As
filed
with the Securities and Exchange Commission on September 28, 2006
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_______________
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
_______________
DISCOVERY
LABORATORIES, INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
94-3171943
|
|
(State
or other jurisdiction of incorporation or organization)
|
(I.R.S.
Employer Identification No.)
|
|
2600
Kelly Road, Suite 100, Warrington, Pennsylvania
|
18976-3622
|
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
Discovery
Laboratories, Inc. 401(k) Plan
(Full
title of the plan)
David
L.
Lopez, C.P.A., Esq.
Executive
Vice President, General Counsel
Discovery
Laboratories, Inc.
2600
Kelly Road, Suite 100
Warrington,
Pennsylvania 18976-3622
(215)
488-9300
(Name,
address and telephone number of agent for service)
Copies
to:
Ira
L.
Kotel, Esq.
Dickstein
Shapiro LLP
1177
Avenue of the Americas, 47th Floor
New
York,
New York 10036-2714
(212)
277-6500
CALCULATION
OF REGISTRATION FEE
|
Title
of Securities
to
be Registered
|
Amount
to be
Registered(1)
|
Proposed
Maximum Offering Price
Per
Share(2)
|
Proposed
Maximum Aggregate Offering Price(2)
|
Amount
of
Registration
Fee
|
|
Common
Stock, $0.001 par value
|
400,000
|
$1.985
|
$794,000
|
$84.96
|
(1)
Pursuant
to Rule 416 promulgated under the Securities Act of 1933, as amended, the
registration statement shall be deemed to cover any additional shares of common
stock, par value $0.001 per share, that become issuable under the 401(k) Plan
by
reason of any stock splits, stock dividends or similar
transactions.
(2)
Estimated
solely for the purpose of calculating the registration fee pursuant to Rule
457(c) promulgated under the Securities Act of 1933, as amended, by taking
the
average of the high and low sales price per share of the common stock on The
Nasdaq Global Market on September 14, 2006.
REGISTRATION
OF ADDITIONAL SECURITIES
This
registration statement is being filed pursuant to General Instruction E of
Form
S-8 under the Securities Act of 1933, as amended, to register an additional
400,000 shares of our common stock, par value $0.001 per share, that may be
issued pursuant to the 401(k) Plan (the “Plan”) of Discovery Laboratories, Inc.
(the “Company”). The Company previously registered shares of its common stock
for issuance under the Plan on a registration statement on Form S-8 filed with
the Securities and Exchange Commission (the “Commission”) on November 12, 2003
(File No. 333-110412). Pursuant to General Instruction E to Form S-8, the
contents of such registration statement, including all exhibits thereto as
applicable, are incorporated herein by reference.
All
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, 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.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
8. Exhibits.
|
Exhibit
No.
|
Description
|
Method
of Filing
|
||
|
5.1
|
Opinion
of Dickstein Shapiro LLP, legal counsel.
|
Filed
herewith.
|
||
|
23.1
|
Consent
of Dickstein Shapiro LLP (included in its opinion filed as Exhibit
5.1 to
this registration statement).
|
Filed
herewith.
|
||
|
23.2
|
Consent
of Ernst & Young LLP, independent registered public accounting
firm.
|
Filed
herewith.
|
||
|
24.1
|
Powers
of Attorney (included in signature page to this registration
statement).
|
Filed
herewith.
|
1
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
Warrington, Commonwealth of Pennsylvania on this 28th day of September, 2006.
|
DISCOVERY
LABORATORIES, INC.
(Registrant) |
||
| |
|
|
| By: | /s/ Robert J. Capetola, Ph.D. | |
|
Robert
J. Capetola, Ph.D.
President
and Chief Executive Officer
|
||
POWER
OF ATTORNEY
We,
the
undersigned officers and directors of Discovery Laboratories, Inc., and each
of
us, do hereby constitute and appoint each of Robert J. Capetola, Ph.D., and
David L. Lopez, CPA., Esq., or any of them, each acting alone, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, to do any and all acts and things in our name, place and stead,
in any and all capacities, in connection with this registration statement on
Form S-8 under the Securities Act of 1933, as amended, or any registration
statement for the same offering that is to be effective upon filing under the
Securities Act of 1933, as amended, including, without limitation, to sign
for
us or any of us in our names in the capacities indicated below any and all
amendments or supplements to this registration statement, including any and
all
stickers and post-effective amendments to the registration statement, and to
sign any and all additional registration statements relating to the same
offering of securities as this registration statement that are filed pursuant
to
Rule 462(b) under the Securities Act of 1933, as amended, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the
Securities and Exchange Commission and any applicable securities exchange or
securities self-regulatory body, 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 to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitutes or substitute, 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 indicated on the
dates indicated.
|
Signature
|
Name
& Title
|
Date
|
||
|
/s/
Robert J. Capetola
|
Robert
J. Capetola, Ph.D.
President,
Chief Executive Officer and Director
|
September
28, 2006
|
||
|
/s/
John G. Cooper
|
John
G. Cooper
Executive
Vice President and Chief Financial Officer
|
September
28, 2006
|
||
|
/s/Kathleen
A. McGowan
|
Kathleen
A. McGowan
Controller
(Principal Accounting Officer)
|
September
28, 2006
|
||
|
/s/
Herbert McDade
|
Herbert
McDade, Jr.
Chairman
of the Board of Directors
|
September
28, 2006
|
||
|
/s/
W. Thomas Amick
|
W.
Thomas Amick
Director
|
September
28, 2006
|
||
|
/s/
Max Link
|
Max
Link, Ph.D.
Director
|
September
28, 2006
|
||
|
/s/
Antonio Esteve
|
Antonio
Esteve, Ph.D.
Director
|
September
28, 2006
|
||
|
/s/
Marvin E. Rosenthale
|
Marvin
E. Rosenthale, Ph.D.
Director
|
September
28, 2006
|
2
INDEX
TO EXHIBITS
|
Exhibit
No.
|
Description
|
Method
of Filing
|
||
|
5.1
|
Opinion
of Dickstein Shapiro LLP, legal counsel.
|
Filed
herewith.
|
||
|
23.1
|
Consent
of Dickstein Shapiro LLP (included in its opinion filed as Exhibit
5.1 to
this registration statement).
|
Filed
herewith.
|
||
|
23.2
|
Consent
of Ernst & Young LLP, independent registered public accounting
firm.
|
Filed
herewith.
|
||
|
24.1
|
Powers
of Attorney (included in signature page to this registration
statement).
|
Filed
herewith.
|
[Letterhead
of Dickstein Shapiro LLP]
CONFIDENTIAL
September
28, 2006
Board
of
Directors
Discovery
Laboratories, Inc.
2600
Kelly Road, Suite 100
Warrington,
Pennsylvania 18976-3622
Discovery
Laboratories, Inc.--
401(k)
Plan
Ladies
and Gentlemen:
We
have
acted as counsel for Discovery Laboratories, Inc., a Delaware corporation (the
“Company”),
in
connection with the preparation of the Company's registration statement on
Form
S-8, and any amendments thereto (the “Registration
Statement”),
as
filed with the Securities and Exchange Commission (the “Commission”)
under
the Securities Act of 1933, as amended (the “Securities
Act”),
for
the registration under the Securities Act of up to 400,000 shares (the
“Shares”)
of the
Company's common stock, par value $0.001 per share (the “Common
Stock”),
to be
issued as matching contributions by the Company to the accounts of such of
the
Company’s employees that participate in the Company's 401(k) Plan (the
“Plan”).
You
have requested that we furnish our opinion as to matters hereinafter set forth.
In
connection with this opinion, we have examined originals or copies, certified
or
otherwise identified to our satisfaction, of (i) the Company’s Restated
Certificate of Incorporation, as amended; (ii) the Company’s Amended and
Restated By-Laws; and (iii) resolutions adopted by the Company’s Board of
Directors on September 18, 2006. We have also examined originals or copies,
certified or otherwise identified to our satisfaction, of such records of the
Company and such agreements, certificates of public officials, certificates
of
officers or other representatives of the Company, and such other documents,
certificates and records as we have deemed necessary or appropriate as a basis
for the opinions set forth herein. As to various questions of fact material
to
this opinion, we have also relied upon representations and warranties of the
Company and upon such certificates and other instruments of officers of the
Company and public officials furnished to us by the Company, in each case
without independent investigation or verification of their accuracy.
In
our
examination, we have assumed (i) the genuineness of all signatures; (ii) the
authenticity of all documents submitted to us as originals; (iii) the conformity
to original documents of all documents submitted to us as certified, conformed
or photostatic, electronic or facsimile copies and the authenticity of the
originals of such documents; (iv) the authority of all persons signing any
document; (v) the enforceability of all the documents and agreements we have
reviewed in accordance with their respective terms against the parties thereto;
and (vi) the truth and accuracy of all matters of fact set forth in all
certificates and other instruments furnished to us.
Discovery
Laboratories, Inc.
September
28, 2006
Page
2
Based
upon the foregoing, and subject to the assumptions, qualifications and
limitations set forth herein, we are of the opinion that the Shares offered
by
the Company pursuant to the Registration Statement, when issued and paid for
in
accordance with the Plan, will be validly issued, fully paid and non-assessable.
No
opinion is expressed herein with respect to any laws other than the General
Corporation Law of the State of Delaware. No opinion is expressed as to the
effect that the law of any other jurisdiction may have upon the subject matter
of the opinion expressed herein under conflicts of law principles, rules and
regulations or otherwise.
This
opinion is expressed as of the date hereof. We assume no obligation to
supplement this letter if any applicable laws change after the date hereof
or if
we become aware of any new facts that might effect any view expressed herein
after the date hereof.
We
hereby
consent to the filing of this opinion as Exhibit 5.1 to the Registration
Statement. In giving this consent, we do not hereby admit that we are within
the
category of persons whose consent is required by Section 7 of the Securities
Act
or the rules and regulations promulgated thereunder by the
Commission.
The
foregoing opinion is delivered to the Board of Directors of the Company in
connection with the Registration Statement, and not for any other
purpose.
We
wish
to call your attention to the fact that the fair market value of all securities
of the Company that are beneficially owned by attorneys of this Firm exceeds
$50,000.
| |
|
Very
truly yours,
|
| /s/ Dickstein Shapiro LLP | ||
Exhibit
23.2
Consent
of Independent Registered Public Accounting Firm
We
consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-xxxxx) pertaining to the Discovery Laboratories, Inc. 401(k) Plan
of
our reports dated January 27, 2006, with respect to the consolidated financial
statements of Discovery Laboratories, Inc. included in its Annual Report (Form
10-K) for the year ended December 31, 2005, Discovery Laboratories, Inc.
management’s assessment of the effectiveness of internal control over financial
reporting, and the effectiveness of internal control over financial reporting
of
Discovery Laboratories, Inc. filed with the Securities and Exchange
Commission.
/s/
Ernst
& Young LLP
Philadelphia,
Pennsylvania
September
26, 2006