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
December
11, 2007
Date
of
Report (Date of earliest event reported)
Discovery
Laboratories, Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
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000-26422
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94-3171943
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(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
5.03. Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
The
shares of common stock of Discovery Laboratories, Inc. (the “Company”) are
listed on the Nasdaq Global Market. On August 8, 2006, the Securities and
Exchange Commission approved amendments to Nasdaq Rule 4350(l), which requires
securities listed on the Nasdaq Global Market to be eligible for the Direct
Registration System (“DRS”). DRS permits an investor’s ownership to be recorded
and maintained on the books of the issuer or the transfer agent without the
issuance of a physical stock certificate. The rule change does not require
issuers to actually participate in DRS or to eliminate physical stock
certificates; however, the change requires that the listed securities be
eligible for DRS. On December 11, 2007, the Board of Directors of the Company
amended Article VII, Section 1 and Section 3 of the Company’s Amended and
Restated By-Laws in their entirety to allow for the issuance of uncertificated
shares, thereby enabling participation in DRS.
A
copy of
the amendment is filed as Exhibit 3.1 hereto and is incorporated herein by
reference.
Item
8.01. Other
Events.
On
December 12, 2007, the Company issued a press release announcing that it has
completed its previously announced registered direct offering of 10 million
shares of the Company’s common stock to select institutional investors for gross
proceeds of approximately $25 million. The Company expects to receive
approximately $23.6 million in net proceeds, after deducting the placement
agent
fee of $1.25 million and other fees and expenses of the offering. The press
release, dated December 12 2007, is filed as Exhibit 99.1 to this report and
is
incorporated herein by reference.
Item
9.01. Financial
Statements and Exhibits.
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(d)
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Exhibits:
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3.1
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Amended
Article VII, Sections 1 and 3 to the Bylaws of Discovery Laboratories,
Inc.
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99.1
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Press
Release, dated December 12, 2007.
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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.
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.
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Discovery
Laboratories, Inc.
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By:
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/s/
Robert J. Capetola
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Name:
Robert J. Capetola, Ph.D.
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Title:
President and Chief Executive
Officer
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Date:
December 12, 2007
Exhibit
3.1
TEXT
OF AMENDMENT TO THE BYLAWS
OF
DISCOVERY LABORATORIES, INC.
Effective
December 11, 2007, Article VII, Section 1 and Section 3 of the Amended and
Restated By-Laws of Discovery Laboratories, Inc. were amended in their entirety
and read as follows:
Section
1. Stock
Certificates.
Shares
of stock of the Corporation shall be represented by certificates, or shall
be
uncertificated shares that may be evidenced by a book-entry system maintained
by
the registrar of such stock, or a combination of both. To the extent that shares
are represented by certificates, such certificates shall be in a form approved
by the Board. Each certificate shall be signed in the name of the Corporation
by
(A) the Chairman or Vice Chairman of the Board or the President or a Vice
President, and (B) the Secretary or an Assistant Secretary or the Treasurer
or
an Assistant Treasurer, and sealed with the seal of the Corporation (which
seal
may be a facsimile, engraved or printed); provided,
however,
that
where any such certificate is countersigned by a transfer agent other than
the
Corporation or one of its employees, or is registered by a registrar other
than
the Corporation or one of its employees, the signature of the officers of the
Corporation upon such certificates may be facsimiles, engraved or printed.
In
case any officer who shall have signed or whose facsimile signature has been
placed upon such certificates shall have ceased to be such officer before such
certificates shall be issued, they may nevertheless be issued by the Corporation
with the same effect as if such officer were still in office at the date of
their issue.
Section
3. Transfer
of Shares.
Subject
to any restrictions on transfer and unless otherwise provided by the Board,
shares of stock may be transferred only on the books of the Corporation by
the
surrender to the Corporation or its transfer agent of shares in certificated
form, properly endorsed or accompanied by a written assignment or power of
attorney properly executed, with transfer stamps (if necessary) affixed, or
upon
proper instructions from the holder of uncertificated shares, in each case
with
such proof of the authenticity of signature as the Corporation or its transfer
agent may reasonably require. Except as otherwise provided by applicable law,
the Corporation shall be entitled to recognize the exclusive right of a person
in whose name any share or shares stand on the record of stockholders as the
owner of such share or shares for all purposes, including, without limitation,
the rights to receive dividends or other distributions and to vote as such
owner, and the Corporation may hold any such stockholder of record liable for
calls and assessments and the Corporation shall not be bound to recognize any
equitable or legal claim to or interest in any such share or shares on the
part
of any other person whether or not it shall have express or other notice
thereof. Whenever any transfers of shares shall be made for collateral security
and not absolutely, and both the transferor and transferee request the
Corporation to do so, such fact shall be stated in the entry of the
transfer. Exhibit 3.1
Exhibit
99.1
Discovery
Labs Announces Completion of $25 Million Registered Direct
Offering
Warrington,
PA — December 12, 2007 — Discovery
Laboratories, Inc. (Nasdaq: DSCO), has completed its previously announced
registered direct offering of 10,000,000 shares of its common stock. The shares
were issued and sold to a select group of institutional investors at a price
of
$2.50 per share resulting in gross proceeds of $25 million. Jefferies &
Company, Inc. acted as placement agent for the transaction.
All
of
the shares of common stock were offered and sold by Discovery Labs pursuant
to
an effective registration statement previously filed with the Securities and
Exchange Commission. This
press release shall not constitute an offer to sell or the solicitation of
an
offer to buy nor shall there be any sale of the securities in any state or
jurisdiction in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such state
or
jurisdiction. The shares of common stock may only be offered by means of a
prospectus, forming a part of the effective registration statement. Copies
of
the final prospectus supplement and accompanying base prospectus can be obtained
from Jefferies & Co., Inc., 520 Madison Avenue, 11th
Floor,
New York, NY 10022 or
by fax
request at 212-284-2208.
About
Discovery Labs
Discovery
Laboratories, Inc. is a biotechnology company developing Surfactant Replacement
Therapies (SRT) for respiratory diseases. Surfactants are produced naturally
in
the lungs and are essential for breathing. Discovery Labs’ technology produces a
precision-engineered surfactant that is designed to closely mimic the essential
properties of natural human lung surfactant.
Discovery
Labs’ lead product candidate, Surfaxin®,
is the
subject of an Approvable Letter from the FDA for the prevention of Respiratory
Distress Syndrome in premature infants. Surfaxin is also being developed for
other neonatal and pediatric indications. Aerosurf™, Discovery Labs’ aerosolized
SRT, is being developed to potentially obviate the need for intubation and
conventional mechanical ventilation and holds
the
promise to significantly expand the use of surfactants in respiratory medicine.
For
more
information, please visit our website at www.Discoverylabs.com.
To
the extent that statements in this press release are not strictly historical,
all such statements are forward-looking, and are made pursuant to the safe
harbor provisions of the Private Securities Litigation Reform Act of 1995.
These
forward-looking statements are subject to certain risks and uncertainties that
could cause actual results to differ materially from the statements made. Among
the risk factors which could affect Discovery Labs actual results and could
cause results to differ from those contained in these forward-looking statements
are the risks that: Discovery Labs may be unable to profitably develop and
market its products; financial market conditions may change; Discovery Labs
may
not be able to raise additional capital or enter into additional collaboration
agreements (including strategic alliances for development or commercialization
of SRT); Discovery Labs may not be able to attract or retain qualified personnel
or timely provide for successful sales and marketing activities; Discovery
Labs’
research and development efforts may not progress; Discovery Labs may not be
successful in the FDA or other regulatory agency review process generally,
including that such regulatory authority will not approve the marketing and
sale
of a drug product even after accepting an application or may withhold, delay
and/or limit marketing a drug product by indication or impose other label
limitations; Discovery Labs’ recently-submitted response to the Approvable
Letter may not satisfy the FDA; Discovery Labs or its third party manufacturers
and development partners may be unable to manufacture or provide adequate
supplies of drug substances and expertise to allow for completion of any of
Discovery Labs clinical studies; Discovery Labs and its collaborators may be
unable to develop, manufacture and successfully commercialize products that
combine Discovery Labs drug products with innovative aerosolization
technologies; Discovery Labs may not be able to successfully manufacture its
drug product candidates; Discovery Labs’ significant, time-consuming and costly
research, development, pre-clinical studies, clinical testing and efforts to
gain regulatory approval for any products that it may develop (independently
or
in connection with collaboration arrangements) may not succeed; other companies
may develop competing therapies and/or technologies; reimbursement and health
care reform may adversely affect Discovery Labs; and Discovery Labs may become
involved in securities, product liability and other litigation. The foregoing
risks and others are further described in Discovery Labs 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.
Company
Contact:
Lisa
Caperelli, Investor Relations
215-488-9413