional Registration Statement.
Discovery
has not incurred any brokerage or finders’ fees or agents’ commissions or any
similar charges in connection with the Transaction. Esteve is the beneficial
owner of a significant amount of shares of Common Stock. Antonio Esteve,
Ph.D.,
President of Esteve, serves as a member of Discovery’s Board of Directors.
Accordingly, Esteve may be deemed to be an “affiliate” of the Company, as
defined in the Securities Act.
Discovery
intends to use the proceeds from the Transaction for working capital and
general
corporate purposes, including supporting the continued development of
fully-integrated biotechnology business capabilities and the further development
of its Surfactant Replacement Therapy pipeline.
The
description of the terms and conditions of the Agreement and the rights and
obligations of the Company and Esteve in connection therewith are qualified
by
reference in their entirety to the definitive terms and conditions of the
Agreement, a form of which is attached hereto as Exhibit 10.1.
Cautionary
Note Regarding Forward-looking Statements:
To
the
extent that statements in this Current Report on Form 8-K are not strictly
historical, including statements as to business strategy, outlook, objectives,
future milestones, plans, intentions, goals, future financial conditions,
future
collaboration agreements, the success of the Company’s product development or
otherwise as to future events, such statements are forward-looking, and are
made
pursuant to the safe harbor provisions of the Private Securities Litigation
Reform Act of 1995. The forward-looking statements contained in this Current
Report are subject to certain risks and uncertainties that could cause actual
results to differ materially from the statements made. Such risks and others
are
further described in the Company's filings with the Securities and Exchange
Commission including the most recent reports on Forms 10-K, 10-Q and 8-K,
and
any amendments thereto.
Item
9.01. Financial
Statements and Exhibits.
(c)
Exhibits:
|
10.1
|
Common
Stock Purchase Agreement, dated October 26, 2005, between Discovery
Laboratories, Inc. and Laboratorios Del Dr. Esteve,
S.A.
|
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.
By:
/s/
Robert J. Capetola
Name:
Robert J. Capetola, Ph.D.
Title:
President and Chief Executive Officer
Date:
October 27, 2005
Exhibit
10.1
COMMON
STOCK PURCHASE AGREEMENT
COMMON
STOCK PURCHASE AGREEMENT (this “Agreement”),
dated
as of October 26, 2005, by and between DISCOVERY LABORATORIES, INC., a Delaware
corporation (the “Seller”),
and
LABORATORIOS DEL DR. ESTEVE, S.A., a corporation organized under the laws
of
Spain (the “Purchaser”).
RECITALS
(a)
The
Seller wishes to sell to the Purchaser and the Purchaser wishes to purchase
from
the Seller 650,000 shares (the “Shares”)
of the
common stock, par value $0.001 per share, of the Seller (“Common
Stock”),
upon
the terms and subject to the conditions set forth in this Agreement (the
“Share
Purchase”).
(b)
On
February 17, 2005, the Seller filed a shelf registration statement on Form
S-3
MEF (File No. 333-122887) (the “462(b)
Registration Statement”)
with
the Securities and Exchange Commission (“SEC”)
pursuant to Rule 462(b) and General Instruction IV to Form S-3, both as
promulgated under the Securities Act of 1933, as amended (the “Securities
Act”),
for
the purpose of registering an additional 1,468,592 shares of Common Stock
in
connection with the Seller’s shelf registration statement on Form S-3 (File No.
333-111360) filed with the SEC on December 19, 2003 (the “Original
Registration Statement”).
(c)
The
Seller wishes to offer and sell the Shares to the Purchaser from the 708,592
shares of Common Stock remaining available as of the date hereof for offer
and
sale under the 462(b) Registration Statement.
(d)
The
Seller will sell the Shares to the Purchaser pursuant to the base prospectus
(the “Prospectus”)
contained in the Original Registration Statement and a prospectus supplement
filed with the SEC in compliance with Rule 424(b) under the Securities Act
(the
“Prospectus
Supplement”).
(e)
The
parties to this Agreement desire to make certain representations, warranties,
covenants and agreements in connection with the Share Purchase and also to
prescribe certain conditions to the Share Purchase.
Accordingly,
in consideration of the mutual representations, warranties, covenants and
agreements contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties to this Agreement agree as follows:
1
ARTICLE
I
DEFINITIONS
Section
1.1 Defined
Terms.
(a) For
all
purposes of this Agreement, the terms set forth below shall have the respective
meanings set forth in this Section 1.1 (such definitions to be equally
applicable to both the singular and plural forms of the terms herein defined).
“Business
Day”
means
any day other than a Saturday, Sunday or U.S. federal holiday, and shall
consist
of the time period from 12:01 a.m. through 12:00 midnight Eastern time.
“Contract”
means
any contract, agreement, lease, binding understanding, indenture, note, option,
license or legally binding commitment or undertaking.
“Governmental
Entity”
means
any international, national, federal, state, provincial, municipal or local
governmental, regulatory or administrative authority, agency, commission,
court,
tribunal, arbitral body or self-regulatory entity, whether domestic or foreign.
“Laws”
means
any law, statute, rule, regulation or code issued, enacted, promulgated or
implemented by any Governmental Entity.
“Legal
Requirements”
means
any national, federal, state, provincial, local, foreign or other law, statute,
constitution, principle of common law, ordinance, code, order, edict, decree,
rule, regulation, ruling, judgment or requirement issued, enacted, adopted,
promulgated, implemented or otherwise put into effect by or under the authority
of any Governmental Entity.
“Liens”
means
any liens, pledges, claims, charges, preemptive rights, mortgages, options,
security interests or encumbrances of any kind.
“Orders”
means
any orders, judgments, injunctions, awards, decrees or writs handed down,
adopted or imposed by any Governmental Entity.
“Person”
means
any individual, corporation (including any non-profit corporation), general
partnership, limited partnership, limited liability partnership, joint venture,
estate, trust, company (including any limited liability company or joint
stock
company), firm or other enterprise, association, organization, entity or
Governmental Entity.
“Representatives”
means,
when used with respect to the Purchaser or the Seller, the directors, officers,
employees, consultants, accountants, legal counsel, investment bankers, agents,
financing sources and representatives of financing sources and other
representatives of the Purchaser or the Seller, as applicable.
2
(b)
The following additional capitalized terms are defined in the following
Sections
of this Agreement:
|
Term
|
Section
|
|
|
|
|
|
|
462(b)
Registration Statement
|
Recitals
|
|
|
Agreement
|
Preamble
|
|
|
Closing
Date
|
Section
2.2
|
|
|
Closing
|
Section
2.2
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|
|
Common
Stock
|
Recitals
|
|
|
Company
|
Recitals
|
|
|
Exchange
Act
|
Section
3.3
|
|
|
Nasdaq
|
Section
3.3
|
|
|
Original
Registration Statement
|
Recitals
|
|
|
Prospectus
|
Recitals
|
|
|
Prospectus
Supplement
|
Recitals
|
|
|
Purchase
Price
|
Section
2.1
|
|
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Purchaser
|
Preamble
|
|
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SEC
|
Recitals
|
|
|
Securities
Act
|
Recitals
|
|
|
Seller
|
Preamble
|
|
|
Share
Purchase
|
Recitals
|
|
|
Shares
|
Recitals
|
|
ARTICLE
II
PURCHASE
AND SALE OF SHARES; PURCHASE PRICE
Section
2.1 Sale
and Purchase of Shares.
At the
Closing provided for in Section 2.2, and upon the terms and subject to the
conditions set forth in this Agreement, the Seller shall sell to the Purchaser,
and the Purchaser shall purchase from the Seller, all of the Shares for an
aggregate purchase price of $ 4,472,000.00 (the “Purchase
Price”),
based
on a price of $6.88 per share, to be paid in accordance with Section 2.2.
Section
2.2 Closing;
Closing Date.
Subject
to the satisfaction or waiver of all of the conditions to closing contained
in
Article VI, the closing of the Share Purchase (the “Closing”)
shall
take place (a) within three (3) business days of the date of execution of
this
Agreement at the offices of Dickstein Shapiro Morin & Oshinsky LLP, 1177
Avenue of the Americas, 47th Floor, New York, New York, 10036-2714 at 10:00
a.m.
or (b) at such other place and time or on such other date as the Purchaser
and
the Seller may agree in writing. The date on which the Closing occurs is
referred to as the “Closing
Date.”
Section
2.3 Deliveries
At Closing.
At the
Closing, the Purchaser shall deliver the Purchase Price to the Seller in
cash by
wire transfer of immediately available funds in U.S. dollars to the account
designated in Exhibit
A
to this
Agreement. Upon the Seller’s receipt of the Purchase Price, the Seller shall
release to the Purchaser a certificate representing the Shares, duly endorsed
in
proper form for transfer.
3
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
OF
THE SELLER
The
Seller represents and warrants to the Purchaser as follows:
Section
3.1 Organization;
Good Standing.
The
Seller is a corporation organized under the laws of the State of Delaware.
The
Seller is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its organization.
Section
3.2 Authority;
Non-Contravention.
(a) Authority.
The
Seller has all requisite power and authority to enter into this Agreement
and to
consummate the transactions contemplated hereby. The execution, delivery
and
performance of this Agreement by the Seller and the consummation by the Seller
of the transactions contemplated hereby have been duly and validly authorized
by
all necessary action on the part of the Seller. No other proceedings on the
part
of the Seller are necessary to authorize the execution, delivery or performance
of this Agreement by the Seller, or to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Seller
and,
assuming due execution and delivery by the Purchaser, constitutes the valid
and
binding obligation of the Seller, enforceable against the Seller in accordance
with its terms, subject to (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws, (ii) laws of general applicability
relating to or affecting creditors’ rights and (iii) general equity principles.
(b) Non-Contravention.
Neither
the execution and delivery of this Agreement by the Seller nor the consummation
of the transactions contemplated hereby will (i) conflict with or result
in any
breach of any provision of the organizational documents of the Seller, (ii)
require any consent, approval or notice under, or conflict with or result
in a
violation or breach of, or constitute (with or without notice or lapse of
time
or both) a default under, or give rise to any right of termination,
cancellation, suspension, revocation, amendment or acceleration under any
Contract to which the Seller or the Company is a party or by which any of
them
or the material assets of the Seller or the Company are bound or (iii) violate
any material Legal Requirements applicable to the Seller or by which any
of the
material assets of the Seller are bound, or (iv) cause the creation or
imposition of any Liens on any material asset of the Company.
(c) Necessary
Consents and Filings.
No
consent, approval or authorization of, or registration, declaration or filing
with, or notice to, any Governmental Entity is required to be obtained or
made
by the Seller in connection with the execution, performance and delivery
of this
Agreement or the consummation of the transactions contemplated hereby, except
for (i) the filing with the SEC of a Current Report on Form 8-K within four
(4)
Business Days after the entry into this Agreement, (ii) the filing with Nasdaq
of a Notification Form: Listing of Additional Shares, (iii) the filing of
the
Prospectus Supplement with the SEC, and (iv) compliance with applicable blue
sky
laws.
4
Section
3.3 Registration;
Listing Status.
The
Seller’s Common Stock is registered pursuant to Section 12(g) of the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”).
The
Seller filed the Original Registration Statement with the SEC on December
19,
2003, and the SEC declared it effective as of January 7, 2004. The Seller
filed
the 462(b) Registration Statement with the SEC on February 17, 2005, and
it
became effective immediately upon filing in accordance with Rule 462(b) under
the Securities Act. Pursuant to the 462(b) Registration Statement, the Shares
are registered for offer and sale on a delayed or continuous basis pursuant
to
Rule 415 under the Securities Act. The Seller’s Common Stock is duly listed,
admitted and authorized for trading on the Nasdaq National Market (“Nasdaq”)
under
the ticker symbol “DSCO”. Following delivery to Nasdaq of notice that the Shares
are being issued and the issuance of the Shares pursuant to this Agreement,
the
Shares will be duly listed, admitted and authorized for trading on Nasdaq.
The
Seller has taken no action designed to terminate, or likely to have the effect
of terminating the registration of the Common Stock under the Exchange Act
or
delisting or suspending from trading the Common Stock from Nasdaq, nor has
the
Seller received any information from the SEC or the National Association
of
Securities Dealers, Inc. suggesting that it is contemplating terminating
or
suspending such registration or listing.
Section
3.4 Issuance
of the Shares. The
Shares to be issued and sold by the Seller hereunder have been duly and validly
authorized and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued, fully paid and non-assessable and
not
subject to any preemptive rights.
Section
3.5 Brokers’
and Finders’ Fees.
The
Seller has not incurred any liability for brokerage or finders’ fees or agents’
commissions or any similar charges in connection with this Agreement.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
OF
THE PURCHASER
The
Purchaser represents and warrants to the Seller as follows:
Section
4.1 Organization;
Good Standing.
The
Purchaser is a corporation organized under the laws of Spain. The Purchaser
is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization.
Section
4.2 Authority;
Non-Contravention; Necessary Consents and Filings.
(a) Authority.
The
Purchaser has all requisite power and authority to enter into this Agreement
and
to consummate the transactions contemplated hereby. The execution, delivery
and
performance of this Agreement by the Purchaser and the consummation by the
Purchaser of the transactions contemplated hereby have been duly and validly
authorized by all necessary action on the part of the Purchaser. No other
proceedings on the part of the Purchaser are necessary to authorize the
execution, delivery or performance of this Agreement by the Purchaser, or
to
consummate the transactions contemplated hereby. This Agreement has been
duly
executed and delivered by the Purchaser and, assuming due execution and delivery
by the Seller, constitutes the valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, subject to
(i)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
similar laws, (ii) laws of general applicability relating to or affecting
creditors’ rights and (iii) general equity principles.
5
(b) Non-Contravention.
Neither
the execution and delivery of this Agreement by the Purchaser nor the
consummation of the transactions contemplated hereby will (i) conflict with
or
result in any breach of any provision of the organizational documents of
the
Purchaser, (ii) require any consent, approval or notice under, or conflict
with
or result in a violation or breach of, or constitute (with or without notice
or
lapse of time or both) a default under, or give rise to any right of
termination, cancellation, suspension, revocation, amendment or acceleration
under any Contract to which the Purchaser is a party or by which the Purchaser
or its assets are bound or (iii) violate any Legal Requirements applicable
to
the Purchaser.
(c) Necessary
Consents and Filings.
No
consent, approval or authorization of, or registration, declaration or filing
with, or notice to, any Governmental Entity which is required to be obtained
or
made by the Purchaser in connection with the execution, performance and delivery
of this Agreement or the consummation of the transactions contemplated hereby.
Section
4.3 No
Reliance.
The
Purchaser (a) is a sophisticated buyer with respect to the purchase of the
Shares, (b) has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of purchasing the Shares
in
accordance with this Agreement, (c) understands and is able to bear the economic
risks of investment in the Shares, (d) has adequate information concerning
the
business and financial condition of the Seller, the markets within which
the
Seller operates, and the Seller’s prospects in those markets, and has had such
access to such financial and other information and been afforded the opportunity
to ask such questions of representatives of the Seller and receive answers
thereto as the Purchaser deems necessary to make an informed decision regarding
the Share Purchase and (e) has independently and without reliance upon the
Seller, and based on such information as the Purchaser has deemed appropriate,
made its own analysis and decision to enter into this Agreement. The Purchaser
acknowledges receiving and reviewing the Registration Statement, including
the
Prospectus and the Prospectus Supplement at or a reasonable time prior to
the
Closing, including the documents incorporated by reference therein as well
as
the all exhibits thereto. The Purchaser has, in connection with its decision
to
purchase the Shares, relied solely upon the SEC Reports and the limited
representations and warranties of the Company contained herein. The Purchaser
is
not itself a “broker” or a “dealer” as defined in the Exchange Act. The
Purchaser is acquiring the Shares for its own account for investment purposes
only and not with a view to any public distribution thereof.
Section
4.4 Limitations
on Resale.
The
Purchaser will not, directly or indirectly, offer, sell, pledge, transfer
or
otherwise dispose of (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of) any of the Shares, except in compliance with
the
Securities Act and the rules and regulations promulgated thereunder and in
accordance with the terms and conditions of this Agreement. The Purchaser
acknowledges that it is an “affiliate” of the Seller (as defined in Rule 144
under the Securities Act) and that Rule 144 under the Securities Act sets
out
certain limitations on the timing, manner and amount of securities that may
be
resold by an affiliate within any period of three months. The Purchaser
acknowledges that its President, Antonio Esteve, is a member of the Board
of
Directors of the Seller and, as a result of such position, is a person subject
to the reporting obligations and short-swing profits disgorgement provisions
of
Section 16 of the Exchange Act.
6
Section
4.5 Compliance
with Insider Trading Rules.
The
Purchaser acknowledges and agrees that it is aware, and that it will advise
each
of its affiliates and representatives that is provided any confidential
information of the Seller that the securities laws of the United States provide
that any person who has received directly or indirectly from an issuer such
as
the Seller material, non-public information is prohibited from purchasing
or
selling securities of such issuer or from communicating such information
to any
other person under circumstances in which it is reasonably foreseeable that
such
person is likely to purchase or sell such securities, and that violation
of such
prohibition may involve severe civil and criminal penalties. Accordingly,
the
Purchaser will not directly or indirectly, through related parties or otherwise,
purchase, trade, offer, pledge, sell, contract to sell or to purchase or
sell or
“short” or “short against the box” (as those terms are generally understood in
the securities markets), or otherwise dispose of or acquire, any securities
of
the Seller or options in respect of such securities. The Purchaser further
agrees not to provide any person with material, nonpublic information, received
from the Seller or its representatives, including any relative, associate,
or
other individual who intends to, or may, (a) trade securities with respect
to
the Seller which is the subject of such information or (b) otherwise directly
or
indirectly benefit from such information.
Section
4.6 Brokers’
and Finders’ Fees.
The
Purchaser has not incurred any liability for brokerage or finders’ fees or
agents’ commissions or any similar charges in connection with this Agreement.
Section
4.7 No
Legal, Tax or Investment Advice.
The
Purchaser understands that nothing in this Agreement or any other materials
presented to the Purchaser in connection with the purchase and sale of the
Shares constitutes legal, tax or investment advice. The Purchaser has consulted,
at its own risk and expense, such legal, tax and investment advisors as it,
in
its sole discretion, has deemed necessary or appropriate in connection with
its
purchase of the Shares.
7
ARTICLE
V
COVENANTS
AND AGREEMENTS
Section
5.1 Reasonable
Efforts; Additional Actions; Cooperation.
Upon
the terms and subject to the conditions of this Agreement, each of the parties
hereto shall use all commercially reasonable efforts to take, or cause to
be
taken, all action, and to do or cause to be done, and to assist and cooperate
with the other parties in doing, all things necessary, proper or advisable
to
consummate and make effective as promptly as practicable the transactions
contemplated by this Agreement, including using all commercially reasonable
efforts to:
(a) obtain
all consents, amendments or waivers under the terms of any contractual
arrangements required by the transactions contemplated by this Agreement;
(b) obtain
or
make all necessary consents and filings;
(c) defend
any lawsuits or other legal proceedings, whether judicial or administrative,
challenging this Agreement or the consummation of the transactions contemplated
hereby; and
(d) fulfill
or cause the fulfillment of the conditions to Closing set forth in Article
VI.
Section
5.2 Notification
of Certain Matters.
The
Seller shall provide written notice to the Purchaser, and the Purchaser shall
provide written notice to the Seller, promptly upon becoming aware of (a)
any
occurrence, or failure to occur, of any event that could, either individually
or
in the aggregate, reasonably be expected to cause any representation or warranty
in this Agreement to be untrue or inaccurate in any material respect at any
time
after the date hereof and prior to the Closing Date, (b) any material failure
on
its part to comply with or satisfy any covenant, condition or agreement to
be
complied with or satisfied by it hereunder, (c) any notice or other
communication from any Person alleging that the consent of such Person (or
another Person) is or may be required in connection with the transactions
contemplated by this Agreement, or (d) any notice or other communication
from
any Governmental Entity in connection with the transactions contemplated
by this
Agreement; provided that the delivery of any notice pursuant to this Section
5.2
shall not be deemed to limit or otherwise affect the remedies available
hereunder to the party receiving such notice.
Section
5.3 Public
Announcements.
Prior
to the consummation of the Closing, each of the Purchaser and the Seller
shall
not issue or cause to be issued any press release or otherwise make any public
announcement with respect to this Agreement, the Share Purchase or the other
transactions contemplated hereby without the consent of the other parties
hereto, except where such release or announcement is required under applicable
Legal Requirements, in which case the issuing party shall use its commercially
reasonable efforts to consult with the other party before issuing any such
release or making any such public statement.
Section
5.4 Transfer
Taxes.
The
Purchaser and the Seller shall each be responsible for all transfer and similar
taxes assessed or payable in connection with the transfer
of
the Shares pursuant to this Agreement in their
respective jurisdictions; provided that this Section 5.4 shall not apply
to (i)
taxes which are net income, capital, net worth, franchise, or similar conduct
of
business taxes which are imposed on either party by any national, provincial,
state or local taxing authority; (ii) taxes imposed as a direct and primary
result of any party’s gross negligence or willful misconduct; and (iii) taxes
imposed as a result of either party’s failure to file any applicable tax report
or return in a timely or proper manner.
8
ARTICLE
VI
CONDITIONS
PRECEDENT TO THE OBLIGATIONS
OF THE PARTIES TO CLOSE
OF THE PARTIES TO CLOSE
Section
6.1 Condition
Precedent to the Obligations of the Parties to Close.
The
respective obligations of each party to this Agreement to consummate the
Share
Purchase shall be subject to the satisfaction or waiver on or prior to the
Closing Date of the condition that no Governmental Entity of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered
any
Legal Requirement or Order (whether temporary, preliminary or permanent)
which
(i) is in effect and (ii) has the effect of making the Share Purchase illegal
or
otherwise restraining, enjoining or prohibiting consummation of the Share
Purchase.
Section
6.2 Additional
Conditions Precedent to the Obligations of the Purchaser
to Close.
The
obligation of the Purchaser to consummate the Share Purchase shall be subject
to
the satisfaction on or prior to the Closing Date of each of the following
conditions, any of which may be waived (to the extent legally permitted),
in
writing, exclusively by the Purchaser:
(a) Representations
and Warranties.
The
representations and warranties of the Seller contained in this Agreement
shall
be true and correct in all material respects as of the date of this Agreement
and as of the Closing Date.
(b) Covenants
and Agreements.
The
Seller shall have performed or complied in all material respects with the
covenants and agreements required by this Agreement to be performed or complied
with by it on or prior to the Closing Date.
Section
6.3 Additional
Conditions Precedent to the Obligations of the Seller to Close.
The
obligation of the Seller to consummate the Share Purchase shall be subject
to
the satisfaction on or prior to the Closing Date of each of the following
conditions, any of which may be waived (to the extent legally permitted),
in
writing, exclusively by the Seller:
(a) Representations
and Warranties.
The
representations and warranties of the Purchaser contained in this Agreement
shall be true and correct in all material respects as of the date of this
Agreement and as of the Closing Date.
(b) Covenants
and Agreements.
The
Purchaser shall have performed or complied in all material respects with
the
covenants and agreements required by this Agreement to be performed or complied
with by the Purchaser on or prior to the Closing Date.
9
Section
6.4 Frustration
of Closing Condition.
None of
the parties to this Agreement may rely on the failure of any condition set
forth
in this Article VI to be satisfied if such failure was caused by such party’s
failure to use reasonable efforts to consummate the Share Purchase.
ARTICLE
VII
TERMINATION
OF AGREEMENT
Section
7.1 Termination.
This
Agreement may be terminated at any time prior to the Closing Date (a) by
the
mutual written consent of the Purchaser and the Seller or (b) by the Purchaser
or the Seller if a court of competent jurisdiction or other Governmental
Entity
shall have issued an Order or Legal Requirement or taken any other action
restraining, enjoining or otherwise prohibiting the Share Purchase and such
Order, Legal Requirement or other action shall have become final and
nonappealable.
Section
7.2 Notice
of Termination; Effect of Termination.
Any
termination of this Agreement under Section 7.1 will be effective immediately
upon the delivery of a valid written notice of the terminating party to the
other parties hereto. In the event of the termination of this Agreement under
Section 7.1, this Agreement shall be void and of no further force or effect,
with no liability on the part of any party hereto, except that (a) this Section
7.2 and Article VIII shall survive the termination of this Agreement and
(b)
nothing in this Agreement shall relieve any party from liability for any
willful
breach of this Agreement or willful failure to perform its obligations under
this Agreement.
ARTICLE
VIII
MISCELLANEOUS
Section
8.1 Survival
of Representations and Warranties.
The
representations and warranties of the Purchaser and the Seller set forth
in this
Agreement shall survive the Closing and remain in full force and effect for
a
period of one year.
Section
8.2 Fees
and Expenses.
All
fees and expenses incurred by either the Seller or the Purchaser in connection
with this Agreement and the transactions contemplated hereby shall be paid
by
the Purchaser, whether or not the Share Purchase is consummated.
Section
8.3 Amendment.
This
Agreement may not be amended except by execution of an instrument in writing
signed on behalf of the Purchaser and the Seller.
Section
8.4 Extension;
Waiver.
At any
time prior to the Closing Date and subject to applicable laws, any party
hereto,
by action taken or authorized by its board of directors, may: (a) extend
the
time for the performance of any of the obligations or other acts of the other
parties hereto; (b) waive any inaccuracies in the representations and warranties
made to such party in this Agreement or in any document delivered pursuant
hereto; and (c) waive compliance with any of the agreements or conditions
for
the benefit of such party contained in this Agreement. Any agreement on the
part
of a party hereto to any such extension or waiver shall be valid only if
set
forth in an instrument in writing signed on behalf of such party. Delay in
exercising any right under this Agreement shall not constitute a waiver of
such
right.
10
Section
8.5 Notices.
All
notices and other communications under this Agreement shall be in writing
and
shall be deemed duly given (i) on the date of delivery if delivered personally,
(ii) on the date of confirmation of receipt (or, the first Business Day
following such receipt if the date is not a Business Day) of transmission
by
facsimile or (iii) on the date of confirmation of receipt (or, the first
Business Day following such receipt if the date is not a Business Day) if
delivered by a nationally- or internationally-recognized courier service.
All
notices or other communications hereunder shall be delivered as set forth
below,
or pursuant to such other instructions as may be designated in writing by
the
party to receive such notice:
| (a) |
if
to the Seller, to:
|
|
Discovery
Laboratories, Inc.
|
|
2600
Kelly Road Warrington, Pennsylvania 18976 Attention: David L. Lopez,
C.P.A., Esq.
|
|
Fax:
(215) 488-9301
|
|
with
a copy to:
|
|
Dickstein
Shapiro Morin & Oshinsky LLP
|
|
1177
Avenue of the Americas, 47th Floor New York, New York 10036-2714
Attention: Ira L. Kotel, Esq.
|
|
Fax:
(212) 997-9880
|
| (b) |
if
to the Purchaser, to:
|
| Laboratorios del Dr. Esteve, S.A. Av. Mare de Deu de Montserrat, 221 08041 Barcelona (Spain) |
| Attention: José M. Rafols Ferrer, Financial Director Fax: 34-93-347.53.13 |
Section
8.6 Interpretation.
When a
reference is made in this Agreement to Exhibits, such reference shall be
to an
Exhibit to this Agreement unless otherwise indicated. When a reference is
made
in this Agreement to Articles or Sections, such reference shall be to an
Article
or Section of this Agreement unless otherwise indicated. For purposes of
this
Agreement,
the words “include,”“includes” and “including” shall be deemed in each case to
be followed by the words “without limitation.” The table of contents and
headings contained in this Agreement are for reference purposes only and
shall
not affect in any way the meaning or interpretation of this Agreement. Any
statute, regulation, or other law defined or referred to herein (or in any
agreement or instrument that is referred to herein) means such statute,
regulation or other law as, from time to time, may be amended, modified or
supplemented, including (in the case of statutes) by succession of comparable
successor statutes. References to a Person also refer to its predecessors
and
permitted successors and assigns.
11
Section
8.7 Entire
Agreement; Third-Party Beneficiaries.
This
Agreement and the documents and instruments and other agreements among the
parties hereto as contemplated by or referred to herein (a) constitute the
entire agreement among the parties with respect to the subject matter hereof
and
supersede all prior agreements and understandings, both written and oral,
among
the parties with respect to the subject matter hereof and (b) are not intended
to confer upon any other Person any rights or remedies hereunder.
Section
8.8 Severability.
In the
event that any provision of this Agreement or the application thereof becomes
or
is declared by a court of competent jurisdiction to be void or unenforceable,
the remainder of this Agreement will continue in full force and effect and
the
application of such provision to other Persons or circumstances will be
interpreted so as reasonably to effect the intent of the parties to this
Agreement. The parties hereto further agree to replace any such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the greatest extent possible, the economic, business
and
other purposes of such void or unenforceable provision.
Section
8.9 Other
Remedies; Specific Performance.
(a) Other
Remedies.
Except
as otherwise provided in this Agreement, any and all remedies herein expressly
conferred upon a party will be deemed cumulative with, and not exclusive
of, any
other remedy conferred hereby, or by law or equity upon such party, and the
exercise by a party of any one remedy will not preclude the exercise of any
other remedy. The parties agree that irreparable damage would occur in the
event
that any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached.
(b) Specific
Performance.
It is
accordingly agreed that the parties hereto shall be entitled to seek an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity.
Section
8.10 Governing
Law; Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York, without regard to principles of conflict of laws. The
parties
hereto hereby declare that it is their intention that this Agreement shall
be
regarded as made under the laws of the State of New York and that the laws
of
the State of New York shall be applied in interpreting its provisions in
all
cases where legal interpretation shall be required.
Section
8.11 Rules
of Construction.
The
parties to this Agreement agree that they have been represented by counsel
during the negotiation and execution of this Agreement and, therefore, waive
the
application of any Legal Requirement or rule of construction providing that
ambiguities in an agreement or other document will be construed against the
party drafting such agreement or document.
12
Section
8.12 Limitations
on Warranties.
(a) Except
for the representations and warranties contained in this Agreement and any
agreements or certificates delivered pursuant to this Agreement, the Seller
makes no other express or implied representation or warranty to the Purchaser.
The Purchaser acknowledges that, in entering into this Agreement, it has
not
relied on any representations or warranties of the Seller other than the
representations and warranties of the Seller set forth in this Agreement
or any
agreements or certificates delivered pursuant to this Agreement.
(b) Except
for the representations and warranties contained in this Agreement and any
agreements or certificates delivered pursuant to this Agreement, the Purchaser
make no other express or implied representation or warranty to the Seller.
The
Seller acknowledges that, in entering into this Agreement, it has not relied
on
any representations or warranties of the Purchaser other than the
representations and warranties of the Purchaser set forth in this Agreement
or
any agreements or certificates delivered pursuant to this Agreement.
Section
8.13 Assignment.
No
party may assign either this Agreement or any of its rights, interests or
obligations hereunder without the prior written approval of the other parties.
Any purported assignment in violation of this Section 8.13 shall be void.
Subject to the preceding sentence, this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
Section
8.14 Waiver
of Jury Trial.
EACH OF
THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS
OF THE
PURCHASER OR THE SELLER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT HEREOF.
Section
8.15 Counterparts.
This
Agreement may be executed in two or more counterparts, all of which shall
be
considered one and the same agreement and shall become effective when one
or
more counterparts have been signed by each of the parties and delivered to
the
other parties, it being understood that all parties need not sign the same
counterpart.
[Remainder
of page intentionally left blank]
13
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
above written.
THE
PURCHASER:
LABORATORIOS
DEL DR.
ESTEVE, S.A.
By: /s/ José M. Rafols Ferrer
José
M. Rafols Ferrer
Financial
Director
THE
SELLER:
DISCOVERY
LABORATORIES, INC.
By: /s/ Robert J. Capetola
Dr.
Robert J.
Capetola, Ph.D.
President
and Chief
Executive Officer
[Signature
page to Stock Purchase Agreement]
14