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
October
15, 2010
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.
On
October 15, 2010, the Board of Directors (“Board”) of Discovery Laboratories,
Inc. (the “Company”) appointed W. Thomas Amick, 67, as its full-time
Chief Executive Officer effective October 18, 2010.
The
Company and Mr. Amick were previously party to a non-employee consulting
agreement dated as of August 13, 2009 with respect to Mr. Amick's previous role
as Interim Chief Executive Officer of the Company. As of October 18,
2010, the Company and Mr. Amick entered into an employment agreement to reflect
Mr. Amick's role with the Company. Under the terms of his
agreement, Mr. Amick will receive: (i) a salary of at least $400,000 per year,
subject to a potential annual increase by the compensation committee of the
Board and (ii) a discretionary bonus opportunity in the form of either cash
or equity, or both, subject to the discretion of the compensation committee of
the Board. In connection with his appointment, Mr. Amick was granted 400,000
shares of restricted Common Stock, par value $.001 per share, of the
Company (the “RSAs”) on October 18, 2010. The RSAs vest on the
earliest to occur of the following events: (i) the second anniversary of the
date of grant; (ii) the date of issuance by the U. S. Food and Drug
Administration of a marketing approval with respect to the Company’s New Drug
Application (NDA) for Surfaxin® for the
prevention of respiratory distress syndrome (RDS) in premature infants; or (iii)
the effective date of a strategic alliance, collaboration agreement or other
similar arrangement between the Company and one or more third parties providing
for the support for the development and/or commercialization of one or more of
the Company’s lead research and development programs – Surfaxin, Surfaxin LS™ or
Aerosurf®
(whether a transaction meets this requirement shall be determined by the
Board in its sole discretion). The RSAs will vest only if Mr. Amick
is actively providing services to the Company on the day of
vesting.
Under the
the terms of the agreement, if Mr. Amick’s employment is terminated by the
Company without “cause” or by Mr. Amick for “good reason” (both as defined in
the employment agreement), he will be entitled to (a) the acceleration and
vesting of all stock and options then held by Mr. Amick, (b) a lump-sum payment
equal to the product of (i) 1.5 and (ii) the sum of (x) Mr. Amick’s then-current
base salary and (y) the largest annual cash bonus received by Mr. Amick in the
three fiscal years immediately preceding the date of termination (the “Highest
Annual Bonus”), (c) a pro-rata bonus payable in a lump sum equal to the Highest
Annual Bonus multiplied by a fraction the numerator of which is the number of
days the executive was employed with the Company in the current fiscal year and
the denominator of which is 365, (d) continuation of health benefits (or their
equivalent) for Mr. Amick and the members of his family who were participating
in the Company’s health and welfare plans at the time of termination for 18
months after the date of termination, reduced to the extent that a subsequent
employer provides the executive with substantially similar coverage (on a
benefit-by-benefit basis). and (e) outplacement counseling assistance in the
form of reimbursement for reasonable expenses incurred by the executive within
12 months following the date of termination, up to a maximum amount of
$40,000.
In
addition, following a change in control of the Company, if his employment is
terminated by the Company without “cause” or by Mr. Amick for “good reason”
(both as defined in the employment agreement), he will be entitled to (a) the
acceleration and vesting of all stock and options then held by Mr.
Amick, (b) a lump sum payment equal to the product of (i) 2.5 and (ii) the sum
of (x) Mr. Amick’s then current base salary and (y) the Highest Annual Bonus,
(c) a pro-rata bonus payable in a lump sum equal to the Highest Annual Bonus
multiplied by a fraction the numerator of which is the number of days the
executive was employed with the Company in the current fiscal year and the
denominator of which is 365, (d) continuation of health benefits (or their
equivalent) for Mr. Amick and the members of his family who were participating
in the Company’s health and welfare plans at the time of termination for 18
months after the date of termination, reduced to the extent that a subsequent
employer provides the executive with substantially similar coverage (on a
benefit-by-benefit basis), and (e) outplacement counseling assistance in the
form of reimbursement for reasonable expenses incurred by the executive within
12 months following the date of termination, up to a maximum amount of
$40,000.
The
agreement also includes a 12-month post-employment noncompetition agreement,
confidentiality and assignment of intellectual property provisions and an
excise tax gross-up feature.
2
Mr. Amick most recently served as
Interim Chief Executive Officer of the Company since August of 2009 and as
Chairman of the Board of the Company since March 2007. Mr. Amick will
continue to serve as Chairman of the Board. Prior to his affiliation
with the Company, Mr. Amick served as a senior executive with Johnson
& Johnson (J&J). As Vice President of the Ortho Biotech Oncology
Franchise, he was instrumental in the launch of Procrit® (epoetin alfa) and
building the oncology franchise into a multi-billion dollar
operation. He then held the positions of President of Janssen-Ortho,
Inc., managing the entire J&J pharmaceutical and biotechnology portfolio for
Canada, and President of Ortho Biotech Europe. Mr. Amick also served
as an executive with J&J Development Corporation, the venture capital
division of J&J comprised of experts and leaders in health care responsible
for strategic investments in life science companies. Prior to
becoming Discovery Labs’ Chief Executive Officer, Mr. Amick was Chief Executive
Officer of Aldagen Inc., a biotechnology company developing regenerative cell
therapies. Mr. Amick has served on Discovery Labs’ Board since 2004,
is a member of the Board of a private biotechnology company and also serves as
an advisor to two well-regarded private equity firms focused on the
biopharmaceutical industry.
The
description of Mr. Amick’s RSA grant is qualified in its entirety by
reference to the text of the Form of Restricted Stock Award Agreement, attached
as Exhibit 10.1 to the Company’s current report on Form 8-K filed on October 1,
2010, respectively.
On
October 15, 2010, the Company issued a press release regarding the appointment
of Mr. Amick as its Chief Executive Officer, a copy of which is attached hereto
as Exhibit 99.1 and incorporated herein by reference.
Item
9.01. Financial
Statements and Exhibits.
| (d) | Exhibits | |
| 10.1 | Form of Restricted Stock Award Agreement (incorporated by reference to the Company’s Current Report on Form 8-K filed on October 1, 2010; File No. 000-26422). | |
|
99.1
|
Press
Release dated October 15, 2010.
|
3
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/ John G. Cooper | |
| Name: | John G. Cooper | ||
| Title: | President, Chief Financial Officer and Treasures | ||
Date: October
21, 2010
Discovery
Labs Appoints W. Thomas Amick as Chief Executive Officer
Company
Leadership Solidified with Respected Biopharmaceutical Industry
Veteran
Warrington, PA, October 15,
2010 — Discovery Laboratories, Inc. (Nasdaq: DSCO), a biotechnology
company developing its novel synthetic surfactant and aerosol technologies for
respiratory diseases, has today announced that W. Thomas
Amick will become its full time Chief Executive Officer (CEO). Mr. Amick has
been serving as Discovery’s interim CEO since August of 2009 and has been
Chairman of the Board since March 2007. He will continue to serve as
Chairman of the Board.
Bruce A.
Peacock, a member of Discovery Labs’ Board of Directors, commented, “The
appointment of Tom as Discovery Labs’ CEO is a timely and important step in
securing the leadership and management structure of the Company as we work with
the FDA in seeking potential approval in 2011 of Surfaxin®, and
advance our respiratory pipeline. Tom’s extensive experience running
major biopharmaceutical businesses, ranging from development stage through
product commercialization, will prove invaluable as Discovery pursues its
strategy of building a significant respiratory care company based on its
promising surfactant and aerosolization technologies.”
W. Thomas
Amick, Chairman of the Board and Chief Executive Officer of Discovery Labs
commented, “Since becoming interim CEO, I’ve had the opportunity for an in-depth
assessment of the Company’s technology platforms and I fully appreciate the
significant potential of our synthetic surfactant to address the treatment of
respiratory disease. Our surfactant technology has already achieved an important
validation through the conduct of successful Phase 3 clinical trials utilizing
Surfaxin to address premature infants with respiratory distress syndrome and we
intend to leverage this in developing our next generation candidates, Surfaxin
LS™ and Aerosurf®. I
am excited to lead Discovery’s efforts to develop these important products and I
am dedicated to furthering the Company’s promise.”
Mr. Amick
is a respected industry veteran with more than 30 years of pharmaceutical and
biotechnology experience as a senior executive with Johnson & Johnson
(J&J). As Vice President of the Ortho Biotech Oncology Franchise, he was
instrumental in the launch of Procrit® (epoetin
alfa) and building the oncology franchise into a multi-billion dollar
operation. He then held the positions of President of Janssen-Ortho,
Inc., managing the entire J&J pharmaceutical and biotechnology portfolio for
Canada, and President of Ortho Biotech Europe. Mr. Amick also served
as an executive with J&J Development Corporation, the venture capital
division of J&J comprised of experts and leaders in health care responsible
for strategic investments in life science companies. Prior to
becoming Discovery Labs’ CEO, Mr. Amick was CEO of Aldagen Inc., a biotechnology
company developing regenerative cell therapies. Mr. Amick has served
on Discovery Labs’ Board since 2004, is a member of the board of directors of a
private biotechnology company and also serves as an advisor to two well-regarded
private equity firms focused on the biopharmaceutical industry.
About
Discovery Labs
Discovery
Laboratories, Inc. is a biotechnology company developing KL4 surfactant therapies for
respiratory diseases. Surfactants are produced naturally in the lungs and are
essential for breathing. Discovery Labs’ novel proprietary KL4 surfactant technology produces
a synthetic, peptide-containing surfactant that is structurally similar to
pulmonary surfactant and is being developed in liquid, aerosol or lyophilized
formulations. In addition, Discovery Labs’ proprietary capillary aerosolization
technology produces a dense aerosol, with a defined particle size that is
capable of potentially delivering aerosolized KL4 surfactant to the deep lung
without the complications currently associated with liquid surfactant
administration. Discovery Labs believes that its proprietary technology platform
makes it possible, for the first time, to develop a significant pipeline of
surfactant products to address a variety of respiratory diseases for which there
frequently are few or no approved therapies. For more information, please visit
our website at www.Discoverylabs.com.
Forward
Looking Statements
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, including with respect to the
potential approval in the United States of Surfaxin for the prevention of RDS in
premature infants and the potential of Discovery Labs’ other KL4 surfactant
technologies to advance and meaningfully impact the standard of respiratory
critical care, are subject to certain risks and uncertainties that could cause
actual results to differ materially from the statements
made. Examples of such risks and uncertainties are 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.
Contact
Information:
Media
relations:
Michelle
Linn, Linnden Communications
508-362-3087
Investor
relations:
John G.
Cooper, President and Chief Financial Officer
215-488-9490