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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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DISCOVERY LABORATORIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-3171943
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
350 South Main Street, Suite 307, Doylestown, Pennsylvania 18901
(Address of Principal Executive Offices) (Zip Code)
Discovery Laboratories, Inc. 401(k) Plan
(Full title of the plan)
Robert J. Capetola, Ph.D., Chief Executive Officer
Discovery Laboratories, Inc.
350 South Main Street, Suite 307
Doylestown, Pennsylvania 18901
(Name and address of agent for service)
(215) 340-4699
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Ira L. Kotel, Esq.
Dickstein Shapiro Morin & Oshinsky LLP
1177 Avenue of the Americas, 41st Floor
New York, New York 10036
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered (1) Registered(1) Per Share(3) Price(3) Fee(3)
- -------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value 150,000 $6.965 $1,044,750 $84.52
- -------------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this registration
statement also covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
(2) Pursuant to Rule 416 (a) under the Securities Act of 1933, 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 Discovery Laboratories,
Inc., 401(k) Plan by reason of any stock dividend, stock split, recapitalization
or other similar transaction.
(3) Pursuant to Rule 457 (c) and (h) of the Securities Act of 1933, the proposed
maximum offering price per share of the shares of common stock being offered in
this Registration Statement is estimated solely for the purpose of determining
the registration fee the registration fee was completed on the basis of the
average of the high and low prices of the registrant's Common Stock on the
NASDAQ SmallCap Market on November 11, 2003.
PROPOSED SALE TO TAKE PLACE AS SOON AFTER THE EFFECTIVE DATE OF THE REGISTRATION
STATEMENT AS SHARES OF COMMON STOCK ISSUED UNDER THE PLAN VEST IN ACCORDANCE
WITH THE TERMS AND CONDITIONS OF THE PLAN.
EXPLANATORY NOTES
This registration statement is being filed by Discovery Laboratories, Inc. (the
"Company" or the "Registrant"), and relates to 150,000 shares of the Company's
Common Stock, par value $0.001 per share (the "Common Stock"), that may be
issued, from time to time, by the Company under the Company's 401(k) Plan (the
"Plan") pursuant to discretionary matching contributions by the Company of
Common Stock to employees participating in the Plan. The information called for
in Part I of Form S-8 is not being prepared with or included in this Form S-8
(by incorporation by reference or otherwise) in accordance with the rules and
regulations of the Securities and Exchange Commission ("Commission").
The foregoing capitalized terms that are not otherwise defined herein shall have
the meanings ascribed to such terms in the Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed with the Commission by the Registrant,
are incorporated by reference in this Registration Statement:
1. The Registrant's Annual Report on Form 10-K filed with the Commission
on March 31, 2003, for the fiscal year ended December 31, 2002, as amended
on Form 10-K/A filed with the Commission on April 30, 2003, including any
documents or portions thereof incorporated by reference therein;
2. The Registrant's Quarterly Reports on Form 10-Q filed with the
Commission on: (i) May 15, 2003, for the quarterly period ending March 31,
2003; and (ii) August 14, 2003, for the quarterly period ending June 30,
2003;
3. The Registrant's Definitive Proxy Statement dated May 30, 2003, for the
Annual Meeting of Shareholders held on July 15, 2003, including any
documents or portions thereof incorporated by reference therein;
4. The Registrant's Current Reports on Form 8-K filed with the Commission
on: (i) February 26, 2003; (ii) May 21, 2003; (iii) June 5, 2003; (iv)
June 20, 2003; (v) August 13, 2003; and (vi) October 3, 2003; and
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5. The Registrant's description of its capital stock contained in its
Registration Statement on Form 8-A filed with the Commission on July 13,
1995.
All documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, 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.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The validity of the securities being registered hereunder is being passed upon
for the Registrant by Dickstein Shapiro Morin & Oshinsky LLP. Attorneys of
Dickstein Shapiro Morin & Oshinsky LLP beneficially own shares of the Common
Stock and warrants exercisable for shares of Common Stock with an aggregate
value in excess of $50,000.
Item 6. Indemnification of Directors and Officers
Article Eighth of the Registrant's Certificate of Incorporation limits the
liability of directors to the maximum extent permitted by Delaware law. Delaware
law provides that directors of a corporation will not be personally liable for
monetary damages for breach of their fiduciary duties as directors, except for
liability for (i) any breach of their duty of loyalty to the corporation or its
stockholders, (ii) acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) unlawful payments of
dividends or unlawful stock repurchases or redemptions as provided in Section
174 of the Delaware General Corporation Law or (iv) any transaction from which
the director derives an improper personal benefit. The Registrant's By-Laws
provide that the Registrant shall indemnify its directors and officers, the
directors and officers of any subsidiary of the Registrant and any other
individuals acting as directors or officers of any other corporation at the
request of the Registrant, to the fullest extent permitted by law.
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The Registrant has entered into indemnification agreements with certain of its
executive officers containing provisions that may require the Registrant, among
other things, to indemnify such officers against liabilities that may arise by
reason of their status or service as officers other than liabilities arising
from willful misconduct of a culpable nature and to advance certain expenses
incurred as a result of any proceeding against them as to which they could be
indemnified. Registrant has obtained directors' and officers' liability
insurance. These provisions in the Certificate of Incorporation and the By-Laws
do not eliminate the officers' and directors' fiduciary duty, and in appropriate
circumstances, equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under Delaware law. In addition, each
officer and director will continue to be subject to liability for breach of the
officer's or director's duty of loyalty to the Registrant for acts or omissions
not in good faith or involving intentional misconduct, for knowing violations of
law, for actions leading to improper personal benefit to the officer or director
and for payment of dividends or approval of stock repurchases or redemptions
that are unlawful under Delaware law. The provisions also do not affect an
officer's or director's responsibilities under any other law, such as the
federal securities laws or state or federal environmental laws.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits.
Number Description
- ------ -----------
5.1 Opinion of Dickstein Shapiro Morin & Oshinsky LLP, regarding
the validity of the securities being registered.
23.1 Consent of Dickstein Shapiro Morin & Oshinsky LLP (included in
its opinion filed as Exhibit 5.1 hereto).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
23.3 Consent of Eisner LLP independent auditors.
24.1 Power of Attorney (included on signature pages hereto).
Item 9. Undertakings.
We, the undersigned Registrant hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to the Registrant Statement to:
(i) To Include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) that individually or in the aggregate
represent a fundamental change in the information set forth in the
Registration Statement; and
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(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(4) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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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 Doylestown, Commonwealth of Pennsylvania on this 12th
day of November, 2003.
DISCOVERY LABORATORIES, INC.
By: /s/ Robert J. Capetola
-------------------------------------
Name: Robert J. Capetola, Ph.D.
Title: President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
under the heading "Signature" constitutes and appoints Robert J. Capetola, Ph.D.
and David L. Lopez, CPA, Esq. his true and lawful attorney-in-fact and agent
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities to sign any or all amendments to this
Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the United States Securities and
Exchange Commission, 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 for
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, each acting alone, or his
substitute or substitutes, 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 and on the
dates indicated.
Signature Name & Title Date
- --------- ------------ ----
/s/ Robert J. Capetola Robert J. Capetola, Ph.D. November 12, 2003
- ------------------------ President, Chief Executive
Officer and Director
(Principal Executive Officer)
/s/ John G. Cooper John G. Cooper November 12, 2003
- ------------------------ Senior Vice President and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
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/s/ Herbert McDade Herbert McDade, Jr. November 12, 2003
- ------------------------ Chairman of the Board of
Directors
/s/ Max Link Max Link, Ph.D. November 12, 2003
- ------------------------ Director
Antonio Esteve, Ph.D. November 12, 2003
- ------------------------ Director
/s/ Marvin E. Rosenthale Marvin E. Rosenthale, Ph.D. November 12, 2003
- ------------------------ Director
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Discovery Laboratories, Inc.
Form S-8
Index to Exhibits
Exhibit No. Description
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5.1 Opinion of Dickstein Shapiro Morin & Oshinsky LLP, legal
counsel.
23.1 Consent of Dickstein Shapiro Morin & Oshinsky LLP, legal
counsel (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, independent auditors.
23.3 Consent of Eisner LLP independent auditors.
24.1 Powers of Attorney (included in Signature Pages to this
Registration Statement on Form S-3).
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Exhibit 5.1
[Dickstein Shapiro Morin & Oshinsky LLP Letterhead]
November 12, 2003
Board of Directors
Discovery Laboratories, Inc.
350 South Main Street, Suite 307
Doylestown, Pennsylvania 18901
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 (the "Securities Act"), for
the registration under the Securities Act of up to 150,000 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
employees that participate in the Company's 401(k) Plan (the "Plan").
Capitalized terms used and not defined in this opinion have the meanings
ascribed to them in the Registration Statement. You have requested that we
furnish our opinion as to matters hereinafter set forth.
In rendering this opinion, we have relied upon, among other things,
our examination of certain records of the Company, including, without
limitation, the Company's Restated Certificate of Incorporation, the Company's
Bylaws, as amended, and resolutions of the Board of Directors. We have also
examined certificates of the Company's officers and of public officials and have
reviewed such questions of law and made such other inquiries, as we have deemed
necessary or appropriate for the purpose of rendering this opinion. 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.
In addition, without any independent investigation or verification,
we have assumed (i) the genuineness of all signatures, (ii) the authenticity of
all documents submitted to us as originals and the conformity with the original
documents of all documents submitted to us as certified, conformed or
photostatic copies, (iii) the authority of all persons signing any document
other than the officers of the Company, where applicable, signing in their
capacity as such, (iv) the enforceability of all the documents we have reviewed
in accordance with their respective terms against the parties thereto, and (v)
the truth and accuracy of all matters of fact set forth in all certificates and
other instruments furnished to us.
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Based upon the foregoing, and subject to the limitations,
qualifications and assumptions 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 nonassessable.
No opinion is expressed herein with respect to any laws other than
the General Corporation Law and the Constitution 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. 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 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 may not be relied
upon by any other person or 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 Morin & Oshinsky LLP
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Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 33-xxxxx) to be filed on or about November 7, 2003, pertaining to
Discovery Laboratories, Inc. 401(k) Plan of our report dated February 26, 2003,
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,
2002, filed with the Securities and Exchange Commission.
/s/ Ernst & Young, LLP
Philadelphia, Pennsylvania
November 7, 2003
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Exhibit 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement on
Form S-8 to be filed on or about November 10, 2003 pertaining to the Discovery
Laboratories, Inc. 401(k) Plan of our report dated February 25, 2000, with
respect to our audits of the consolidated financial statements for the period
from May 18, 1993 (inception) through December 31, 1999, not presented
separately, included in Discovery Laboratories, Inc.'s annual report on Form
10-K and Form 10-K/A for the year ended December 31, 2002, filed with the
Securities and Exchange Commission.
/s/ Eisner LLP
New York, New York
November 7, 2003
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