As filed
with the Securities and Exchange Commission on December 23, 2008
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)
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.
Dickstein
Shapiro LLP
1177
Avenue of the Americas, 47th Floor
New York,
New York 10036-2714
(212)
277-6500
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.
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Large
accelerated filer o
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Accelerated
filer x
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Non-accelerated
filer o
(Do not check if a smaller reporting company
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Smaller
reporting company o
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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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$1.17
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$409,500
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$16.09
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(1)
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Pursuant
to Rule 416 promulgated under the Securities Act of 1933, as amended, 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
401(k) Plan by reason of any stock splits, stock dividends or similar
transactions.
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(2)
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Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(c) 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 December 16,
2008.
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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”). 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) and September 28,
2006 (File No. 333-137643). Pursuant to General Instruction E to Form
S-8, the contents of such registration statement, including all exhibits thereto
as applicable, are incorporated herein by reference.
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
8. Exhibits.
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Exhibit No.
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Description
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Method of Filing
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5.1
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Opinion
of Dickstein Shapiro LLP, legal counsel.*
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Filed
herewith.
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23.1
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Consent
of Dickstein Shapiro LLP (included in its opinion filed as Exhibit 5.1 to
this registration statement).
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Filed
herewith.
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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 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 23 day of December, 2008.
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DISCOVERY
LABORATORIES, INC.
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(Registrant)
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By:
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/s/
Robert J. Capetola, Ph.D.
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Robert
J. Capetola, Ph.D.
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President
and Chief Executive
Officer
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POWER
OF ATTORNEY
We, the
undersigned officers and directors of Discovery Laboratories, Inc., and each of
us, do hereby constitute and appoint each of Robert J. Capetola, Ph.D., 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 stickers and 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/ Robert J. Capetola
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Robert
J. Capetola, Ph.D.
President,
Chief Executive Officer and Director
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December
23, 2008
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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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December
23, 2008
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/s/ Herbert McDade
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Herbert
McDade, Jr.
Chairman
of the Board of Directors
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December
23, 2008
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/s/ W. Thomas Amick
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W.
Thomas Amick
Director
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December
23, 2008
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/s/ Max Link
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Max
Link, Ph.D.
Director
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December
23, 2008
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/s/ Antonio Esteve
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Antonio
Esteve, Ph.D.
Director
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December
23, 2008
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/s/ Marvin E. Rosenthale
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Marvin
E. Rosenthale, Ph.D.
Director
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December
23,
2008
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Exhibit
23.1
December
23, 2008
Board of
Directors
Discovery
Laboratories, Inc.
2600
Kelly Road, Suite 100
Warrington,
Pennsylvania 18976-3622
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 as matching contributions by the Company to the accounts of such of the
Company’s employees that participate in the Company’s 401(k) Plan (the “Plan”). You have
requested that we furnish our opinion as to matters hereinafter set
forth.
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 December 11, 2008. 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.
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 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
non-assessable.
No
opinion is expressed herein with respect to any laws other than the General
Corporation Law 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.
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.
The
foregoing opinion is delivered to the Board of Directors of the Company in
connection with the Registration Statement, and not for any other
purpose.
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Very
truly yours,
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/s/
Dickstein Shapiro LLP
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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-xxxxxx) pertaining to the Employees' Savings Plan of Discovery
Laboratories, Inc. of our reports dated March 10, 2008, with respect to the
consolidated financial statements and the effectiveness of internal control over
financial reporting of Discovery Laboratories, Inc. incorporated by reference in
its Annual Report (Form 10-K) for the year ended December 31, 2007, filed with
the Securities and Exchange Commission.
/s/ Ernst
& Young LLP
Philadelphia,
Pennsylvania
December
17, 2008