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
30, 2007
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:
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
5.02. Compensatory
Arrangements of Certain Officers.
On
October 30, 2007, Discovery Laboratories, Inc. (the “Company”)
and
each of the individuals set forth the table below (collectively, the
“Grantees”)
entered into Stock Issuance Agreements (the “Agreements”)
under
the Company’s Amended
and Restated 1998 Stock Incentive Plan pursuant to which each Grantee
received a number of restricted shares of the Company’s common stock, par value
$0.001 per share, (the “RSAs”)
as set
forth in the table below, to replace certain shares of phantom stock previously
granted to each Grantee.
Under
the
Agreements the RSAs are subject to a vesting schedule whereby such shares
shall
fully vest on the date the Company’s first drug product first becomes widely
commercially available, as such date is determined by the Company. Prior
to such
date, a Grantee’s RSAs shall be non-transferable and subject to automatic
cancellation upon the termination of such Grantee’s employment for any
reason.
|
Name
and Position
|
Grants
of Restricted Shares Effective
October
30, 2007
|
|
Robert
Capetola,
Ph.D.
Chief
Executive Officer and President
|
15,000
|
|
John
G. Cooper
Executive
Vice President, Chief Financial Officer and Treasurer
|
9,000
|
|
David
L. Lopez, Esq., CPA
Executive
Vice President, General Counsel, Chief Compliance Officer and
Secretary
|
9,000
|
|
Thomas
F. Miller
Senior
Vice President Commercialization and Corporate Development
|
3,000
|
|
Robert
Segal, M.D.
Senior
Vice President Medical and Scientific Affairs, and Medical
Officer
|
4,000
|
The
foregoing summary of the Agreements is qualified in its entirety by the full
text of the Agreements, a form of which is attached to this Current Report
on
Form 8-K as Exhibit
10.1,
and is
incorporated herein by reference.
Item
9.01. Financial
Statements and Exhibits.
(d) Exhibits
10.1 Form
of
Stock Issuance Agreement, dated as of October 30, 2007, between the Discovery
Laboratories, Inc. and the Grantees.
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 | |
|
Robert
J. Capetola, Ph.D.
President
and Chief Executive Officer
|
||
Date:
November 5, 2007
EXHIBIT
INDEX
10.1 Form
of
Stock Issuance Agreement, dated as of October 30, 2007, between the Discovery
Laboratories, Inc. and the Grantees.
Exhibit
10.1
STOCK
ISSUANCE AGREEMENT
STOCK
ISSUANCE AGREEMENT (this “Agreement”)
dated
as of October 30, 2007 (the “Effective
Date”),
between DISCOVERY LABORATORIES, INC., a Delaware corporation (the “Company”),
and
Grantee.
WHEREAS,
Grantee is an employee of the Company; and
WHEREAS,
in order to reward Grantee for Grantee’s efforts, the Company has agreed to
grant to Grantee that number of restricted shares (the “Restricted
Shares”)
of the
common stock, par value $0.001 per share, of the Company (the “Common
Stock”)
specified in the Notice of Grant, subject to the terms, conditions and
restrictions set forth in this Agreement and in the Stock Issuance Program
set
forth in Article
III of the Company’s Amended and Restated 1998 Stock Incentive Plan (the
“Plan”).
NOW,
THEREFORE, in consideration of the above premises and the mutual covenants
set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending
to be
legally bound, hereby agree as follows:
SECTION
1. Grant
of Restricted Shares.
On the
date hereof, the Company hereby grants to Grantee that number of Restricted
Shares of Common Stock of the Company specified in the Notice of Grant. All
Restricted Shares granted pursuant to this Section 1 are subject to the terms,
conditions and restrictions set forth in this Agreement and in the
Plan.
SECTION
2. Vesting
Schedule.
Subject
to the earlier cancellation of the Restricted Shares as provided in Section
4
below, the Restricted Shares awarded to Grantee shall fully vest on the date
that Surfaxin®
for RDS
first becomes widely commercially available, as such date is determined by
the
Company.
Notwithstanding
the foregoing, upon the occurrence of any Corporate Transaction or Change in
Control (as such terms are defined in the Plan) all of the Restricted Shares
that have not yet vested shall vest as of the effective date of such Corporate
Transaction or Change in Control
SECTION
3. Restrictions
on Transfer.
Grantee
agrees that, in addition to any restrictions on transfer that may be imposed
under applicable state and federal securities laws, the Restricted Shares shall
be subject to the following restrictions on transfer:
(a) Grantee
shall not, without the prior written consent of the Company, offer, transfer,
sell, pledge, assign, hypothecate or otherwise encumber or dispose of any
unvested
Restricted Shares.
(b) Any
attempted assignment, transfer, pledge, hypothecation or other disposition
of
the Restricted Shares contrary to the provisions hereof, and the levy of any
execution, attachment or similar process upon the Restricted Shares, shall
be
null and void and without effect.
SECTION
4. Cancellation
of Restricted Shares.
If
Grantee’s employment with the Company is terminated for any reason, all unvested
Restricted Shares granted hereunder shall automatically be cancelled and void
and be of no further force or effect without the need for any further action
on
behalf of the Company. Upon any cancellation of the Restricted Shares, the
Grantee shall deliver to the Company the certificate(s) representing such
Restricted Shares.
SECTION
5. [Reserved]
SECTION
6. Voting
Rights.
Grantee
shall be entitled to vote the Restricted Shares, whether or not they are then
vested.
SECTION
7. Stock
Certificates.
(a) Certificates.
The
Company shall hold the Restricted Shares in custody with the transfer agent
in
book-entry form until they shall have vested. When the Restricted Shares are
fully vested, the Company will cause the transfer agent to issue a certificate
evidencing the Restricted Shares.
(b) Stock
Legends.
The
Restricted Shares shall be held by the transfer agent subject to the following
restriction (in addition to any restriction (s) required under applicable state
or federal securities laws):
THESE
RESTRICTED SHARES ARE SUBJECT TO CERTAIN RESTRICTIONS UPON TRANSFER AND RIGHTS
OF CANCELLATION AS SET FORTH IN A STOCK ISSUANCE AGREEMENT, DATED OCTOBER 30,
2007, BETWEEN DISCOVERY LABORATORIES, INC. (THE “CORPORATION”) AND THE
SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE CORPORATION.
SECTION
8. Representations
and Warranties.
Grantee
represents to the Company that:
(a) GRANTEE
ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THIS AGREEMENT
IS
EARNED ONLY THROUGH GRANTEE’S CONTINUED AND SATISFACTORY SERVICE TO THE COMPANY
THROUGH THE VESTING DATE AND NOT THROUGH THE GRANT OF RESTRICTED SHARES
HEREUNDER.
(b) Grantee
acknowledges and agrees that this Agreement is not a contract of employment
and
that nothing in this Agreement shall confer upon Grantee any right with respect
to continuation of service to the Company, nor shall it interfere in any way
with Grantee’s right or the Company’s right to terminate Grantee’s service to
the Company at any time, with or without cause.
(c) Grantee
hereby accepts this Stock Issuance Agreement subject to all of the terms and
provisions hereof. Grantee has reviewed this Agreement in its entirety, has
had
an opportunity to obtain the advice of counsel prior to executing this
Agreement, and fully understands all provisions of this Agreement.
(d) Grantee
acknowledges that, as a condition to the vesting of the Restricted Shares,
the
representations and warranties of this Section 8 shall be true and correct
as of
the vesting date as if they had been made on such date with respect to vested
Restricted Shares.
(e) Grantee
acknowledges that the grant of the Restricted Shares hereunder does not create
any contractual or other right to receive future awards or benefits in lieu
of
awards, and all future awards, if any, and the terms and conditions thereof,
will be at the sole discretion of the Company.
(f) Grantee
acknowledges that the future value of the Restricted Shares is unknown and
cannot be predicted with certainty.
(g) Grantee
acknowledges that the Company and its counsel are entitled to rely on the
representations made above.
SECTION
9. Tax
Consequences.
Grantee
has reviewed with Grantee’s own tax advisors the federal, state, local and
foreign tax consequences of this Agreement. Grantee is relying solely on such
advisors and not on any statements or representations of the Company or any
of
its agents. Grantee understands that Grantee (and not the Company) shall be
responsible for Grantee’s own tax liability that may arise as result of the
transactions contemplated by this Agreement. Grantee understands that Section
83
of the Code, taxes as ordinary income the fair market value, as defined by
the
Code, of the Restricted Shares as of the date they become “substantially vested”
within the meaning of Section 1.83-3(b) of the regulations promulgated pursuant
to Code Section 83. Grantee understands that Grantee may elect to be taxed
at
the time the Restricted Shares are granted, rather than at the time, if any,
that they become substantially vested, by filing an election under Section
83(b)
of the Code with the Internal Revenue Service within 30 days from the date
of
grant.
GRANTEE
ACKNOWLEDGES THAT IT IS GRANTEE’S SOLE RESPONSIBILITY AND NOT THE COMPANY’S TO
FILE A TIMELY ELECTION UNDER CODE SECTION 83(b), EVEN IF GRANTEE REQUESTS THE
COMPANY, OR ITS REPRESENTATIVES, TO MAKE THIS FILING ON GRANTEE’S
BEHALF.
SECTION
10. Notices.
Any
notice required to be given or delivered to the Company under the terms of
this
Agreement shall be in writing and addressed to the Company at 2600 Kelly Road,
Suite 100, Warrington, Pennsylvania 18976, Attention: David L. Lopez, C.P.A.,
Esq., Senior Vice President, General Counsel, or to such other address as shall
be provided in writing to Grantee. Any notice required to be given or delivered
to Grantee shall be in writing and addressed to the most recent address of
Grantee, as set forth in the books and records of the Company. All notices
shall
be deemed effective upon personal delivery against receipt therefor; one day
after being sent by Federal Express or similar overnight delivery; or three
days
after being mailed registered or certified mail, postage prepaid, and properly
addressed to the party to be notified.
SECTION
11. Withholding.
Grantee
shall pay to the Company, or make arrangements satisfactory to the Company
regarding the payment of, any applicable Federal, state or local income or
employment taxes, including withholding taxes, arising in connection with the
grant or vesting of any of the Restricted Shares. The Company, in its
discretion, may allow the satisfaction of any withholding taxes by retention
of
Restricted Shares or delivery of already owned shares of Common Stock in
accordance with procedures determined by the Company’s Plan Administrator. The
Company shall have the right to deduct from any payment of any kind otherwise
due to Grantee, including payments of Grantee’s salary, any taxes required to be
withheld by the Company with respect to the Restricted Shares.
SECTION
12. Entire
Agreement.
This
Agreement and the Plan contain the entire understanding between the parties
concerning the subject matter contained herein and therein. There are no
representations, agreements, arrangements or understandings, oral or written,
between the parties hereto, relating to the subject matter of this Agreement
and
the Plan that are not fully expressed herein or therein.
SECTION
13. Counterparts.
This
Agreement may be signed in one or more counterparts, all of which shall be
considered one and the same agreement.
SECTION
14. Further
Assurances.
Each
party to this Agreement agrees to perform all further acts and to execute and
deliver all further documents as may be reasonably necessary to carry out the
intent of this Agreement.
SECTION
15. Construction.
Whenever used in this Agreement, the singular number will include the plural,
and the plural number will include the singular, and the masculine or neuter
gender shall include the masculine, feminine, or neuter gender. The headings
of
the Sections of this Agreement have been inserted for purposes of convenience
and shall not be used for interpretive purposes.
SECTION
16. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, without regard to the conflicts of laws principles of such
state.
SECTION
17. Successors.
The
rights and obligations of the Company under this Agreement shall be transferable
to any successor thereto. The rights and obligations of Grantee under this
Agreement may only be assigned with the prior written consent of the Company.
SECTION
18. Amendment.
This
Agreement may only be amended by the written consent of the parties to this
Agreement at the time of such amendment.
SECTION
19. No
Waiver.
Either
party’s failure to enforce any of the provisions of this Agreement shall not in
any way be construed as a waiver of any such provision, nor prevent that party
from thereafter enforcing any other provision of this Agreement. The rights
granted both parties hereunder are cumulative and shall not constitute a waiver
of either party’s right to assert any other available legal remedy.
IN
WITNESS WHEREOF, the parties hereto have entered into this Agreement as of
the
date first above written.
|
Grantee |
||
| DISCOVERY LABORATORIES, INC. | ||
| |
|
|
| By: | ||
|
Name: Robert J. Capetola, Ph.D. |
||
| Title: President and CEO | ||