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October
16, 2009
Securities
and Exchange Commission
Division
of Corporate Finance
Mail Stop
4720
100 F
Street, N.E.
Washington,
D.C. 20549
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Attn:
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Mr.
Jeffrey Riedler, Assistant Director
Mr. Bryan Pitko,
Attorney
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Discovery Laboratories, Inc.
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Preliminary Proxy Statement
on Form PRE14A (filed October 9, 2009)
Dear
Messrs. Riedler and Pitko:
On behalf
of Discovery Laboratories, Inc. (the “Company”), we are
transmitting for electronic filing via EDGAR pursuant to the Securities Act of
1933, as amended, proposed revisions to the language of the above-referenced
proxy statement (the “Proxy Statement”), as
originally filed with the Securities and Exchange Commission (the “Commission”) on
October 9, 2009. If the revised language is acceptable to the staff
of the Division of Corporation Finance (the “Staff”), upon
receiving clearance from the Staff, we will file the amended language as part of
the definitive Proxy Statement on Form DEF14A. We are writing this
letter in response to the comments of the Staff contained in your letter to the
Company dated October 15, 2009 (the “Comment Letter”),
regarding the Proxy Statement. For the convenience of the Staff, we
have restated the contents of the Comment Letter and responded to the comments
in the order set forth therein.
Preliminary Proxy Statement
on Form PRE14A (SEC File No. 000-26422)
Comment
1. Please revise your disclosure to describe any plans, arrangements or
understandings relating to the issuance of any of the authorized but unissued
shares that would be available as a result of your proposed increase in
authorized shares of common stock from 180 million shares to 380 million
shares. If you have no such plans, arrangements or understandings,
please revise your disclosure to state so.
Response: In response to
Comment 1 of the Comment Letter, the Company has revised the Proxy Statement to
state that the Company currently has no plans, arrangements or understandings
relating to the issuance of any of the Company’s common stock by adding the
following language to the disclosure provided in Proposal 3 on page 14 of the
Proxy Statement:
Although,
as described above, we are actively engaged in discussions with certain
interested parties with respect to potential strategic alliances and potential
additional financings, there are presently no confirmed plans, arrangements or
understandings with respect to any specific transaction that would result in the
issuance of any of the shares of our Common Stock that would become
available for issuance if the Share Amendment were approved.
***
If the
proposed changes to the Proxy Statement are acceptable to the Staff, we expect
to file the definitive Proxy Statement on Form DEF14A on or after October 19,
2009, once the comments are cleared or the Staff indicates that we may do
so.
In
addition, please note that the Company has authorized us to inform you that it
acknowledges that it is responsible for the adequacy and accuracy of the
disclosure in the filings; that Staff comments or changes to the disclosure in
response to Staff comments in the filings do not foreclose the Commission from
taking any action with respect to the filing, and the Company may not assert
Staff comments as a defense in any proceeding initiated by the Commission or any
person under the federal securities law of the United States.
Please do
not hesitate to contact me ((212) 277-6686) or my colleague, Stuart J. van
Leenen ((212) 277-6590), should you wish to discuss any matter
further.
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Very
truly yours,
/s/ Ira L.
Kotel
Ira
L. Kotel
(212)
277-6686
koteli@dicksteinshapiro.com
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Copy
to:
David L.
Lopez, CPA, Esq.
Executive
Vice President, General Counsel
Discovery
Laboratories, Inc.
2600
Kelly Road, Suite 100
Warrington,
PA 18976