As filed
with the Securities and Exchange Commission on March 31, 2010
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)
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Delaware
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94-3171943
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(State
or Other Jurisdiction of Incorporation)
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(I.R.S.
Employer Identification Number)
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2600
Kelly Road, Suite 100
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Warrington,
Pennsylvania 18976-3622
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(Address,
Including Zip Code and Telephone Number, Including Area Code, of Registrant’s
Principal Executive Offices)
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
(215)
488-9300
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copies
to:
Ira L.
Kotel, Esq.
Sonnenschein
Nath & Rosenthal LLP
Two World
Financial Center
New York,
New York 10281
(212)
768-6700
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
| Large accelerated filer o | Accelerated filer x | ||
| Non-accelerated filer o (Do not check if a smaller reporting company | Smaller reporting company o |
CALCULATION
OF REGISTRATION FEE
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Title
of Securities
to
be Registered
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Amount
to be
Registered(1)
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Proposed
Maximum
Offering
Price
Per
Share(2)
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Proposed
Maximum
Aggregate
Offering
Price(2)
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Amount
of
Registration
Fee
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Common
Stock, $0.001 par value
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350,000
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$0.52
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$182,000
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$12.98
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(1)
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Pursuant
to Rule 416 promulgated under the Securities Act of 1933, as amended, this
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. In addition, this registration statement also
covers an indeterminate amount of interests to be offered or sold pursuant
to the Discovery Laboratories Inc. 401(k)
Plan.
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(2)
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Estimated
solely for the purpose of calculating the registration fee pursuant to
Rules 457(c) and (h) 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 March 30,
2010.
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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 (the “Securities Act”), to
register an additional 350,000 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”) plus an indeterminate amount of interests in
the Plan. The Company previously registered shares of its common
stock for issuance under the Plan on registration statements on Form S-8 filed
with the Securities and Exchange Commission (the “Commission”) on November 12,
2003 (File No. 333-110412), September 28, 2006 (File No. 333-137643),
December 23, 2008 (File No. 333-156443), and January 22, 2010 (File No.
333-164470). Pursuant to General Instruction E to Form S-8, the
contents of such registration statements, including all exhibits thereto as
applicable, are incorporated herein by reference, except that the provisions
contained in Part II of such earlier registration statement are modified as set
forth in this Registration Statement.
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
3. Incorporation of
Documents by Reference.
The SEC allows us to “incorporate by
reference” the information we file with it, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this
registration statement, and information that we file later with the SEC will
automatically update and supersede this information. We incorporate
by reference the documents filed with SEC listed below:
1. Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2009, filed on
March 10, 2010;
2. Our
Current Report on Form 8-K filed on March 15, 2010 (excluding the matters in
Item 2.02 and Exhibit 99.1 therein, which are not incorporated by reference
herein); and
3. The
description of our common stock contained in our Registration Statement on Form
8-A filed with the SEC on July 13, 1995.
Furthermore, all reports and other
documents subsequently filed by us with the SEC pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Securities Exchange Act of 1934 prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this registration statement and to be
a part of this registration statement from the date of filing of such reports
and documents. Any statement contained in any 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 in this registration statement or in any other subsequently
filed document which also is or is deemed to be incorporated by reference in
this registration statement modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
registration statement.
Item
8. Exhibits.
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Exhibit
No.
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Description
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Method of
Filing
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3.1
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Amended
and Restated Certificate of Incorporation of Discovery Laboratories,
Inc.
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Incorporated
by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K
filed on December 9, 2010.
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4.1
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Form
of Discovery Laboratories Inc. 401(k) Plan.
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Incorporated
by reference to Exhibit 4.1 to the Registrant’s Registration Statement on
Form S-8 filed on January 22, 2010 (File No.
333-164470).
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5.1
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Opinion
of Sonnenschein Nath & Rosenthal LLP, legal counsel.*
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Filed herewith. |
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23.1
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Consent
of Sonnenschein Nath & Rosenthal LLP (included in Exhibit
5.1)
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Filed herewith. |
2
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23.2
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Consent
of Ernst & Young LLP, independent registered public accounting
firm.
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Filed
herewith.
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24.1
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Powers
of Attorney (included in signature page to this registration
statement).
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Filed
herewith.
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* In
accordance with Item 8 of Form S-8, and in lieu of the opinion of counsel or
determination contemplated by Item 601(b)(5) of Regulation S-K, the Company
hereby undertakes that it will submit the Plan and all amendments thereto to the
Internal Revenue Service (“IRS”) in a timely manner, and that it will make all
changes required by the IRS in order to qualify the Plan.
SIGNATURES
Pursuant
to the requirements of the Securities Act, 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 31st day of
March, 2010.
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DISCOVERY LABORATORIES,
INC.
(Registrant)
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By:
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/s/ W. Thomas Amick | |
| W. Thomas Amick | |||
| interim 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 W. Thomas Amick, 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, or any registration statement for the same offering that is to be
effective upon filing under the Securities Act, 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 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, 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, this registration statement has been
signed by the following persons in the capacities indicated on the dates
indicated.
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Signature
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Name & Title
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Date
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/s/ W. Thomas
Amick
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W.
Thomas Amick
Chairman
of the Board of Directors and
interim
Chief Executive Officer
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March
31, 2010
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/s/ John G.
Cooper
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John
G. Cooper
Executive
Vice President and Chief Financial Officer
(Principal
Accounting Officer)
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March
31, 2010
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/s/ Herbert
McDade
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Herbert
McDade, Jr.
Director
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March
31, 2010
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/s/ Max
Link
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Max
Link, Ph.D.
Director
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March
31, 2010
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/s/ Antonio
Esteve
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Antonio
Esteve, Ph.D.
Director
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March
31, 2010
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/s/ Marvin E.
Rosenthale
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Marvin
E. Rosenthale, Ph.D.
Director
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March
31, 2010
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Exhibit
5.1
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Two
World Financial Center
New
York, NY 10281-1008
212.768.6700
212.768.6800
fax
www.sonnenschein.com
|
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March 30,
2010
Board of
Directors
Discovery
Laboratories, Inc.
2600
Kelly Road, Suite 100
Warrington,
Pennsylvania 18976-3622
Re: 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 350,000 shares (the “Shares”) of the
Company’s common stock, par value $0.001 per share (the “Common Stock”) to be
issued pursuant to the Company’s 401(k) Plan (the “Plan”).
In
connection with this opinion, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of (i) the Plan; (ii) the Company’s
Restated Certificate of Incorporation, as amended; (iii) the Company’s Amended
and Restated By-Laws; and (iv) resolutions adopted by the Company’s Board of
Directors on March 5, 2010. 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. We have also assumed
that there are no agreements or understandings between or among the Company and
any participants in the Plans that would expand, modify or otherwise affect the
terms of the Plans or the respective rights or obligations of the participants
thereunder, and that each award agreement setting forth the terms of each grant
of options or other awards under the Plans is consistent with the Plans and has
been duly authorized and validly executed and delivered by the parties
thereto.
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.
Based
upon the foregoing, and subject to the assumptions, qualifications and
limitations set forth herein, we are of the opinion that the Shares, when issued
and paid for in accordance with the terms of the Plan, will be validly issued,
fully paid and non-assessable.
No
opinion is expressed herein with respect to any laws other than Delaware
corporate law (which includes the Delaware General Corporation Law and
applicable provisions of the Delaware constitution, as well as reported judicial
opinions interpreting same). 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 affect 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.
We are
delivering this opinion to you at your request in accordance with the
requirements on Item 601(b)(5) of Regulation S-K under the Securities Act, and
not for any other purpose. We call your attention to the fact that
Ira L. Kotel, a member of this firm, is a holder of shares of Common
Stock.
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Very
truly yours,
/s/ Sonnenschein Nath
& Rosenthal LLP
Sonnenschein
Nath & Rosenthal LLP
|
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Brussels Chicago Dallas Kansas
City Los
Angeles New
York Phoenix St.
Louis
San
Francisco Short Hills,
N.J. Silicon
Valley Washington,
D.C. Zurich
|
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. 333-00000) pertaining to the Discovery Laboratories, Inc. 401(k) Plan of
our reports dated March 10, 2010, 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, 2009, 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
March 25,
2010