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
January
3, 2008
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. |
Departure
of Directors or Certain Officers; Election of Directors; Appointment
of
Certain Officers; Compensatory Arrangements of Certain
Officers.
|
Effective
January 4, 2008, John G. Cooper will assume the role of Principal Accounting
Officer to Discovery Laboratories, Inc. (the “Company”),
replacing Kathleen A. McGowan, Director, Finance and Controller, who resigned
as
Principal Accounting Officer as of January 3, 2008 and is leaving the
Company.
On
January 3, 2008, the Company and each of Robert J. Capetola, President and
Chief
Executive Officer, John G. Cooper, Executive Vice President, Chief Financial
Officer and Treasurer, and David L. Lopez, Esq., CPA, Executive Vice President,
General Counsel, Chief Compliance Officer and Secretary, entered into an
Amendment (collectively, the “Amendments”)
to
their respective Amended and Restated Employment Agreements dated as of May
4,
2006 (the “Agreements”).
Under
each of the Amendments, (a) the term of the Agreement is extended until May
3,
2010, subject to automatic one-year extensions as provided in the Amendments,
and (b) in connection with a change of control, all shares of stock and options
held by the executive shall accelerate and become fully vested and all
restrictions related thereto shall be lifted effective on the date of the change
of control. In addition, under the Amendments to the Agreements of Messrs.
Cooper and Lopez, (i) in the event of a termination of employment in connection
with a change of control, a lump sum payment provided in the Agreements shall
be
increased from a multiple of two to a multiple of two and one half times the
sum
of the executive’s base salary and bonus, and (ii) in the event of a termination
of employment by the Company without cause or by the executive for good reason,
a lump sum payment provided in the Agreements is increased from a multiple
of
one to a multiple of one and one half times the sum of the executive’s base
salary and bonus.
The
description of the terms and conditions of the Amendments and the Agreements
and
the rights and obligations of the Company and executives in connection therewith
are qualified by reference in their entirety to the definitive terms and
conditions of the Amendments, the form of which is attached hereto as Exhibits
10.1 through 10.3, and the Agreements.
| Item 9.01. |
Financial
Statements and Exhibits.
|
| (d) |
Exhibits
|
| 10.1. |
Amendment
to the Amended and Restated Employment Agreement dated as of May
4, 2006
between Robert J. Capetola and Discovery Laboratories,
Inc.
|
| 10.2. |
Amendment
to the Amended and Restated Employment Agreement dated as of May
4, 2006
between David L. Lopez and Discovery Laboratories,
Inc.
|
| 10.3. |
Amendment
to the Amended and Restated Employment Agreement dated as of May
4, 2006
between John G. Cooper and Discovery Laboratories,
Inc.
|
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. |
||
| Date: January 3, 2008 | President and Chief Executive Officer | |
Exhibit
10.1
January
3, 2008
Robert
J.
Capetola, Ph.D.
c/o
Discovery Laboratories, Inc.
2600
Kelly Road
Suite
100
Warrington,
PA 18976
| Re: |
Amendment
to Employment Agreement
|
Dear
Dr.
Capetola,
This
amendment is attached to and made part of the Amended and Restated Employment
Agreement dated as of May 4, 2006 between you and Discovery Laboratories, Inc.
(as it may have been previously amended, the “Agreement”).
Effective as of the date hereof the parties hereby agree that certain provisions
of the Agreement are revised as set forth below. Capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to such terms as
set
forth in the Agreement.
1. Section
2
of the Agreement is hereby amended to provide (i) that the Term of the Agreement
shall continue through May 3, 2010, and (ii) that, commencing on May 4, 2010,
and on each May 4th
thereafter, the Term of the Agreement shall automatically be extended for one
additional year, except in the event of notice as provided for
therein.
2. The
second sentence of Section 2 of the Agreement is hereby amended and restated
in
its entirety to read as follows:
“Upon
the
occurrence of a Change of Control during the Term of this Agreement, including
any extensions thereof, this Agreement shall automatically be extended until
the
end of the Effective Period if the end of the Effective Period is after the
then
current expiration date of the Term.”
3. The
first
sentence of Section 6(b) of the Agreement is hereby amended and restated in
its
entirety to read as follows:
“Notwithstanding
any provision to the contrary in any Company equity or other incentive plan
or
any stock option or restricted stock agreement between the Company and the
Executive, all shares of stock and all options to acquire Company stock held
by
the Executive shall accelerate and become fully vested and, with respect to
restricted stock, all restrictions shall be lifted, upon the Change of Control
Date.”
2
Except
as
amended herein, the remaining terms and conditions of the Agreement shall remain
in full force and effect. This addendum confirms an agreement between you and
the Company with respect to the subject matter hereof and is a material part
of
the consideration stated in the Agreement and mutual promises made in connection
therewith. Please indicate your acceptance of the terms contained herein by
signing both copies of this amendment, retaining one copy for your records,
and
forwarding the remaining copy to the Company.
DISCOVERY
LABORATORIES, INC.
By:
Name: David
L.
Lopez
Title: Executive
Vice President and General Counsel
Accepted
and Agreed to:
Name: Robert
J.
Capetola, Ph.D.
Exhibit
10.2
January
3, 2008
David
L.
Lopez
c/o
Discovery Laboratories, Inc.
2600
Kelly Road
Suite
100
Warrington,
PA 18976
| Re: |
Amendment
to Employment Agreement
|
Dear
Mr.
Lopez,
This
amendment is attached to and made part of the Amended and Restated Employment
Agreement dated as of May 4, 2006 between you and Discovery Laboratories, Inc.
(as it may have been previously amended, the “Agreement”).
Effective as of the date hereof the parties hereby agree that certain provisions
of the Agreement are revised as set forth below. Capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to such terms as
set
forth in the Agreement.
1. Section
2
of the Agreement is hereby amended to provide (i) that the Term of the Agreement
shall continue through May 3, 2010, and (ii) that, commencing on May 4, 2010,
and on each May 4th
thereafter, the Term of the Agreement shall automatically be extended for one
additional year, except in the event of notice as provided for
therein.”
2. The
first
sentence of Section 6(b) of the Agreement is hereby amended and restated in
its
entirety to read as follows:
“Notwithstanding
any provision to the contrary in any Company equity or other incentive plan
or
any stock option or restricted stock agreement between the Company and the
Executive, all shares of stock and all options to acquire Company stock held
by
the Executive shall accelerate and become fully vested and, with respect to
restricted stock, all restrictions shall be lifted, upon the Change of Control
Date.”
3. Section
7(b)(iii) of the Agreement is hereby amended and restated in its entirety to
read as follows:
“Within
10 days after the Date of Termination, a lump sum cash payment in an amount
equal to the product of one and one-half (1.5) times the sum of (A) the
Executive’s Base Salary then in effect (determined without regard to any
reduction in such Base Salary constituting Good Reason) and (B) the Highest
Annual Bonus;”
2
4. Section
7(c)(iii) of the Agreement is hereby amended and restated in its entirety to
read as follows:
“Within
10 days after the Date of Termination, a lump sum cash payment in an amount
equal to the product of two and one-half (2.5) times the sum of (A) the
Executive’s Base Salary then in effect (determined without regard to any
reduction in such Base Salary constituting Good Reason) and (B) the Highest
Annual Bonus;”
Except
as
amended herein, the remaining terms and conditions of the Agreement shall remain
in full force and effect. This addendum confirms an agreement between you and
the Company with respect to the subject matter hereof and is a material part
of
the consideration stated in the Agreement and mutual promises made in connection
therewith. Please indicate your acceptance of the terms contained herein by
signing both copies of this amendment, retaining one copy for your records,
and
forwarding the remaining copy to the Company.
DISCOVERY
LABORATORIES, INC.
By:
Name: Robert
J.
Capetola, Ph.D.
Title: President
and CEO
Accepted
and Agreed to:
Name: David
L.
Lopez
Exhibit
10.3
January
3, 2008
John
G.
Cooper
c/o
Discovery Laboratories, Inc.
2600
Kelly Road
Suite
100
Warrington,
PA 18976
| Re: |
Amendment
to Employment Agreement
|
Dear
Mr.
Cooper,
This
amendment is attached to and made part of the Amended and Restated Employment
Agreement dated as of May 4, 2006 between you and Discovery Laboratories, Inc.
(as it may have been previously amended, the “Agreement”).
Effective as of the date hereof the parties hereby agree that certain provisions
of the Agreement are revised as set forth below. Capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to such terms as
set
forth in the Agreement.
1. Section
2
of the Agreement is hereby amended to provide (i) that the Term of the Agreement
shall continue through May 3, 2010, and (ii) that, commencing on May 4, 2010,
and on each May 4th
thereafter, the Term of the Agreement shall automatically be extended for one
additional year, except in the event of notice as provided for
therein.
2. The
first
sentence of Section 6(b) of the Agreement is hereby amended and restated in
its
entirety to read as follows:
“Notwithstanding
any provision to the contrary in any Company equity or other incentive plan
or
any stock option or restricted stock agreement between the Company and the
Executive, all shares of stock and all options to acquire Company stock held
by
the Executive shall accelerate and become fully vested and, with respect to
restricted stock, all restrictions shall be lifted, upon the Change of Control
Date.”
3. Section
7(b)(iii) of the Agreement is hereby amended and restated in its entirety to
read as follows:
“Within
10 days after the Date of Termination, a lump sum cash payment in an amount
equal to the product of one and one-half (1.5) times the sum of (A) the
Executive’s Base Salary then in effect (determined without regard to any
reduction in such Base Salary constituting Good Reason) and (B) the Highest
Annual Bonus;”
2
4. Section
7(c)(iii) of the Agreement is hereby amended and restated in its entirety to
read as follows:
“Within
10 days after the Date of Termination, a lump sum cash payment in an amount
equal to the product of two and one-half (2.5) times the sum of (A) the
Executive’s Base Salary then in effect (determined without regard to any
reduction in such Base Salary constituting Good Reason) and (B) the Highest
Annual Bonus;”
Except
as
amended herein, the remaining terms and conditions of the Agreement shall remain
in full force and effect. This addendum confirms an agreement between you and
the Company with respect to the subject matter hereof and is a material part
of
the consideration stated in the Agreement and mutual promises made in connection
therewith. Please indicate your acceptance of the terms contained herein by
signing both copies of this amendment, retaining one copy for your records,
and
forwarding the remaining copy to the Company.
DISCOVERY
LABORATORIES, INC.
By:
Name: Robert
J.
Capetola, Ph.D.
Title: President
and Chief Executive Officer
Accepted
and Agreed to:
Name: John
G.
Cooper