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)
Delaware 94-3171943
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
350 South Main Street, Suite 307 18901
Doylestown, Pennsylvania (Zip Code)
(Address of Principal Executive Offices)
Discovery Laboratories, Inc. 1998 Stock Incentive Plan
(Full title of the plan)
Robert 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:
Steven A. Fishman
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Calculation of Registration Fee
========================================= ================ ===================== ======================== =====================
Proposed maximum Proposed maximum
Amount to be offering price per aggregate offering Amount of
Title of securities to be registered registered (1) share(2) price(1) registration fee(2)
- ---------------------------------------------------------------------------------------------------------------------------------
Shares of Common Stock 794,935 7 15/16 $6,309,796.56 $1,655.79
========================================= ================ ===================== ======================== =====================
(1) Represents additional shares of Common Stock issuable under the 1998
Stock Incentive Plan, as a result of the amendment of such plan to
increase the number of shares issuable under such plan from 1,406,024 to
2,200,959. This Registration Statement shall also cover any additional
shares of Common Stock which become issuable under the Discovery
Laboratories, Inc. 1998 Stock Incentive Plan by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the Registrant's receipt of consideration, which results
in an increase in the number of the outstanding shares of Registrant's
Common Stock.
(2) Pursuant to paragraphs (c) and (h) of Rule 457 of the Securities Act of
1933, as amended (the "Securities Act"), the proposed maximum offering
price per share of such shares of beneficial interest is estimated solely
for the purpose of determining the registration fee and is based upon the
average of the high and low prices per share of the Registrant's shares
of beneficial interest reported on the Nasdaq Small Cap Stock Market on
March 22, 2000.
915309.3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in this
Item will be sent or given to each participant who has been granted options
("Options") for the purchase of shares of Common Stock (the "Shares") of
Discovery Laboratories, Inc., a Delaware corporation (the "Registrant") under
the Discovery Laboratories, Inc. 1998 Stock Incentive Plan (the "Plan"), and, in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission"), are not being filed with, or included in, this
Registration Statement on Form S-8 (the "Registration Statement").
Item 2. Registration Information and Employee Plan Annual Information
The documents containing the information specified in this
Item will be sent or given to employees who have been granted Options under the
Plan and, in accordance with the rules and regulations of the Commission, are
not being filed with, or included in, this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents, which have been heretofore filed with
the Commission by the Registrant, are incorporated by reference in this
Registration Statement:
1. The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1998, as amended, including any documents or portions thereof
incorporated by reference therein;
2. The Registrant's Quarterly Report on Form 10-QSB for the fiscal
quarter ended March 31, 1999, as amended, June 30, 1999 and September 30, 1999;
3. The Registrant's Definitive Proxy Statement dated May 28, 1999 for
the Annual Meeting of Shareholders held on June 28, 1999, including any
documents or portions thereof incorporated by reference therein;
4. The Registrant's Form 8-K's filed with the Commission on August 9,
1999, October 15, 1999 and February 8, 2000.
5. The description of the Common Stock contained in the Registrant's
Registration Statement on Form S-8 filed with the Commission on July 24, 1998.
6. All other documents filed by the Registrant with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of this Prospectus and prior to the termination of this offering.
915309.3
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
Not applicable.
Item 6. Indemnification of Directors and Officers
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 Bylaws provide that the Registrant shall indemnify its
directors and may indemnify its officers, employees and other agents to the
fullest extent permitted by law.
The Registrant has entered into separate indemnification agreements
with each of its directors and officers. These agreements require the
Registrant, among other things, to indemnify such director or officer against
expenses (including attorney's fees), judgments, fines and settlements
(collectively, "Liabilities") paid by such individual in connection with any
action, suit or proceeding arising out of such individual's status or service as
a director or officer of the Registrant (other than Liabilities arising from
willful misconduct or conduct that is knowingly fraudulent or deliberately
dishonest) and to advance expenses incurred by such individual in connection
with any proceeding against such individual with respect to which such
individual may be entitled to indemnification by the Registrant.
Item 8. Exhibits.
4.1 Discovery Laboratories, Inc. 1998 Stock Incentive Plan, as amended.
5.1 Opinion of Battle Fowler LLP regarding the legality of the securities
being registered.
915309.3
-2-
23.1 Consent of Battle Fowler LLP (Included in Exhibit 5.1).
23.2 Consent of Richard A. Eisner & Company, LLP.
Item 9. Undertakings.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) (ss.230.424(b) of this chapter) if, in the
aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above 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 Section 15(d)
of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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 hereby which remain
unsold at the termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act that is incorporated by reference in this 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.
915309.3
-3-
(c) Insofar as indemnification for liabilities arising under
the Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by 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 Securities Act and will be governed by the final
adjudication of such issue.
915309.3
-4-
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 New York, State of New York, on this 21st day of
March, 2000.
DISCOVERY LABORATORIES, INC.
By: /s/ Robert Capetola, Ph.D.
--------------------------------
Robert Capetola, Ph.D.
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 Joseph F.
Hughes, or John G. Sharkey. 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 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 Title Date
--------- ----- ----
/s/ Robert Capetola, Ph.D.
- ---------------------------------------- President and Chief Executive March 21, 2000
Robert Capetola, Ph.D. Officer and Director
(Principal Executive Officer)
/s/ Evan Myrianthopoulos Vice President of Finance
- ---------------------------------------- (Principal Financial and March 21, 2000
Evan Myrianthopoulos Accounting Officer)
/s/ Steve H. Kanzer, C.P.A., Esq. Chairman of the Board of Directors February 18, 2000
- ----------------------------------------
Steve H. Kanzer, C.P.A., Esq.
915309.3
-5-
Signature Title Date
--------- ----- ----
/s/ Max Link, Ph.D. Director
- ---------------------------------------- February 25, 2000
Max Link, Ph.D.
/s/ Herbert McDade
- ---------------------------------------- Director March 21, 2000
Herbert McDade
/s/ David Naveh, Ph.D. Director
- ---------------------------------------- February 23, 2000
David Naveh, Ph.D.
/s/ Richard Power
- ---------------------------------------- Director February 23, 2000
Richard Power
/s/ Mark Rogers, M.D. Director
- ---------------------------------------- March 21, 2000
Mark Rogers, M.D.
/s/ Marvin Rosenthale, Ph.D. Director
- ---------------------------------------- March 21, 2000
Marvin Rosenthale, Ph.D.
/s/ Richard Sperber
- ---------------------------------------- Director March 21, 2000
Richard Sperber
915309.3
-6-
Exhibit 5.1
(212) 856-7000
(212) 339-9150
March 31, 2000
Board of Directors
Discovery Laboratories, Inc.
350 South Main Street, Suite 307
Doylestown, Pennsylvania 18901
Re: Discovery Laboratories, Inc. 1998 Stock
Incentive 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
registration statement on Form S-8, and any amendments thereto (the
"Registration Statement"), as filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Securities Act"), for the
registration under the Securities Act of up to 794,935 shares (the "Shares") of
the Company's common stock, par value $0.001 per share (the "Common Stock") (the
"Shares") to be issued pursuant to the 1998 Stock Incentive 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 such records of the Company, including without limitation, the
Company's Certificate of Incorporation as amended, and the Company's Bylaws, as
amended, resolutions of the Board of Directors and certificates of its officers
and of public officials as we have deemed necessary for the purpose of the
opinion expressed below.
In addition, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals, and the conformity
to original documents of all documents
915309.3
submitted to us as certified or photostatic copies. As to various questions of
fact material to this opinion, we have relied, to the extent we deem reasonably
appropriate, upon representations or certificates of officers or directors of
the Company and upon documents, records and instruments furnished to us by the
Company, without independently checking or verifying the accuracy of such
documents, records and instruments furnished to us by the Company.
We do not express any opinion as to the laws of states or jurisdictions
other than the laws of the State of New York, the Delaware General Corporation
Law and the federal law of the United States. 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.
Based on and subject to the foregoing, 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 duly and validly
authorized and issued and will be fully paid and nonassessable.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit 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 of 1933 or the rules and
regulations promulgated thereunder by the Securities and Exchange Commission.
Very truly yours,
Battle Fowler LLP
915309.3
-2-
Exhibit 23.2
Independent Auditors' Consent
-----------------------------
We consent to the incorporation by reference in the
Registration Statement on Form S-8 pertaining to Discovery Laboratories, Inc.
1998 Stock Incentive Plan of our report dated February 24, 1999
with respect to the last paragraph of Note A, April 7, 1999) on our audit of the
financial statements as of and for the year ended December 31, 1998 which report
is included in the annual report on Form 10-KSB for the year ended December
31, 1998, as amended.
/s/ Richard A. Eisner & Company, LLP
New York, New York
March 23, 2000
915309.3