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
September
3, 2009
Date of
Report (Date of earliest event reported)
Discovery
Laboratories, Inc.
(Exact
name of registrant as specified in its charter)
|
Delaware
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000-26422
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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
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
|
o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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|
o
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Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
5.02. Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
On
September 3, 2009, the Board of Directors (the “Board”) of Discovery
Laboratories, Inc. (the “Company”) approved the execution and delivery of a
non-employee executive agreement (the “CEO Agreement”) with Mr. W. Thomas Amick,
Chairman of the Board of the Company. Effective as of August 13,
2009, Mr. Amick assumed the responsibilities of the Chief Executive Officer on
an interim basis following the resignation of Robert J. Capetola, Ph.D. as Chief
Executive Officer of the Company. Mr. Amick has agreed to devote, on
a part-time basis, such of his business time, attention and efforts as
reasonably necessary to the proper performance of his duties, which the Company
currently anticipates will involve on average two days per
week. Under the CEO Agreement, Mr. Amick will be paid at a per diem
rate of $3,000, payable in arrears at the end of each calendar
month. In addition, on September 3, 2009, in accordance with the CEO
Agreement, the Compensation Committee of the Board authorized a grant of options
to Mr. Amick to purchase 60,000 shares of common stock of the Company under the
Company’s 2007 Long-Term Incentive Plan (the “Plan”) at an exercise price
of $0.49 per share, the closing market price of the Company’s common
stock on the date of grant. The option grant, in part, replaces an
automatic grant of options to purchase 30,000 shares of common stock of the
Company that Mr. Amick would have received under the Plan as a non-executive
Chairman of the Board. The options will vest in full on the first
anniversary date of the grant. The foregoing summary of the CEO
Agreement is qualified in its entirety by the full text of the CEO Agreement,
which is attached to this Current Report on Form 8-K as Exhibit 10.1, and is
incorporated herein by reference.
Mr.
Amick has served as
a member of the Company’s Board since September 2004 and as its Chairman of the
Board since March 2007. Mr. Amick currently serves as Chairman of the
Board for Argolyn Bioscience and Chairman and CEO of Aldagen, Inc. In
2004, Mr. Amick retired from a distinguished 30-year career with Johnson &
Johnson, having most recently served as Vice President, Business Development at
Johnson & Johnson Development Corporation from 2003 to 2004, and President
of Ortho Biotech Europe from 2001 to 2003. He also served as
President of Janssen-Ortho, Inc., managing the entire Johnson & Johnson
pharmaceutical and biotechnology portfolio for Canada, as Vice President of the
Oncology Franchise of Ortho Biotech, and has held various other sales and
executive positions throughout his career. Mr. Amick is a member of
the Advisory Boards for Quaker BioVentures and Intersouth Partners and a member
of the boards of directors of several private biotechnology
companies. He holds a B.A. degree in business administration from
Elon College and has attended executive courses at the Kellogg School of
Management, Harvard Business School and Darden School of Business.
2
As of
August 13, 2009 the, Company entered into a separation agreement and general
release (the “Separation Agreement”) with Dr. Capetola providing for (i) an
upfront severance payment of $250,000, (ii) periodic payments in an amount equal
to his base salary (calculated at a rate of $490,000 per annum), in accordance
with stated payroll practices and less required withholdings, with such payment
to end the earlier of (x) May 3, 2010 or (y) the date, if ever, a Corporate
Transaction event takes place (as such term is defined in the Separation
Agreement), and (iii) the accelerated vesting of all outstanding restricted
shares and options which shall remain exercisable to the end of their stated
terms. In addition, Dr. Capetola will be entitled to the continuation
of medical and insurance coverage for a period of 24 or 27 months, depending
upon circumstances. In addition, the Separation
Agreement provides that upon the occurrence of a Corporate Transaction prior to
May 4, 2010, Dr. Capetola will receive a payment of up to $1,580,000 or, if any
such Corporate Transaction also constitutes a Change of Control (as such term is
defined in the Separation Agreement), a payment of up to $1,777,500; provided, however, that in each
case any such payment shall be reduced by the sum of the amounts that may then
have been already paid under clauses (i) and (ii) of this
paragraph. A “Corporate Transaction” is defined in the Separation
Agreement as (1) one or more corporate partnering or strategic alliance
transactions, Business Combinations or public or private financings that (A) are
completed during the Severance Period (as defined in the Separation Agreement)
and (B) result in cash proceeds (net of transaction costs) to the Company of at
least $20 million received during the Severance Period or within 90 calendar
days thereafter, or (2) an acquisition of the Company, by business combination
or other similar transaction, that occurs during the Severance Period and the
consideration paid to stockholders of the Company, in cash or securities, is at
least $20 million. For this purpose, net proceeds shall be calculated
without taking into account any amounts received by the Company as reimbursement
for costs of development and research activities to be performed in connection
with any such transaction. The foregoing summary of the Separation
Agreement is qualified in its entirety by the full text of the Separation
Agreement, which is attached to this Current Report on Form 8-K as Exhibit 10.2, and is
incorporated herein by reference.
On
September 3, 2009, the Board approved an amendment (the “Amendment”) to the
vesting provisions of restricted shares of the Company’s common stock, par value
$0.001 per share, (the “RSAs”) that were awarded as of October 31, 2007 to
certain key employees of the Company, including the individuals set forth below
(“Grantees”), as replacement grants to shares of phantom stock previously
granted to awardees on December 16, 2005 and January 3, 2006. The
RSA’s were originally scheduled to vest fully on the date the Company’s first
drug product becomes widely commercially available, as such date is determined
by the Company. Under the Amendment, the shares of
restricted stock shall vest on the fourth anniversary of the original date of
grant.
3
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Name
and Position
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Grants
of Restricted Shares Effective
October
30, 2007
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|||
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John
G. Cooper
Executive
Vice President,
Chief
Financial Officer and Treasurer
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9,000 | |||
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David
L. Lopez, Esq., CPA
Executive
Vice President, General Counsel,
Chief
Compliance Officer and Secretary
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9,000 | |||
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Robert
Segal, M.D.
Senior
Vice President Medical and Scientific Affairs,
and
Medical Officer
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4,000 | |||
Item 5.03. Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On
September 3, 2009, the Board adopted an amendment to the Company’s Amended and
Restated By-Laws (“By-Laws”). In Article I, Section 9, the Board
modified the timelines, requirements, and procedures concerning stockholder
nominations of candidates to elections of the Board of Directors, including the
requirement that the stockholder represent that such person will not have
undisclosed voting arrangements as a director and that the stockholder disclose
material relationships between the stockholder and the nominee, opportunities
for the stockholder to profit from any change in the value of the shares of the
Company and any proxy arrangements, short positions, dividend rights and
performance related fees connected with a change in value of the Company’s
shares.
In
Article I, Section 10, the Board modified terms governing stockholder proposals
other than director nominations, including requiring the enhanced stockholder
disclosure requirements added to Article I, Section 9 as described
above.
The
foregoing description of the amendment to the By-Laws is qualified in its
entirety by reference to the full text of the By-Laws.
Pursuant
to Article II, Section 2 of the By-Laws, the number of directors of the Company
may be increased or decreased by the vote of a majority of the entire Board then
in office. On September 3, 2009, the Board unanimously adopted a
resolution setting the size of the Board at five members, effective immediately,
which represents a decrease of one in the size of the Board.
Item 8.01. Other
Events.
On
September 4, 2009, the Company issued a press release announcing that its 2009
annual meeting of stockholders will be held on December 7, 2009 in New York, New
York. The record date for determining stockholders entitled to vote at the
meeting will be October 8, 2009.
4
The date
of the 2009 annual meeting will be more than 30 days after the anniversary date
of the 2008 annual meeting. Pursuant to Rule 14a-8 under the
Securities Exchange Act of 1934, as amended, stockholders may present proposals
for inclusion in the Company’s proxy statement for the 2009 annual meeting by
submitting their proposals to the Company a reasonable time before the Company
begins to print and send its proxy materials. The Company’s Board of Directors
has set September 15, 2009 as the deadline for receipt of stockholder proposals
pursuant to Rule 14a-8. In order for a proposal under Rule 14a-8
to be considered timely, it must be received by the Company on or prior to
September 15, 2009, at the Company’s principal executive offices at 2600 Kelly
Rd., Suite 100, Warrington, PA 18976 and be directed to the attention of the
Corporate Secretary. All stockholder proposals must be in compliance with
applicable laws and regulations in order to be considered for inclusion in the
proxy statement for the 2009 annual meeting.
Under the
Company’s By-Laws, stockholders may also present a proposal or director
nomination at the 2009 annual meeting if advance written notice is timely given
to the Secretary of the Company, at the Company’s principal executive offices,
in accordance with the Company’s By-Laws. To be timely, notice by a
stockholder of any proposal or nomination must be provided not later than the
close of business on September 15, 2009. The Company’s By-Laws specify
requirements relating to the content of the notice that stockholders must
provide.
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Item
9.01.
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Financial
Statements and Exhibits.
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(d)
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Exhibits
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3.1
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Amended
and Restated By-Laws of Discovery Labs, effective as of September 3,
2009.
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10.1
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Agreement
dated as of August 13, 2009 by and between Discovery Labs and W. Thomas
Amick.
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10.2
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Agreement
dated as of August 13, 2009 by and between Discovery Labs and Robert J.
Capetola.
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99.1
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Press
release dated September 4, 2009.
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Cautionary
Note Regarding Forward-looking Statements:
To the
extent that statements in this Current Report on Form 8-K are not strictly
historical, including statements as to business strategy, outlook, objectives,
future milestones, plans, intentions, goals, future financial conditions, future
collaboration agreements, the success of the Company’s product development or
otherwise as to future events, such statements are forward-looking, and are made
pursuant to the safe harbor provisions of the Private Securities Litigation
Reform Act of 1995. The forward-looking statements contained in this Current
Report are subject to certain risks and uncertainties that could cause actual
results to differ materially from the statements made. Such risks and others are
further described in the Company's 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.
5
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.
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Discovery
Laboratories, Inc.
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|||
|
By:
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/s/ W. Thomas Amick | ||
| Name: | W. Thomas Amick | ||
| Title: | Chairman of the Board and Interim | ||
| Chief Executive Officer | |||
Date: September
4, 2009
6
Exhibit
3.1
AMENDED
AND RESTATED
BY-LAWS
OF
DISCOVERY
LABORATORIES, INC.
(A
Delaware Corporation)
ARTICLE
I
Meetings
of Stockholders
Section
1. Annual
Meeting. The annual meeting of the stockholders of Discovery
Laboratories, Inc. (the "Corporation"), for the election of directors and for
the transaction of such other business as may come before the meeting shall be held at such date and
time as shall be designated by the Board of Directors (the “Board”), the
Chairman of the Board or the President.
Section
2. Special
Meeting. Special meetings of the stockholders, unless
otherwise prescribed by statute, may be called at any time by the Board, the
Chairman of the Board or the Chief Executive Officer. Business
transacted at any special meeting of stockholders shall be limited to matters
relating to the purpose or purposes stated in the notice of
meeting.
Section
3. Notice of
Meetings. Notice of the place,
date and time of the holding of each annual and special meeting of the
stockholders and, in the case of a special meeting, the purpose or purposes
thereof shall be given personally or by mail in a postage prepaid envelope to
each stockholder entitled to vote at such meeting, not less than 10 nor more
than 60 days before the date of such meeting, and, if mailed, it shall be
directed to such stockholder at his or her address as it appears on the records
of the Corporation, unless such stockholder shall have filed with the Secretary
of the Corporation a written request that notices to such stockholder be mailed
to some other address, in which case it shall be directed to the stockholder at
such other address. If mailed, such notice shall be deemed to be
delivered when deposited in United States mail so addressed with postage thereon
prepaid. Notice of any meeting of stockholders shall not be required
to be given to any stockholder who shall attend such meeting in person or by
proxy and shall not, at the beginning of such meeting, object to the transaction
of any business because the meeting is not lawfully called or convened, or who
shall, either before or after the meeting, submit a signed waiver of notice, in
person or by proxy. Unless the Board shall fix after the adjournment
a new record date for an adjourned meeting, notice of such adjourned meeting
need not be given if the time and place to which the meeting shall be adjourned
were announced at the meeting at which the adjournment is taken. At
the adjourned meeting, the Corporation may transact any business which may have
been transacted at the original meeting. If the adjournment is for
more than 30 days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section
4. Place
of Meetings. Meetings of the stockholders my be held at such
place, within or without the State of Delaware, as the Board or other officer
calling the same shall specify in the notice of such meeting, or in a duly
executed waiver of notice thereof.
Section
5. Quorum. At
all meetings of the stockholders, the holders of a majority of the votes of the
shares of stock of the Corporation issued and outstanding and entitled to vote
shall be present in person or by proxy to constitute a quorum for the
transaction of any business, except when stockholders are required to vote by
class, in which event a majority of the issued and outstanding shares of the
appropriate class shall be present in person or by proxy, or except as otherwise
provided by statute or in the Corporation’s Restated Certificate of
Incorporation (the “Certificate of Incorporation”). In the absence of
a quorum, the holders of a majority of the votes of the shares of stock present
in person or by proxy and entitled to vote, or if no stockholder entitled to
vote is present, then the chairman of the meeting, as set forth in Section 6
below, may adjourn the meeting from time to time. At any such
adjourned meeting at which a quorum may be present, any business may be
transacted which might have been transacted at the meeting as originally
called.
1
Section
6. Organization. At
each meeting of the stockholders, the Chairman of the Board, or in his absence
or inability to act, the President, or in the absence or inability to act of the
Chairman of the Board and the President or an Executive Vice President, or in
the absence of all the foregoing, any person chosen by a majority of those
stockholders present shall act as chairman of the meeting. The
Secretary, or, in his absence or inability to act, the Assistant Secretary or
any person appointed by the chairman of the meeting shall act as secretary of
the meeting and keep the minutes thereof.
Section
7. Order of
Business. The order of business at all meetings of the
stockholders shall be as determined by the chairman of the meeting.
Section
8. Voting. Except
as otherwise provided by statute, the Certificate of Incorporation or any
certificate duly filed in the office of the Secretary of State of the State of
Delaware, each holder of record of shares of stock of the Corporation having
voting power shall be entitled at each meeting of the stockholders to one vote
for every share of such stock standing in his name on the record of stockholders
of the Corporation on the date fixed by the Board as the record date for the
determination of the stockholders who shall be entitled to notice of and to vote
at such meeting; or if such record date shall not have been so fixed, then at
the close of business on the day next preceding the day on which the meeting is
held; or each stockholder entitled to vote at any meeting of stockholders may
authorize another person or persons to act for him by a proxy signed by such
stockholder or his attorney-in-fact. Any such proxy shall be
delivered to the secretary of such meeting at or prior to the time designated in
the order of business for so delivering such proxies. No proxy shall
be valid after the expiration of three years from the date thereof, unless
otherwise provided in the proxy. Every proxy shall be revocable at
the pleasure of the stockholder executing it, except in those cases where an
irrevocable proxy is permitted by law. Except as otherwise provided
by statute, these Amended and Restated By-Laws (the “By-Laws”), or the
Certificate of Incorporation, any corporate action to be taken by vote of the
stockholders shall be authorized by a majority of the total votes, or when
stockholders are required to vote by class by a majority of the votes of the
appropriate class, cast at a meeting of stockholders by the holders of shares
present in person or represented by proxy and entitled to vote on such
action. Unless required by statute, or determined by the chairman of
the meeting to be advisable, the vote on any question need not be by written
ballot. On a vote by written ballot, each ballot shall be signed by
the stockholder voting, or by his proxy, if there be such proxy, and shall state
the number of shares voted
Section
9. Nominations. The procedures governing
stockholder nominees of candidates to elections of the Board of Directors or to
fill vacancies, as applicable, shall be administered by the Corporation’s
Nomination Committee. This Section 9 shall be the exclusive means by
which a stockholder may make such nominations before any meeting of stockholders
(other than matters properly brought under Rule 14a-8 under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) and included in the
Corporation’s notice of meeting). For nominations for election to the Board or
for other business to be properly brought by a stockholder before a meeting of
stockholders, the stockholder must first have given timely written notice
thereof to the Secretary of the Corporation. In addition to other
applicable requirements, to be timely, a notice of nominations or other business
to be brought before an annual meeting of stockholders must be substantially in
the form set forth below and delivered to the Secretary not later than the date
set forth in the “Stockholder Proposals” section of the Proxy Statement
delivered by the Corporation to its stockholders, and filed with the Securities
and Exchange Commission, in connection with the preceding year's annual
meeting. If the Corporation did not deliver a Proxy Statement in
connection with the preceding year's annual meeting, such notice must be
delivered not less than 120 nor more than 150 days prior to the first
anniversary of the preceding year's annual meeting; provided, that if the date
of an annual meeting is more than 30 days before or more than 60 days after such
anniversary, all notices must be delivered not earlier than 90 days prior to
such annual meeting and not later than the later of (i) 60 days prior to the
annual meeting or (ii) 10 days following the date on which public announcement
of the date of such annual meeting is first made by the
Corporation. With respect to special meetings of stockholders, such
notice must be delivered to the Secretary not more than 90 days prior to such
meeting and not later than the later of (i) 60 days prior to such meeting or
(ii) 10 days following the date on which public announcement of the date of such
meeting is first made by the Corporation. Any stockholder delivering
notice to the Secretary under this Section 9, Article I must be a stockholder of
record on the date such notice is delivered. The Secretary shall
deliver the notice to the Nomination Committee. No stockholder
nominee may be a candidate for election at any meeting of stockholders or
otherwise elected to fill a vacancy in the Board unless such person has been
approved by the Nomination Committee and was nominated in accordance with the
procedures set forth in this Section 9, Article I. If the facts
warrant, the Board, or the chairman of a stockholders meeting at which Directors
are to be elected may determine and declare that a nomination was not made in
accordance with the foregoing procedure and, if it is so determined, no election
may be made with respect to such nominee. The right of stockholders
to make nominations pursuant to the foregoing procedure is subject to the
superior rights, if any, of the holders of any class or series of stock having a
preference over the common stock. The procedures set forth in this
Section 9 of Article I for nomination for the election of Directors by
stockholders are in addition to, and not in limitation of, any procedures now in
effect or hereafter adopted by or at the direction of the Board or any committee
thereof.
2
If a
stockholder attempts to nominate a candidate to the Board and complies with the
procedure set forth in this Section 9, Article I but the Nomination Committee
rejects such stockholder’s nomination, such stockholder may nominate such
candidate notwithstanding the decision of the Nomination Committee at the next
election of Directors after such candidate was rejected by the Nomination
Committee if such stockholder delivers to the Secretary written requests that
such person be nominated to the Board from stockholders holding at least 50% of
the eligible votes as of the record date of such election.
To be in
proper written form, each such notice to the Secretary delivered in connection
with a stockholder nomination must set forth as to each person whom the
stockholder proposes to nominate for election as a director:
(i) the
name, age, business address and residence address of the person;
(ii) the
principal occupation or employment of the person;
(iii) the
class or series and number of shares of capital stock of the Corporation that
are owned beneficially or of record by the person;
(iv) a
representation that the person does not have, nor will not have, any undisclosed
voting commitments or other arrangements with respect to such person’s actions
as a director; and
(v) any
other information relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of Directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder;
3
Each such
notice to the Secretary must also set forth as to the stockholder giving the
notice:
(i) the
name and record address of such stockholder;
(ii) the
class or series and number of shares of capital stock of the Corporation that
are owned beneficially or of record by such stockholder;
(iii) a
description of all arrangements, material relationships, or understandings
between such stockholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to be
made by such stockholder;
(iv) a
representation that such stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice;
(v) any
option, warrant, convertible security, stock appreciation right, or similar
right with an exercise or conversion privilege or a settlement payment or
mechanism at a price related to any class or series of shares of the Corporation
or with a value derived in whole or in part from the value of any class or
series of shares of the Corporation, whether or not such instrument or right
shall be subject to settlement in the underlying class or series of capital
stock of the Corporation or otherwise (a “Derivative Instrument”) directly or
indirectly owned beneficially by such stockholder and any other director
indirect opportunity to profit or share in any profit derived from any increase
or decrease in the value of shares of the Corporation;
(vi) any
proxy, contract, arrangement, understanding, or relationship pursuant to which
such stockholder has a right to vote any shares of any security of the
Corporation;
(vii) any
short interest in any security of the Corporation (for purposes of this By-Law a
person shall be deemed to have a short interest in a security if such person
directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise, has the opportunity to profit or share in any profit
derived from any decrease in the value of the subject security);
(viii)
any rights to dividends on the shares of the Corporation owned beneficially by
such stockholder that are separated or separable from the underlying shares of
the Corporation;
(ix) any
proportionate interest in shares of the Corporation or Derivative Instruments
held, directly or indirectly, by a general or limited partnership in which such
stockholder is a general partner or, directly or indirectly, beneficially owns
an interest in a general partner;
(x) any
performance-related fees (other than an asset-based fee) that such stockholder
is entitled to based on any increase or decrease in the value of shares of the
Corporation or Derivative Instruments, if any, as of the date of such notice,
including without limitation any such interests held by members of such
stockholder’s immediate family sharing the same household (which information
shall be supplemented by such stockholder and beneficial owner, if any, not
later than 10 days after the record date for the meeting to disclose such
ownership as of the record date; and
(xi) any
other information relating to such stockholder that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of Directors pursuant to
Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder.
4
All notices delivered to the Secretary
in connections must be accompanied by a written consent of each proposed nominee
to being named as a nominee and to serve as a Director if elected.
Section
10. Stockholder
Proposals. The procedures governing stockholder proposals,
other than the nomination of a director or directors by a stockholder, (“Other
Business”) of business to be conducted at meetings of stockholders
shall be administered by the Corporation’s Nomination Committee. This Section 10
shall be the exclusive means by which a stockholder may submit any Other
Business that the stockholder proposes to bring before an any meeting of
stockholders (other than matters properly brought under Rule 14a-8 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) and included in
the Company’s notice of meeting). At any meeting of the stockholders,
only such Other Business shall be conducted as shall have been properly brought
before such meeting. To be properly brought before a meeting, Other
Business must be: (a) as specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board; (b) otherwise properly
brought before the meeting by or at the direction of the Board; or (c) otherwise
properly brought before the meeting by a stockholder. For Other
Business to be properly brought by a stockholder before a meeting of
stockholders, the stockholder must first have given timely written notice
thereof to the Secretary of the Corporation. In addition to other
applicable requirements set forth in the Exchange Act, to be timely, a notice of
other Other Business to be brought before an annual meeting of stockholders must
be substantially in the form set forth below and delivered to the Secretary not
later than the date set forth in the “Stockholder Proposals” section of the
Proxy Statement delivered by the Corporation to its stockholders, and filed with
the Securities and Exchange Commission, in connection with the preceding year's
annual meeting. If the Corporation did not deliver a Proxy Statement
in connection with the preceding year's annual meeting, such notice must be
delivered not less than 120 nor more than 150 days prior to the first
anniversary of the date of the Corporation's proxy statement delivered to
stockholders in connection with the preceding year's annual meeting; provided,
that if (A) the date of an annual meeting is more than 30 days before or more
than 60 days after such anniversary, or (B) no proxy statement was delivered to
stockholders by the Corporation in connection with the preceding year's annual
meeting, all notices must be delivered not earlier than 90 days prior to such
annual meeting and not later than the later of (i) 60 days prior to the annual
meeting or (ii) 10 days following the date on which public announcement of the
date of such annual meeting is first made by the Corporation. With
respect to special meetings of stockholders, such notice must be delivered to
the Secretary not more than 90 days prior to such meeting and not later than the
later of (i) 60 days prior to such meeting or (ii) 10 days following the date on
which public announcement of the date of such meeting is first made by the
Corporation. Any stockholder delivering notice to the Secretary under
this Section 10 of Article I must be a stockholder of record on the date such
notice is delivered. The Nomination Committee must approve each
stockholder proposal of other business before such proposal may be voted on at
any meeting of stockholders or otherwise. No stockholder proposal of
other business before such proposal may be voted on at any meeting of
stockholders or otherwise unless such proposal was approved in accordance with
the procedures set forth in this Section 10 of Article I. The
procedures set forth in this Section 10 of Article I for submission of any Other
Business that the stockholder proposes to bring before any meeting of
stockholders are in addition to, and not in limitation of, any procedures now in
effect or hereafter adopted by or at the direction of the Board or any committee
thereof. If the chairman of a meeting of stockholders determines that
Other Business was not properly brought before the meeting in accordance with the
foregoing procedures, the chairman shall declare to the meeting that the Other
Business was not properly brought before the meeting and such Other Business
shall not be transacted.
5
To be in
proper written form, a stockholder's notice to the Secretary must set forth as
to each matter such stockholder proposes to bring before the
meeting:
(i) a
brief description of the Other Business desired to be brought before the meeting
and the reasons for conducting such Other Business at the meeting;
(ii) the
name and record address of such stockholder;
(iii) the
class or series and number of shares of capital stock of the Corporation that
are owned beneficially or of record by such stockholder;
(iv) a
description of all arrangements or understandings between such stockholder and
any other person or persons (including their names) in connection with the
proposal of such Other Business by such stockholder and any material interest of
such stockholder in such business;
(v) a
representation that such stockholder intends to appear in person or by proxy at
the meeting to bring such business before the meeting;
(vi)
any option, warrant, convertible security, stock appreciation right, or similar
right with an exercise or conversion privilege or a settlement payment or
mechanism at a price related to any class or series of shares of the Corporation
or with a value derived in whole or in part from the value of any class or
series of shares of the Corporation, whether or not such instrument or right
shall be subject to settlement in the underlying class or series of capital
stock of the Corporation or otherwise (a “Derivative Instrument”) directly or
indirectly owned beneficially by such stockholder and any other director
indirect opportunity to profit or share in any profit derived from any increase
or decrease in the value of shares of the Corporation;
(vii) any
proxy, contract, arrangement, understanding, or relationship pursuant to which
such stockholder has a right to vote any shares of any security of the
Company;
(viii)
any short interest in any security of the Company (for purposes of this By-Law a
person shall be deemed to have a short interest in a security if such person
directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise, has the opportunity to profit or share in any profit
derived from any decrease in the value of the subject security);
(ix) any
rights to dividends on the shares of the Corporation owned beneficially by such
stockholder that are separated or separable from the underlying shares of the
Corporation;
(x) any
proportionate interest in shares of the Corporation or Derivative Instruments
held, directly or indirectly, by a general or limited partnership in which such
stockholder is a general partner or, directly or indirectly, beneficially owns
an interest in a general partner;
(xi) any
performance-related fees (other than an asset-based fee) that such stockholder
is entitled to based on any increase or decrease in the value of shares of the
Corporation or Derivative Instruments, if any, as of the date of such notice,
including without limitation any such interests held by members of such
stockholder’s immediate family sharing the same household (which information
shall be supplemented by such stockholder and beneficial owner, if any, not
later than 10 days after the record date for the meeting to disclose such
ownership as of the record date); and
(xii) any
other information that is required by law to be provided by the stockholder in
his capacity as proponent of a stockholder proposal.
6
Section
11. List of
Stockholders. The officer who has charge of the stock ledger
of the Corporation, or the transfer agent of the Corporation's stock, if there
be one then acting, shall prepare and make, at least 10 days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least 10 days prior to the meeting, either at a place
within the city where the meeting is to be held, at the place where the meeting
is to be held or at the office of the transfer agent. The list shall
also be produced and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is
present.
Section
12. Inspectors. The Board may, in
advance of any meeting of stockholders, appoint one or more inspectors to act at
such meeting or any adjournment thereof. If the inspectors shall not
be so appointed or if any of them shall fail to appear or act, the chairman of
the meeting may, and on the request of any stockholder entitled to vote thereat
shall, appoint inspectors. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector at such meeting with strict impartiality and according to
the best of his ability. The inspectors shall determine the number of
shares outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, the validity and effect
of proxies, and shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count and
tabulate all votes, ballots or consents, determine the result, and do such acts
as are proper to conduct the election or vote with fairness to all
stockholders. Upon the request of the chairman of the meeting or any
stockholder entitled to vote thereat, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall execute
a certificate of any fact found by them. No director or candidate for
the office of director shall act as inspector of an election of
directors. Inspectors need not be stockholders.
Section
13. Consent
of Stockholders in Lieu of Meeting. Unless otherwise
provided in the Certificate of Incorporation, any action required by Subchapter
VII of the General Corporation Law of the State of Delaware, to be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered to the corporation by
delivery to its registered office in this State, its principal place of
business, or an officer or agent of the corporation having custody of the book
in which proceedings of meetings of stockholders are
recorded. Delivery made to a corporation's registered office shall be
by hand or by certified or registered mail, return receipt
requested.
7
ARTICLE
II
Board
Of Directors
Section
1. General
Powers. The business and affairs of the Corporation shall be
managed by the Board. The Board may exercise all such authority and
powers of the Corporation and do all such lawful acts and things as are not by
statute or the Certificate of Incorporation or by these By-Laws directed or
required to be exercised or done by the stockholders.
Section
2. Number,
Qualifications, Elections and Term of Office. The number of
directors of the Corporation (“Directors”) shall be fixed from time to time by
the vote of a majority of the entire Board then in office and the number thereof
may thereafter by like vote be increased or decreased to such greater or lesser
number (not less than three) as may be so provided, subject to the provisions of
Section 11 of this Article II. All of the Directors shall be of full
age and need not be stockholders. Except as otherwise provided by
statute or these By-Laws, the Directors shall be elected at the annual meeting
of the Stockholders for the election of Directors at which a quorum is present,
and the persons receiving a plurality of the votes cast at such meeting shall be
elected. Each Director shall hold office until the next annual
meeting of the stockholders and until his successors shall have been duly
elected and qualified, or until such Director’s death, or until such Director
shall have resigned, or have been removed, as hereinafter provided in these
By-Laws, or as otherwise provided by statute or the Certificate of
Incorporation.
Section
3. Place of
Meetings. Meetings of the Board may be held at such place,
within or without the State of Delaware, as the Board may from time to time
determine or as shall be specified in the notice or waiver of notice of such
meeting.
Section
4. Annual
Meeting. The Board shall meet for the purpose of organization,
the election or appointment of officers and the transaction of other business,
as soon as practicable after each annual meeting of the stockholders, on the
same day and at the same place where such annual meeting shall be
held. Notice of such meeting need not be given. Such
meeting may be held at any other time or place (within or without the State of
Delaware) which shall be specified in a notice thereof given as hereinafter
provided in Section 7 of this Article II.
Section
5. Regular
Meetings. Regular meetings of the Board shall be held at such
time and place as the Board may from time to time determine. If any
day fixed for a regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting which would otherwise be held on that
day shall be held at the same hour on the next succeeding business
day. Notice of regular meetings of the Board need not be given except
as otherwise required by statute or these By-Laws.
Section
6. Special
Meetings. Special meetings of the
Board may be called by the Chairman of the Board, two or more directors or the
President of the Corporation.
Section
7. Notice of
Meetings. Notice of each special meeting of the Board (and of
each regular meeting for which notice shall be required) shall be given by the
Secretary as hereinafter provided in this Section 7 of Article II, in which
notice shall be stated the time and place (within or without the State of
Delaware) of the meeting. Notice of each such meeting shall be
delivered to each Director either personally or by telephone, telegraph, cable
or wireless, at least 24 hours before the time at which such meeting is to be
held or by first-class mail, postage prepaid, addressed to him at his residence,
or usual place of business, at least three days before the day on which such
meeting is to be held. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail. Notice of any
such meeting need not be given to any director who shall, either before or after
the meeting, submit a signed waiver of notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice to
him. Except as otherwise specifically required by these By-Laws, a
notice or waiver of notice of any regular or special meeting need not state the
purposes of such meeting.
8
Section
8. Quorum
and Manner of Acting. A majority of the entire Board shall be
present in person at any meeting of the Board in order to constitute a quorum
for the transaction of business at such meeting, and, except as otherwise
expressly required by statute or the Certificate of Incorporation, the act of a
majority of the Directors present at any meeting at which a quorum is present
shall be the act of the Board. Any one or more members of the Board
or any committee thereof may participate in a meeting of the Board or such
committee by means of a conference telephone or similar communications equipment
allowing all participants in the meeting to hear each other at the same time and
participation by such means shall constitute presence in person at a
meeting. In the absence of a quorum at any meeting of the Board, a
majority of the directors present thereat, or if no director be present, the
Secretary, may adjourn such meeting to another time and place, or such meeting,
unless it be the annual meeting of the Board, need not be held. At
any adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally
called. Except as provided in Article III of these By-Laws, the
directors shall act only as a Board and the individual directors shall have no
power as such.
Section
9. Organization. At
each meeting of the Board, the Chairman of the Board (or, in his or her absence
or inability to act, the President, or, in his or her absence or inability to
act, another Director chosen by a majority of the Directors present) shall act
as chairman of the meeting and preside thereat. The Secretary (or, in
his or her absence or inability to act, any person appointed by the chairman of
the meeting) shall act as secretary of the meeting and keep the minutes
thereof.
Section
10. Resignations. Any Director may resign
at any time by giving written notice of his resignation to the Board, the
Chairman of the Board, the President or the Secretary. Any such
resignation shall take effect at the time specified therein or, if the time when
it shall become effective shall not be specified therein, immediately upon its
receipt; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section
11. Vacancies. Vacancies,
including newly created directorships, may be filled by the decision of majority
of the Directors then in office, including those who have so resigned, shall
have power to fill such vacancy or vacancies, the vote thereon to take effect
when such resignation or resignations shall become effective, and each director
so chosen shall hold office as provided in this Section for the filling of other
vacancies.
Section
12. Removal
of Directors. Except as otherwise provided in the Certificate
of Incorporation or in these By-Laws, any Director may be removed, either with
or without cause, at any time, by the affirmative vote of a majority of the
votes of the issued and outstanding shares of stock entitled to vote for the
election of the stockholders called and held for that purpose, or by a majority
vote of the Board at a meeting called for such purpose, and the vacancy in the
Board caused by any such removal may be filled by such stockholders or
Directors, as the case may be, at such meeting, and if the stockholders shall
fail to fill such vacancy, such vacancy shall be filled in the manner as
provided by these By-Laws.
9
Section
13. Compensation. The Board shall have
authority to fix the compensation, including fees and reimbursement of expenses,
of Directors for services to the Corporation in any capacity, provided no such
payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
Section
14. Action by
the Board. To the extent permitted under the laws of the State
of Delaware, any action required or permitted to be taken at any meeting of the
Board or of any committee thereof may be taken without a meeting if all members
of the Board or committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of the proceedings of the
Board or committee.
ARTICLE
III
Executive
and Other Committees
Section
1. Executive
and Other Committees. The Board may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of two or more of the directors of the Corporation. The Board
may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the
Committee. Any such committee, to the extent provided in the
resolution, shall have and may exercise the powers of the Board in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it,
provided, however, that in the absence or disqualification of any member of such
committee or committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Each committee shall
keep minutes of its proceedings and shall, report such minutes to the Board when
required. All such proceedings shall be subject to revision or
alteration by the Board; provided, however, that third
parties shall not be prejudiced by such revision or alteration.
Section
2. General. A
majority of any committee may determine its action and fix the time and place of
its meetings, unless the Board shall otherwise provide. Notice of
such meetings shall be given to each member of the committee in the manner
provided for in Article II, Section 7. The Board shall have the power
at any time to fill vacancies in, to change the membership of, or to dissolve
any such committee. Nothing herein shall be deemed to prevent the
Board from appointing one or more committees consisting in whole or in part of
persons who are directors of the Corporation; provided, however, that no such
committee shall have or may exercise any authority of the Board.
ARTICLE
IV
Officers
Section
1. Number
and Qualifications. The officers of the Corporation shall
include the Chairman of the Board, the President, one or more Vice Presidents
(one or more of whom may be designated an Executive Vice President or a Senior
Vice President), the Treasurer and the Secretary. Any two or more
offices may be held by the same person. Such officers shall be
elected or appointed from time to time by the Board, each to hold office until
the meeting of the Board following the next annual meeting of the stockholders,
or until his or her successor shall have been duly elected or appointed and
shall have qualified, or until such Officer’s death, or until such Officer shall
have resigned, or have been removed, as hereinafter provided in these
By-Laws. The Board may from time to time elect a Vice Chairman of the
Board, and the Board may from time to time elect, or the Chairman of the Board,
or the President may appoint, such other officers (including one or more
Assistant Vice Presidents, Assistant Secretaries and Assistant Treasurers), as
may be necessary or desirable for the business of the
Corporation. Such other officers and agents shall have such duties
and shall hold their offices for such terms as may be prescribed by the Board or
by the appointing.
10
Section
2. Resignation. Any officer of the
Corporation may resign at any time by giving written notice of his resignation
to the Board, the Chairman of the Board, the President or the
Secretary. Any such resignation shall take effect at the time
specified therein or, if the time when it shall become effective shall not be
specified therein, immediately upon its receipt; and unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
Section
3. Removal. Any
officer or agent of the Corporation may be removed, either with or without
cause, at any time, by the vote of the majority of the entire Board at any
meeting of the Board or, except in the case of an officer or agent elected or
appointed by the Board, by the Chairman of the Board or the
President. Such removal shall be without prejudice to the contractual
rights, if any, of the person so removed.
Section
4. Vacancies. A
vacancy in any office, whether arising from death, disability, resignation,
removal or any other cause, may be filled for the unexpired portion of the term
of the office which shall be vacant, in the manner prescribed in these By-Laws
for the regular election or appointment to such office.
Section
5. a. The
Chairman of the Board. The Chairman of the Board, if one be
elected, shall, if present, preside at each meeting of the stockholders and of
the Board and shall be an ex officio member of all committees of the
Board. He shall perform all duties incident to the office of Chairman
of the Board and such other duties as may from time to time be assigned to him
by the Board.
b. The Vice
Chairman of the Board. The Vice Chairman of the Board, if one
be elected, shall have such powers and perform all such duties as from time to
time may be assigned to him by the Board or the Chairman of the Board and,
unless otherwise provided by the Board, shall in the case of the absence or
inability to act of the Chairman of the Board, perform the duties of the
Chairman of the Board and when so acting shall have all the powers of, and be
subject to all the restrictions upon, the Chairman of the Board.
Section
6. The
President. The President shall be
the chief executive officer of the Corporation and shall have general and active
supervision and direction over the business and affairs of the Corporation and
over its several officers, subject, however, to the direction of the Chairman of
the Board and the control of the Board. If no Chairman of the Board
is elected or at the request of the Chairman of the Board, or in the case of his
absence or inability to act, unless there be a Vice Chairman of the Board so
designated to act, the President shall perform the duties of the Chairman of the
Board and when so acting shall have all the powers of, and be subject to all the
restrictions upon, the Chairman of the Board. He shall perform all
duties incident to the office of President and such other duties as from time to
time may be assigned to him by the Board or the Chairman of the
Board.
11
Section
7. Vice
Presidents. Each Executive Vice President, each Senior Vice
President and each Vice President shall have such powers and perform all such
duties as from time to time may be assigned to such person by the Board, the
Chairman of the Board or the President. They shall in the order of
their seniority, have the power and may perform the duties of the Chairman of
the Board and the President.
Section
8. The
Treasurer. The Treasurer shall exercise general supervision
over the receipt, custody and disbursement of corporate funds. He or
she shall have such further powers and duties as may be conferred upon him from
time to time by the President or the Board of Directors. He or she
shall perform the duties of controller if no one is elected to that
office.
Section
9. The
Secretary. The Secretary
shall:
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(a)
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keep
or cause to be kept in one or more books provided for the purpose, the
minutes of all meetings of the Board, the committees of the Board and the
stockholders;
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(b)
|
see
that all notices are duly given in accordance with the provisions of these
By-Laws and as required by law;
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(c)
|
be
custodian of the records and the seal of the Corporation and affix and
attest the seal to all stock certificates of the Corporation (unless the
seal be a facsimile, as hereinafter provided) and affix and attest the
seal to all other documents to be executed on behalf of the Corporation
under its seal;
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(d)
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see
that the books, reports, statements, certificates and other documents and
records required by law to be kept and filed are properly kept and filed;
and
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(e)
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in
general, perform all the duties incident to the office of Secretary and
such other duties as from time to time may be assigned to him by the
Board, the Chairman of the Board, or the
President.
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Section
10. Officer's
Bonds or Other Security. If required by the Board, any officer
of the Corporation may be required to give a bond or other security for the
faithful performance of his duties, in such amount and with such surety or
sureties as the Board may require.
Section
11. Compensation. The compensation of the
officers of the Corporation for their services as such officers shall be fixed
from time to time by the Board; provided, however, that the
Board may delegate to the Chairman of the Board or the President the power to
fix the compensation of officers and agents appointed by the Chairman of the
Board or the President, as the case may be. An officer of the
Corporation shall not be prevented from receiving compensation by reason of the
fact that he is also a director of the Corporation, but any such officer who
shall also be a Director shall not have any vote in the determination of the
amount of compensation paid to him.
12
ARTICLE
V
Indemnification
The Corporation shall, to the fullest
extent permitted by the laws of the state of Delaware, indemnify any and all
persons whom it shall have power to indemnify against any and all of the costs,
expenses, liabilities or other matters incurred by them by reason of having been
officers or Directors of the Corporation, any subsidiary of the Corporation or
of any other corporation for which such person acted as officer or director at
the request of the Corporation.
ARTICLE
VI
Contracts,
Checks, Drafts, Bank Account, Etc.
Section
1. Execution
of Contracts. Except as otherwise required by statute, the
Certificate of Incorporation or these By-Laws, any contracts or other
instruments may be executed and delivered in the name and on behalf of the
Corporation by such officer or officers (including any assistant officer) of the
Corporation as the Board may, from time to time, direct. Such
authority may be general or confined to specific instances as the Board may
determine. Unless authorized by the Board or expressly permitted by
these By-Laws, an officer or agent or employee shall not have any power or
authority to bind the Corporation by any contract or engagement or to pledge its
credit or to render it pecuniarily liable for any purpose or to any
amount.
Section
2. Loans. Unless
the Board shall otherwise determine, either (a) the Chairman of the Board, the
Vice Chairman of the Board or the President, singly, or (b) a Vice President,
together with the Treasurer, may effect loans and advances at any time for the
Corporation or guarantee any loans and advances to any subsidiary of the
Corporation, from any bank, trust company or other institution, or from any
firm, corporation or individual, and for such loans and advances way make,
execute and deliver promissory notes, bonds or other certificates or evidences
of indebtedness of the Corporation, or guarantee of indebtedness of subsidiaries
of the Corporation, but no officer or officers shall mortgage, pledge,
hypothecate or transfer any securities or other property of the Corporation,
except when authorized by the Board.
Section
3. Checks,
Drafts, Etc. All checks, drafts, bills of exchange or other
orders for the payment of money out of the funds of the Corporation, and all
notes or other evidences of indebtedness of the Corporation, shall be signed in
the name and on behalf of the Corporation by such persons and in such manner as
shall from time to time be authorized by the Board.
Section
4. Deposits. All
funds of the Corporation not otherwise employed shall be deposited from time to
time to the credit of the Corporation in such banks, trust companies or other
depositories as the Board may from time to time designate or as may be
designated by any officer or officers of the Corporation to whom such power of
designation may from time to time be delegated by the Board. For the
purpose of deposit and for the purpose of collection for the account of the
Corporation, checks, drafts and other orders for the payment of money which are
payable to the order of the Corporation my be endorsed, assigned and delivered
by any officer or agent of the Corporation, or in such manner as the Board may
determine by resolution.
Section
5. General
and Special Bank Accounts. The Board may, from time to time,
authorize the opening and keeping of general and special bank accounts with such
banks, trust companies or other depositories as the Board may designate or as
may be designated by any officer or officers of the Corporation to whom such
power of designation may from time to time be delegated by the
Board. The Board may make such special rules and regulations with
respect to such bank accounts, not inconsistent with the provisions of these
By-Laws, as it may deem expedient.
13
Section
6. Proxies
in Respect of Securities of Other Corporations. Unless otherwise
provided by resolution adopted by the Board, the Chairman of the Board, the
President or a Vice President may from time to time appoint an attorney or
attorneys or agent or agents of the Corporation, in the name and on behalf of
the Corporation, to cast the votes which the Corporation may be entitled to cast
as the holder of stock or other securities in any other corporation, any of
whose stock or other securities may be held by the Corporation, at meetings of
the holders of the stock or other securities of such other corporation, or to
consent in writing, in the name of the Corporation as such holder, to any action
by such other corporation, and may instruct the person or persons so appointed
as to the manner of casting such votes or giving such consent, and may execute
or cause to be executed, in the name and on behalf of the Corporation, and under
its corporate seal, or otherwise, all such written proxies or other instruments
as he or she may deem necessary or proper in the premises.
ARTICLE
VII
Shares,
Etc.
Section
1. Stock
Certificates. Shares
of stock of the Corporation shall be represented by certificates, or shall be
uncertificated shares that may be evidenced by a book-entry system maintained by
the registrar of such stock, or a combination of both. To the extent that shares
are represented by certificates, such certificates shall be in a form approved
by the Board. Each certificate shall be signed in the name of the Corporation by
(A) the Chairman or Vice Chairman of the Board or the President or a Vice
President, and (B) the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer, and sealed with the seal of the Corporation (which seal
may be a facsimile, engraved or printed); provided, however, that where
any such certificate is countersigned by a transfer agent other than the
Corporation or one of its employees, or is registered by a registrar other than
the Corporation or one of its employees, the signature of the officers of the
Corporation upon such certificates may be facsimiles, engraved or printed. In
case any officer who shall have signed or whose facsimile signature has been
placed upon such certificates shall have ceased to be such officer before such
certificates shall be issued, they may nevertheless be issued by the Corporation
with the same effect as if such officer were still in office at the date of
their issue.
Section
2. Books of
Account and Record of Shareholders. The books and records of
the Corporation may be kept at such places within or without the state of
incorporation as the Board of Directors may from time to time
determine. The stock record books and the blank stock certificate
books shall be kept by the Secretary or by any other officer or agent designated
by the Board of Directors.
Section
3. Transfer
of Shares. Subject to any
restrictions on transfer and unless otherwise provided by the Board, shares of
stock may be transferred only on the books of the Corporation by the surrender
to the Corporation or its transfer agent of the shares in certificated form,
properly endorsed or accompanied by a written assignment or power of attorney
properly executed, with transfer stamps (if necessary) affixed, or upon proper
instructions from the holder of uncertificated shares, in each case with such
proof of the authenticity of signature as the Corporation or its transfer agent
may reasonably require. Except as otherwise
provided by applicable law, the Corporation shall be entitled to recognize the
exclusive right of a person in whose name any share or shares stand on the
record of stockholders as the owner of such share or shares for all purposes,
including, without limitation, the rights to receive dividends or other
distributions and to vote as such owner, and the Corporation may hold any such
stockholder of record liable for calls and assessments and the Corporation shall
not be bound to recognize any equitable or legal claim to or interest in any
such share or shares on the part of any other person whether or not it shall
have express or other notice thereof. Whenever any transfers of
shares shall be made for collateral security and not absolutely, and both the
transferor and transferee request the Corporation to do so, such fact shall be
stated in the entry of the transfer.
14
Section
4. Regulations. The Board may make such
additional rules and regulations, not inconsistent with these By-Laws, as it may
deem expedient concerning the issue, transfer and registration of certificates
for shares of stock of the Corporation. It may appoint, or authorize
any officer or officers to appoint, one or more transfer agents or one or more
transfer clerks and one or more registrars and may require all certificates for
shares of stock to bear the signature or signatures of any of them.
Section
5. Lost,
Destroyed or Mutilated Certificates. The holder of any
certificate representing shares of stock of the Corporation shall immediately
notify the Corporation of any loss, destruction or mutilation of such
certificate, and the Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it which the owner thereof shall
allege to have been lost, stolen or destroyed or which shall have been
mutilated, and the Board may, in its discretion, require such owner or his legal
representative to give the Corporation a bond in such sum, limited or unlimited,
and in such form and with such surety or sureties as the Board in its absolute
discretion shall determine, to indemnify the Corporation against any claim that
way be made against it on account of the alleged loss, theft or destruction of
any such certificate, or the issuance of a new certificate. Anything
herein to the contrary notwithstanding, the Board, in its absolute discretion,
may refuse to issue any such new certificate, except pursuant to legal
proceedings under the laws of the State of Delaware.
Section
6. Fixing of
Record Date. In order that the Corporation may determine the
stockholders entitled to notice of, or to vote at, any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board may fix in advance a record date, which shall not
be more than 60 nor less than 10 days before the date of such meeting, nor more
than 60 days prior to any other action. A determination of
stockholders of record entitled to notice of, or to vote at, a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the
Board may fix a new record date for the adjourned meeting.
ARTICLE
VIII
Offices
Section
1. Principal
or Registered Office. The principal registered office of the
Corporation shall be at such place as may be specified in the Certificate of
Incorporation or other certificate filed pursuant to law, or if none be so
specified, at such place as may from time to time be fixed by the
Board.
15
Section
2. Other
Offices. The
Corporation also may have an office or offices other than said principal or
registered office, at such place or places either within or without the State of
Delaware.
ARTICLE
IX
Fiscal
Year
The fiscal year of the Corporation
shall be determined by the Board.
ARTICLE
X
Seal
The Board
shall provide a corporate seal which shall contain the name of the Corporation,
the words "Corporate Seal" and the year and State of Delaware.
ARTICLE
XI
Amendments
Section
1. Stockholders. These By-Laws may be
amended or repealed, or new By-Laws may be adopted, at any annual or special
meeting of the stockholders, by a majority of the total votes of the
stockholders or when stockholders are required to vote by class by a majority of
the appropriate class, in person or represented by proxy and entitled to vote on
such action; provided, however, that the
notice of such meeting shall have been given as provided in these By-Laws, which
notice shall mention that amendment or repeal of these By-Laws, or the adoption
of new By-Laws, is one of the purposes of such meeting.
Section
2. Board of
Directors. These By-Laws may also
be amended or repealed or new By-Laws may be adopted by the Board at any meeting
of the Board; provided, however, that notice
of such meeting shall have been given as provided in these By-Laws, which notice
shall mention that amendment or repeal of the By-Laws, or the adoption of new
By-Laws, is one of the purposes of such meetings. By-Laws adopted by
the Board may be amended or repealed by the stockholders as provided in Section
1 of this Article XI.
ARTICLE
XII
Miscellaneous
Section
1. Interested
Directors. No contract or other transaction between the
Corporation and any other corporation shall be affected and invalidated solely
by the fact that any one or more of the Directors of the Corporation is or are
interested in or is a director or officer or are directors or officers of such
other corporation, and any Director or Directors, individually or jointly, may
be a party or parties to or may be interested in any contract or transaction of
the Corporation or in which the Corporation is interested; and no contract, act
or transaction of the Corporation with any person or persons, firm or
corporation shall be affected or invalidated by the fact that any Director of
the Corporation is a party or are parties to or interested in such contract, act
or transaction, or in any way connected with such person or persons, firms or
associations, and each and every person who may become a Director of the
Corporation is hereby relieved from any liability that might otherwise exist
from contracting with the Corporation for the benefit of himself or herself, any
firm, association or corporation in which such Director may be in any way
interested.
16
Section
2. Ratification. Any transaction
questioned in any stockholders derivative suit on the grounds of lack of
authority, defective or irregular execution, adverse interest of director,
officer or stockholder, nondisclosure, miscomputation, or the application of
improper principles or practices of accounting, may be ratified before or after
judgment, by the Board or, by the stockholders in case less than a quorum of
Directors are qualified, and, if so ratified, shall have the same force and
effect as if the questioned transaction had been originally duly authorized, and
said ratification shall be binding upon the Corporation and its stockholders,
and shall constitute a bar to any claim or execution of any judgment, in respect
of such questioned transaction.
17
Exhibit
10.1
AGREEMENT
This Agreement (“Agreement”) shall be effective
as of August 13, 2009, by and between DISCOVERY LABORATORIES, INC., a Delaware
corporation (“Company”)
and W. THOMAS AMICK, Chairman of the Board of Directors of the Company (“Amick”).
WHEREAS,
the Company has requested that Amick, in addition to serving as Chairman of the
Board, accept the position of Chief Executive Officer (“CEO”), and Amick has agreed to
serve in that capacity on a part-time, interim basis and on the terms as set
forth in this Agreement.
NOW,
THEREFORE, intending to be legally bound, , the Company and Amick agree as
follows:
1. CEO
Appointment. The Company hereby appoints Amick, and Amick
agrees to serve, as CEO of the Company. The parties agree that Amick
will continue to serve as Chairman of the Company’s Board of Directors during
the Term of this Agreement.
2. Duties. Amick
will be responsible for all duties customarily associated with the title CEO,
with a specific focus on securing strategic alliance partners and/or accessing
capital through financing and other transactions to advance the Company’s
KL4
surfactant pipeline and to build shareholder value.
3. Term. Amick
will serve as CEO until such time as the Company’s Board of Directors determine
that his services as CEO are no longer needed (the “Term”). In any
event, unless extended in writing, this Agreement will terminate on June 30,
2010.
4. Time;
Location. During the Term, Amick agrees to devote,
on a part-time basis, such of his business time, attention and efforts as
reasonably necessary to the proper performance of his duties. The
parties currently expect that his duties will require, on average, approximately
two days per week. Amick will render services to the Company at the
Company’s headquarters located in Doylestown, Pennsylvania, or at such other
places as he shall deem appropriate for the performance of his
duties.
5. Compensation. In
consideration of the services to be provided under this Agreement, the Company
will pay Amick at a per diem rate of Three Thousand Dollars
($3,000), payable monthly in arrears at the end of each calendar
month. In addition:
(a) the
Company will pay or reimburse Amick for all reasonable expenses incurred in
carrying out his duties and responsibilities under this Agreement, including
lodging and travel expenses, subject to submission of documentation in
accordance with the Company’s reimbursement policies.
(b) Amick
shall be entitled to an award of 60,000 options to purchase common stock of the
Company under the Company’s 2007 Long-Term Incentive Plan, on such terms and
effective as of such date as are approved by the Compensation Committee of the
Company’s Board of Directors.
2
6. Representations, Warranties
and Covenants of Amick.
(a) Amick
represents and warrants to the Company that he is presently under no contractual
or other restriction or obligation which is inconsistent with his execution of
this Agreement or the performance of the obligations hereunder, and during the
Term, Amick covenants that he shall not enter into any agreement, either written
or oral, in conflict with this Agreement. The Company acknowledges
that Amick currently serves as Chairman of Aldagen, Inc., is an advisor to
several private equity firms focused on the biopharmaceutical industry and
serves as a member of the board of directors of several biotechnology
companies.
(b) Amick
represents and agrees that he has not been debarred by the U. S. Food and Drug
Administration or any equivalent foreign agency from practicing before such
agency. Amick further agrees that he will notify the Company
immediately in the event of any debarment or threat of debarment occurring
during the period in which Amick is performing services.
7. Termination. Either
party may terminate this Agreement at any time upon ten (10) days written notice
to the other party.
8. Independent
Contractor. Amick is and throughout the Term shall be an
independent contractor and not an employee of the Company. Amick
shall not be entitled to nor receive any benefit normally provided to the
Company’s employees such as, but not limited to, vacation payment, retirement,
health care or sick pay. The Company shall not be responsible for
withholding income or other taxes from the payments made to
Amick. Amick shall be solely responsible for filing all returns and
paying any federal, state and municipal income, social security or other tax
levied upon or determined with respect to the payments made to Amick pursuant to
this Agreement.
9. Controlling
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Pennsylvania without reference to any
conflict of law principles of such State.
10. Headings. The
headings in this Agreement are inserted for convenience only and shall not be
used to define, limit or describe the scope of this Agreement or any of the
obligations herein.
11. Final
Agreement. This Agreement constitutes the entire agreement
between the parties with respect to its subject matter and supersedes all prior
negotiations, understandings and agreements between the parties, whether written
or oral. This Agreement may be amended, supplemented or
changed only by an agreement in writing signed by both of the
parties.
3
12. Notices. Any
notice required to be given or otherwise given pursuant to this Agreement shall
be in writing and shall be hand delivered, mailed by certified mail, return
receipt requested or sent by recognized overnight courier service as
follows:
If to
Amick:
W. Thomas
Amick
[at the
address and fax number maintained in the Company’s files]
If to
Company:
Discovery
Laboratories, Inc.
2600
Kelly Rd., Suite 100
Warrington,
PA 18976
Tel: (215)
488-9300
Fax: (215)
488-9557
Attn: General
Counsel
13. Severability. If
any term of this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, then this Agreement, including all of the remaining
terms, will remain in full force and effect as if such invalid or unenforceable
term had never been included.
14. Amendment. No
amendment or modification of the terms or conditions of this Agreement shall be
valid unless in writing and signed by the parties hereto.
15. Successors and
Assigns. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of the Company. Amick shall not be entitled to assign any
of his rights or obligations under this Agreement.
IN WITNESS WHEREOF, this Agreement has
been executed by the parties as of the date first above written.
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DISCOVERY
LABORATORIES, INC.
|
W.
THOMAS AMICK
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|||
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By:
______________________________
|
By:
______________________________
|
|||
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John
G. Cooper,
Executive
Vice President and
Chief
Financial Officer
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Exhibit
10.2
SEPARATION OF EMPLOYMENT
AGREEMENT AND GENERAL RELEASE
THIS
SEPARATION OF EMPLOYMENT AGREEMENT AND GENERAL RELEASE (this “Agreement”) is
made as of August 13, 2009 between Discovery Laboratories, Inc. (the “Company”)
and Robert J. Capetola, Ph.D. (“Executive”) (hereinafter collectively referred
to as the “Parties”).
WHEREAS,
the Company and Executive are parties to an employment agreement dated May 4,
2006, as amended (the “Employment Agreement”);
WHEREAS,
Executive desires to resign all of his positions with the Company and Executive
and the Company wish to mutually agree on matters relating to Executive’s
resignation, on the terms set forth in this Agreement; and
NOW,
THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, and intending to be legally bound hereby, Executive and the
Company agree as follows:
1. Resignation from Employment
and the Board of Directors. As of 5:00 p.m. on the date of
this Agreement as set forth above (the “Resignation Date”), Executive hereby
resigns all employment and related job duties and responsibilities with the
Company including, without limitation, his positions as President and Chief
Executive Officer and as a member of the Board of Directors of the
Company. This resignation is the product of an agreement by the
Parties hereto and is not a result of any disagreement Executive had about the
operations, policies or practices of the Company or any of its subsidiaries or
affiliates. Terms not otherwise defined in this Agreement shall have
the meaning given to them in the Employment Agreement.
2. Severance Payments and
Benefits to Executive.
(a) Separation
Payment. On the Effective Date (as defined in Section 8(d) of
this Agreement), Company shall pay to Executive a lump sum cash payment in an
amount equal to the sum of (i) all unpaid compensation accrued through the
Resignation Date, and any unreimbursed employee business expenses (subject to
submission of appropriate documentation) (provided, that any
payment under this Section 2(a) shall not exceed the amount that otherwise would
be calculated in accordance with Section 7(a)(i) of the Employment Agreement),
plus (ii) $250,000.
(b) Periodic Severance
Payments. During the period beginning as of the Resignation
Date and ending on
May 3, 2010 (the “Severance Period”, unless terminated early under Section 2(e)
or 2(f) of this Agreement), Company shall pay to Executive an amount equal to
his Base Salary (calculated at a rate of $490,000 per annum), payable in
accordance with the Company’s normal bi-weekly payroll practices and less any
required withholdings.
(c) Severance Period
Benefits. During the period beginning as of the Resignation
Date and ending on May 3, 2010 (the “Benefits Period”, unless extended under
Section 2(e) or 2(f) of this Agreement), the Company shall provide Executive
continuation of the health (initially pursuant to the Consolidated Omnibus
Budget Reconciliation Act (“COBRA”)), life and other benefits as set forth, and
to the extent described, in Section 7(b)(iv) of the Employment
Agreement.
(d) Stock Options and Restricted
Stock. On the Effective Date, all shares of stock and all
options to acquire Company stock held by Executive shall accelerate and become
fully vested and all stock options shall continue to be exercisable for the
remainder of their stated terms. In the event of a Change of Control,
if Executive shall elect not to exercise all or any portion of his Company
options, Executive shall be treated no less favorably than the Company’s senior
executives with respect to any extension, monetization or other disposition of
such executives’ similar unexercised options in connection with the Change of
Control.
(e) Additional Severance
Payments and Benefits in the Event of a Corporate
Transaction. In the event that, prior to the expiration of the
Severance Period, the Company consummates a Corporate Transaction, as that term
is defined below, then:
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1)
|
the
periodic payments under Section 2(b) shall cease and, within 10 days from
the date of a Corporate Transaction (or, if the Corporate Transaction
consists of more than one transaction, the date of the last of such
transactions), the Company shall pay Executive a lump sum cash payment in
the amounts described in Section 7(b)(iii) of the Employment Agreement,
reduced by the aggregate of any severance payments paid to Executive
pursuant to Sections 2(a)(ii) and 2(b);
and
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|
2)
|
the
Benefits Period under Section 2(c) shall be extended for a period ending
24 months after the Resignation
Date.
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For the
purposes of this Agreement, the term “Corporate Transaction” means (i) one or
more corporate partnering or strategic alliance transactions, Business
Combinations or public or private financings that (A) are completed during the
Severance Period and (B) result in cash proceeds (net of transaction costs) to
the Company of at least $20 million received during the Severance Period or
within 90 calendar days thereafter, or (ii) an acquisition of the Company, by
Business Combination or other similar transaction, that occurs during the
Severance Period and the consideration paid to stockholders of the Company, in
cash or securities, is at least $20 million. Net proceeds shall be
calculated without taking into account any amounts received by the Company as
reimbursement for costs of development and research activities to be performed
in connection with any such transaction.
(f) Additional Severance
Payments and Benefits in the Event of a Change of Control. In
the event that, prior to the expiration of the Severance Period, the Company
consummates a Corporate Transaction that constitutes a Change of Control, as
that term is defined under the Employment Agreement, then:
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1)
|
the
periodic payments under Section 2(b) shall cease and, in lieu of the
Severance Payments provided under Section 2(e) of this Agreement, within
10 days from the date of a Change of Control, the Company shall pay
Executive a lump sum cash payment in an amount equal to the product of
2.25 times the sum of (A) the Executive’s Base Salary and (B) the Highest
Annual Bonus, reduced by the aggregate of any severance payments paid to
Executive pursuant to Sections 2(a)(ii) and 2(b);
and
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2
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2)
|
The
Benefits Period under Section 2(c) shall be extended for a period ending
27 months after the Resignation
Date.
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(g) Other Miscellaneous
Severance Matters.
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1)
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Executive
acknowledges and agrees that, from and after the date of this Agreement,
Executive shall not be entitled to any benefits or employment rights set
forth in his Employment Agreement, during the Severance Period or
otherwise, other than the benefits set forth in this
Agreement.
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2)
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In
the event of a Corporate Transaction or a Change of Control in which the
Company’s vice-presidents shall decide or otherwise be required to accept
a reduction in any severance payments payable in connection with such
transaction pursuant to their respective employment agreements then in
effect, the lump sum cash payments to be provided to Executive pursuant to
Sections 2(e) or (f) of this Agreement shall then likewise be reduced in
an amount and manner so as to constitute a substantially similar
proportional adjustment as that experienced by the Company’s
vice-presidents; provided, however, that (i) such adjustment shall be
applied solely with respect to payments that otherwise would be paid to
Executive under Sections 2(e) or (f) of this Agreement, (ii) the Company
shall promptly notify Executive that such adjustment will occur and
provide copies of the transaction documents at the time the transaction is
publicly disclosed, and (iii) under no circumstances will Executive be
required to return any money that has been previously paid to
him.
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(h) Survival of
Obligations. The obligations of the Company under this Section
2 shall survive the death of Executive. Any amounts remaining due at
the time of or after Executive’s death shall be paid on the dates set forth in
this Agreement and shall be payable to his surviving spouse or his estate or
legal representative. If the Company remains obligated to provide any
benefits after the time of Executive’s death, such benefits shall be provided to
surviving participants and/or beneficiaries under the Company’s health and
welfare and other benefit plans, in accordance with any applicable provisions of
COBRA and the provisions of such plans.
(i) Acknowledgements. All
payments made to Executive under this Agreement shall be subject to applicable
federal, state and local withholding taxes. Executive hereby
acknowledges that, under the Employment Agreement and under the Company’s
general policies and practices, Executive is not otherwise entitled to receive
the benefits described in this Agreement unless Executive signs this
Agreement. Executive further acknowledges that, other than the
foregoing payments described in this Section 2, he has received payment in
full for all of the compensation, wages, benefits and payments of any kind
otherwise due him from the Company, including compensation, bonuses,
commissions, lost wages, severance, expense reimbursements, payments to benefit
plans, accrued but unused vacation and personal or sick time as provided in the
Employment Agreement or otherwise. The Parties acknowledge that the
consideration described in Section 2 represents good, valuable, and
sufficient consideration for the mutual promises and duties set forth in this
Agreement.
3
3. Complete Release by
Executive; Indemnity by Company.
(a) Release. For
and in consideration of the payments and promises contemplated by Section 2
of this Agreement and for other good and valuable consideration as more fully
described herein, the receipt and adequacy of which is hereby acknowledged,
Executive hereby waives, releases and gives up any claim or cause of action that
Executive, Executive’s heirs, executors, administrators, successors and assigns
may have against the Company, its subsidiaries and affiliates and their employee
benefit plans and the trustees, fiduciaries and administrators of those plans,
and any of the foregoing present or past employees, officers, shareholders,
managers, directors, agents and contractors, and each of their predecessors,
successors and assigns (the “Released Parties”), based on any event that has
occurred before Executive signs this Agreement, or arising from or based upon
Executive’s employment with the Company and/or separation from employment and/or
termination of the Employment Agreement, including, but not limited to, any
claims for salary, bonuses, severance pay, vacation pay or any benefits under
the Employee Retirement Income Security Act of 1974, as amended; any claims of
harassment or discrimination based upon race, color, national origin, ancestry,
religion, marital status, sex, sexual orientation, harassment, retaliation,
citizenship status, pregnancy, leave of absence (including, but not limited to,
the Family Medical Leave Act or any other federal, state or local leave laws),
medical condition or disability, under Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Americans With Disabilities Act, Section
1981 of the Civil Rights Act of 1866, or any other federal, state or local law
prohibiting discrimination in employment; any claims of age discrimination under
the Age Discrimination in Employment Act, as amended by the Older Workers
Benefit Protection Act of 1990, or under any federal, state or local law
prohibiting age discrimination; the Worker Adjustment and Retraining
Notification Act; whistleblower claims; claims of breach of implied or express
contract, breach of promise, misrepresentation, negligence, fraud, estoppel,
defamation, infliction of emotional distress, violation of public policy,
wrongful or constructive discharge or any other employment-related tort; any
claim for costs, fees or other expenses, including attorneys’ fees; and all
claims under any other federal, state or local law relating to employment,
including the Sarbanes-Oxley Act of 2002. This waiver includes a
waiver of claims that Executive may know about and claims that Executive may not
know about. However, the foregoing waiver shall not apply to, and
Executive does not hereby waive, release or give up (i) any claim for workers’
compensation benefits, (ii) any vested benefits (if any) under the terms of any
retirement savings, insurance, or other qualified plan(s) maintained by the
Company, (iii) any right to unemployment benefits that Executive may have,
(iv) any rights that Executive may have to purchase health benefit continuation
coverage under COBRA, (v) any rights that Executive may have under this
Agreement, the Indemnification Agreement (as defined below), the Agreements
between the Company and Executive related to Executive’s Options Agreements and
Restricted Stock Agreements, and (vi) any rights of Executive under the
Company’s Certificate of Incorporation, as amended from time to time, and the
Company’s Bylaws, as amended from time to time, and any insurance policies
maintained by the Company, including directors and officers liability and
product and general liability policies.
(b) Claims. Executive
represents and warrants that Executive has not filed, commenced or lodged
against or relating to the Company, or permitted to be filed, commenced or
lodged against or relating to the Company on Executive’s behalf, any complaints,
charges, claims, actions or other proceedings of any nature or description in or
before any court, administrative agency or other forum. Executive
hereby agrees that neither Executive, nor any non-governmental person,
organization or other entity acting on Executive’s behalf, has in the past or
will in the future file any lawsuit or arbitration asserting any claim that is
waived under Section 3(a) of this Agreement. If Executive breaks this
promise and files a lawsuit or arbitration making any claim waived in this
Agreement, Executive shall pay for all costs, including reasonable attorneys’
fees, incurred by the Company in defending against any such
claim. Furthermore, Executive hereby gives up any right to individual
damages in connection with any administrative, arbitration or court proceeding
with respect to Executive’s employment with and/or termination of employment
from the Company, and if Executive is awarded money damages, Executive hereby
agrees to assign to the Company all right and interest to such money
damages. Executive affirms that he has not assigned or transferred
any claim against the Company or any of the Released Parties, nor has he
purported to do so.
4
(c) Executive
Indemnity. The Company hereby acknowledges that the
Indemnification Agreement, effective as of September 15, 2000 (“Indemnification
Agreement”), between Executive and the Company shall survive the termination of
the Employment Agreement and any expiration of the Severance Period and remain
in full force and effect in accordance with its terms.
4. Release of Executive by the
Company.
(a) In
consideration of the promises by Executive under this Agreement, including the
representations, covenants and release provided under Section 3, and for other
good and valuable consideration as more fully described herein, the Company
hereby irrevocably and unconditionally releases, waives and forever discharges
Executive from known and unknown claims, promises, causes of action or similar
rights of any type that the Company may have against Executive. However, the
foregoing waiver shall not apply to, and the Company does not hereby waive,
release or give up (i) any claim arising under the terms of any health, welfare,
equity incentive or other employee benefit plan maintained by the Company,
(ii) any rights that the Company may have under this Agreement, the
Indemnification Agreement, the Agreements between the Company and Executive
related to Executive’s Options Agreements and Restricted Stock Agreements, and
(iii) any rights of the Company to recoup reimbursement or advances to Executive
under the Company’s Certificate of Incorporation, as amended from time to time,
and the Company’s Bylaws, as amended from time to time, and any insurance
policies maintained by the Company, including directors and officers liability
and product and general liability policies .
(b) Claims. The
Company represents and warrants that the Company has not filed, commenced or
lodged against or relating to Executive any complaints, charges, claims, actions
or other proceedings of any nature or description in or before any court,
administrative agency or other forum. The Company hereby agrees that
it will not in the future file any lawsuit or arbitration asserting any claim
that is waived under Section 4(a) of this Agreement. If the Company
breaks this promise and files a lawsuit or arbitration making any claim waived
in this Agreement, the Company shall pay for all costs, including reasonable
attorneys’ fees, incurred by Executive in defending against any such
claim.
5
5. Executive’s Promises and
Representations.
(a) Employment
Separation. Executive promises never to knowingly seek employment with
the Company or its affiliates.
(b) No Admission of
Liability. Executive agrees that the payments made and other
consideration received pursuant to this Agreement are not to be construed as an
admission of legal liability by the Company and that no person or entity shall
utilize this Agreement or the consideration received pursuant to this Agreement
as evidence of any admission of liability since the Company expressly denies
liability. Executive agrees not to assert that this Agreement is an
admission of guilt or wrongdoing and acknowledges that the Released Parties do
not believe or admit that any of them has done anything
wrong. Similarly, the Company agrees that the terms of this Agreement
are not to be construed as an admission of legal liability by Executive and that
no person or entity shall utilize this Agreement or the consideration received
pursuant to this Agreement as evidence of any admission of liability since
Executive expressly denies liability. The Company agrees not to
assert that this Agreement is an admission of guilt or wrongdoing and
acknowledges that Executive does not believe or admit that he has done anything
wrong.
(c) Other
Confidentiality. Executive acknowledges that,
as a company in a highly competitive industry, the Company follows a
policy intended to fully protect its trade secrets and confidential
information (collectively, "Confidential
Information"). In the course of Executive’s employment,
Executive has had access to Confidential Information, the use or disclosure of
which would be seriously damaging to the Company. Such Confidential
Information is the Company's property and is not readily ascertainable
from public sources. Executive’s access to Confidential Information
has been essential to the performance of Executive’s duties for
the Company. Executive represents and warrants that (i) he is in
compliance with all obligations of Executive as set forth in the Proprietary
Information and Inventions Agreement, (ii) he has timely made all disclosures
required to be made by him under the Proprietary Information and Inventions
Agreement, and (iii) he has executed and delivered all documents and assignments
contemplated by the Proprietary Information and Inventions
Agreement. Executive covenants that he will comply with all
obligations that arise under the Proprietary Information and Inventions
Agreement that arise as a result of or in connection with the termination of his
employment with the Company. The Company acknowledges that Executive
has signed all documents related to the Proprietary Information and Inventions
Agreement that the Company has requested him to sign. At the
Company's reasonable request, Executive agrees to promptly make all disclosures
and execute all documents appropriate to preserve the confidentiality of,
and/or otherwise protect, the Company’s interest in, any Confidential
Information and Inventions, including with respect to trade secrets, inventor
disclosure statements and patent prosecution. Executive will promptly
surrender to the Company all documents, computer disks and hard drives, all
notes and memoranda relating to or containing Confidential
Information.
(d) Non-Disparagement. The
Parties agree that at no time will either Party disparage the other Party or
make uncomplimentary statements or remarks about the other Party (including,
with respect to the Company, any of its present or past employees, officers,
managers, and directors), to any person or entity, whether orally, in writing or
by any other means of communication. Except as may be required by
law, Executive also agrees not to at any time discuss the Company or its
business with, or comment on the Company or its business, to any employee or
other representative of any federal, state or local government or administrative
agency, self-regulatory organization, investment banking firm, newspaper,
magazine or television or radio station, or any Internet site, or any reporter,
writer or other person or entity, whether orally, in writing or by any other
means of communication. The Company agrees that it will not respond
to inquiries about Executive, except to confirm his dates of employment and
title. Notwithstanding the foregoing, the Parties shall not be
prevented from providing information in connection with, or testifying in (i) a
judicial, arbitration or other proceeding in connection with this Agreement or
under any other agreement related to the exceptions set forth in Sections 3(a)
or 4(a), or (ii) as may be required by any applicable statute, law, ordinance,
regulation, order, or rule of any federal, state, local or other governmental
agency or body, including without limitation, any securities exchange, having
jurisdiction over the Parties and the business and research and development
activities of the Company.
6
(e) Non-Competition During and
After Employment. Clause (X) of Section 4(c) of the Employment
Agreement is hereby amended in its entirety to read:
(X)
compete with the Company in the business of developing or commercializing
pulmonary surfactants, including aerosolization technologies intended for use
therewith, or any other category of compounds which forms the basis of the
Company's material products on the Resignation Date or any material products
under development on the Resignation Date,
(f) Enforcement. Executive
acknowledges that a breach or threatened breach of Section 5 (d) of this
Agreement will constitute a material breach of this Agreement and
cause the Company irreparable injury and damage. Executive therefore
agrees that, in addition to any other remedies that may be available to the
Company at law, the Company will be entitled to an injunction and/or other
equitable relief (without the requirement of posting a bond or other security)
to prevent a breach or threatened breach of such provisions and
to secure their enforcement.
(g) Return of Company
Property. Promptly after execution of this Agreement, but in
no event later than the close of business on August 24, 2009, Executive shall
return to the Company all originals and copies of all files, memoranda,
documents, records, credit cards; keys, electronically or optically stored data,
and any other property of the Company, the Company’s clients or its affiliates
in his possession, custody or control including, but not limited to, the
Company’s records, office equipment, such as computers and related equipment,
telephones, pagers, etc. At such time, at the request of the Company,
Executive shall certify that he has no property of the Company, the Company’s
clients or its affiliates in his possession or under his control. The
Company acknowledges that Executive owns the cell phone that he has used for
business purposes. After the date of this Agreement, Executive shall
be solely responsible for all expenses related to his cell phone.
(h) Cooperation and Transition
of Duties. Executive agrees to reasonably cooperate in the
transition of his duties and responsibilities as reasonably requested by the
Company including, if required, executing such customary and reasonable
documents and certifications that relate to matters arising prior to his
resignation. Executive agrees to fully cooperate with the Company and
participate in the preparation for, response to, prosecution of and/or defense
of any pending, actual or threatened litigation involving the Company, its
clients, vendors and/or its affiliates. The Company will reimburse
Executive for all reasonable out-of-pocket expenses incurred by Executive as a
result of such cooperation.
7
6. Termination.
(a) This
Agreement shall terminate upon (i) the occurrence of a Corporate Transaction or
Change of Control (whichever occurs later), effective on the closing date of
such Corporate Transaction or Change of Control, or, if the Corporate
Transaction consists of more than one transaction, the closing date of the last
of such transactions, and payment to Executive of all amounts owed to him under
this Agreement as a result of such Corporate Transaction or Change of
Control.
(b) This
Agreement may be terminated by the Company, on written notice to Executive
(stating in reasonable detail the reasons for such termination) only if
Executive materially breaches the material terms and conditions of Sections
5(c), (d) and (h) of this Agreement, Section 4(c) of the Employment Agreement
and the Proprietary Information and Inventions Agreement. Unless and
until such breach occurs, the Company shall provide to Executive the
consideration described in Section 2 of this Agreement.
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1)
|
In
the event that the Company terminates the Agreement in accordance with
this Section 6(b), the Company agrees that it shall not object to the
Executive, in his sole discretion (and Executive agrees that, if he shall
challenge the Company’s termination, he shall only do so by), moving for
expedited relief under the Commercial Rules of the AAA for a determination
as to whether or not a material breach under this Agreement has
occurred. In such event, the Company agrees that it shall
continue to make the payments, as and when due, that otherwise would have
been payable to Executive under this Agreement, and all such payments
shall be deposited into an escrow account held by
AAA.
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|
2)
|
If
it shall be determined by an arbitrator under the Commercial Rules of the
AAA, or a court of competent jurisdiction, that such a material breach has
occurred, in addition to and not in substitution for any other remedies
that the Company may have, in law or in equity, the Company shall be
entitled to recoup any payments or benefits that have been paid or
afforded to Executive under this Agreement, as well as all amounts held in
escrow by AAA.
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3)
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In
the event that the arbitrator determines that the Executive’s conduct did
not constitute a material breach of this Agreement, this Agreement shall
be deemed re-instated and all funds then held in the AAA escrow account
shall be paid to Executive (less any withholdings, which shall be returned
to the Company), and Company shall pay to Executive, within five (5) days
of the Arbitrator’s determination, interest on the amounts deposited in
the escrow account held by AAA, from the original due date until paid,
calculated at a rate of ten percent (10%) per annum. In
addition, Executive shall be entitled to the benefits set forth in Section
11 of the Employment Agreement.
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8
7. Consideration of
Agreement. Both Parties acknowledge that, before signing this
Agreement, they have carefully read this Agreement; they fully understood
it; it is written in a manner that is understandable to both of them; and they
are entering into it knowingly and voluntarily.
8. Miscellaneous.
(a) Entire
Agreement. This Agreement is the entire agreement between
Executive and the Company with respect to his resignation and the termination of
his employment with the Company. This Agreement may not be modified
or canceled in any manner except by a writing signed by both Executive and an
authorized officer of the Company. In deciding to sign this
Agreement, Executive has not relied on any statement by anyone associated with
the Company that is not contained in this Agreement. Executive
acknowledges that the Company has made no promises, assurances, or
representations of any kind to Executive with respect to his resignation and the
termination of his employment with the Company, other than those explicitly
contained in this Agreement.
(b) Binding Effect; Successors
and Assigns. This Agreement shall be binding upon, inure to
the benefit of and be enforceable by the Parties and their respective
successors, assigns (including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
or assets of the Company), spouses, heirs and personal and legal
representatives. The Company shall require and cause any successor
(whether direct or indirect, and whether by purchase, merger, consolidation or
otherwise) to all, substantially all, or a substantial part, of the business or
assets of the Company expressly to assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform if no such succession had taken place.
(c) Notices. All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given if delivered by hand
or mailed within the continental United States by first class certified mail,
return receipt requested, postage prepaid, addressed as follows:
(i)
if to the Company:
Discovery
Laboratories, Inc.
2600
Kelly Road, Suite 100
Warrington,
PA 18976
Attn:
General Counsel
(ii) if
to the Executive:
Robert J.
Capetola, Ph.D.
6097
Hidden Valley Dr.
Doylestown,
PA 18902
Addresses
may be changed by written notice sent to the other party at the last recorded
address of that party.
9
(d) Consideration
Period. Executive acknowledges that the Company has advised
him to consult with an attorney prior to executing this
Agreement. Executive also acknowledges that he has been given a
period of at least 21 days within which to consider the
Agreement. For a period of seven days following the execution of this
Agreement, Executive may revoke this Agreement, and this Agreement shall not
become effective or enforceable until the revocation period has expired, such
date being the “Effective Date” under this Agreement. If Executive
wishes to revoke this Agreement, he shall provide written notice to the Company,
attention Corporate Secretary, no later than 5:00 p.m. on August 20,
2009. Executive acknowledges and agrees that, for the purpose of this
Section 8(d), time is of the essence and that, should he fail to deliver a
revocation notice no later than 5:00 p.m. on August 20, 2009, he shall have
waived his right to revoke this Agreement.
(e) Severability. The
provisions of this Agreement shall be severable in the event that any of the
provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction or arbitrator to be
invalid, void or otherwise unenforceable, and the remaining provisions shall
remain enforceable to the fullest extent permitted by
law. Furthermore, to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each portion of this Agreement
containing any provision held to be invalid, void or otherwise unenforceable
that is not itself invalid, void or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable. Notwithstanding the foregoing, if any of Executive’s
release, representations or covenants contained in Section 3 of this Agreement
are declared to be invalid, illegal, unenforceable or barred for any reason
whatsoever, the Company shall have the right to consider its obligations under
this Agreement to be nullified and, in such case, the Company may cease
providing any payments or benefits that otherwise may be due under this
Agreement. In such event, however, Executive shall not be obligated
to return any payments or benefits received prior to the date of such
declaration.
(f) Interpretation and Governing
Law. This Agreement shall be construed as a whole according to
its fair meaning. It shall not be construed strictly for or against
Executive or the Company. This Agreement shall be governed by the
statutes and common law of the Commonwealth of Pennsylvania, excluding its
choice of law statutes and common law.
(g) Negotiation;
Arbitration. If the Parties are unable to resolve any
controversy, claim or dispute of whatever nature between Executive and the
Company arising out of or related to this Agreement or the construction
interpretation, performance, breach, termination, enforceability or validity of
this Agreement (herein a “Dispute”) then the Dispute shall be settled by final
and binding arbitration in accordance with the provisions of Section 15 of the
Employment Agreement. The provisions of Section 11 of the Employment
Agreement shall not be applicable to any such proceeding.
(h) Company
Representations. The Company represents and warrants as
follows: (a) it is a corporation validly existing and in good standing
under the laws of the State of Delaware, (b) it has full corporate power to
enter into and perform its obligations under this Agreement and has obtained all
necessary consents related thereto, and (c) this Agreement has been
duly executed and delivered by it and is binding and enforceable against it in
accordance with its terms.
10
(i) Headings. The
headings to the Sections of this Agreement are for convenience of reference
only and shall not be given any effect in the construction or interpretation of
this Agreement.
(j) Counterparts. This
Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be taken to be an original, but such counterparts
shall together constitute but one and the same document. One or more
counterparts of this Agreement may be delivered by via telecopy or other
electronic means, with the intention that they shall have the same effect as an
original counterpart of this Agreement.
EXECUTIVE
IS ADVISED TO READ THIS AGREEMENT AND CAREFULLY CONSIDER ALL OF ITS
PROVISIONS BEFORE SIGNING IT. IT INCLUDES A RELEASE OF KNOWN AND
UNKNOWN CLAIMS.
[Signatures
appear on the next page.]
11
IN
WITNESS WHEREOF and intending to be legally bound, Executive and the Company
have executed this Agreement on the dates indicated below:
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EXECUTIVE
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|||
| Robert J. Capetola, Ph.D. | |||
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DISCOVERY
LABORATORIES, INC.
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|||
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By:
|
W.
Thomas Amick,
Chairman
of the Board
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||
12
Exhibit
99.1
Discovery
Labs Announces Date of 2009 Annual Shareholder Meeting
Warrington, PA — September 4, 2009 —
Discovery Laboratories, Inc. (Nasdaq: DSCO), a biotechnology company
developing its proprietary KL4 surfactant
technology to improve respiratory critical care medicine, today announced that
its Annual Meeting of Stockholders will be held on Monday, December 7, 2009.
Discovery Labs expects to mail its definitive proxy statement to all
stockholders of record on or about October 21, 2009.
Rule
14a-8 Stockholder Proposal Deadline
The date
of the 2009 annual meeting will be more than 30 days after the anniversary of
the 2008 annual meeting. Pursuant to Rule 14a-8 under the
Securities Exchange Act, stockholders may present proposals for inclusion in the
Company’s proxy statement for the 2009 annual meeting by submitting their
proposals to the Company a reasonable time before the Company begins to print
and send its proxy materials. The Company’s Board of Directors has set September
15, 2009 as the deadline for receipt of stockholder proposals pursuant to
Rule 14a-8. In order for a proposal under Rule 14a-8 to be
considered timely, it must be received by the Company on or prior to September
15, 2009, at the Company’s principal executive offices at 2600 Kelly Rd., Suite
100, Warrington, PA 18976 and be directed to the attention of the Corporate
Secretary. All stockholder proposals must be in compliance with applicable
laws and regulations in order to be considered for inclusion in the proxy
statement for the 2009 annual meeting.
Bylaws
Advance Notice Deadline
Under the
Company’s By-Laws, stockholders may also present a proposal or director
nomination at the 2009 annual meeting if advance written notice is timely given
to the Secretary of the Company, at the Company’s principal executive offices,
in accordance with the Company’s By-Laws. To be timely, notice by a
stockholder of any proposal or nomination must be provided not later than the
close of business on September 15, 2009. The Company’s By-Laws specify
requirements relating to the content of the notice that stockholders must
provide.
About
Discovery Labs
Discovery
Laboratories, Inc. is a biotechnology company developing 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 without limitation, any relating to the
second half of the Company’s fiscal year, 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: risks
relating to the rigorous regulatory requirements required for approval of any
drug or drug-device combination products that Discovery Labs may develop,
including that: (i) Discovery Labs and the U.S. Food and Drug Administration
(FDA) or other regulatory authorities will not be able to agree on the matters
raised during regulatory reviews, or Discovery Labs may be required to conduct
significant additional activities to potentially gain approval of its product
candidates, if ever, (ii) the FDA or other regulatory authorities may not
accept or may withhold or delay consideration of any of Discovery Labs’
applications, or may not approve or may limit approval of Discovery Labs’
products to particular indications or impose unanticipated label
limitations, and (iii)
changes in the national
or international political and regulatory environment may make it more difficult
to gain FDA or other regulatory approval; risks relating to Discovery Labs’
research and development activities, including (a) time-consuming and expensive
pre-clinical studies, clinical trials and other efforts, which may be subject to
potentially significant delays or regulatory holds, or fail, and (b) the need
for sophisticated and extensive analytical methodologies, including an
acceptable biological activity test, if required, as well as other quality
control release and stability tests to satisfy the requirements of the
regulatory authorities; risks relating to Discovery Labs’ ability to develop and
manufacture drug products and capillary aerosolization systems for clinical
studies, and, if approved, for commercialization of drug and combination
drug-device products, including risks of technology transfers to contract
manufacturers and problems or delays encountered by Discovery Labs, its contract
manufacturers or suppliers in manufacturing drug products, drug substances and
capillary aerosolization systems on a timely basis or in an amount sufficient to
support Discovery Labs’ development efforts and, if approved, commercialization;
risks that (a) market conditions, the competitive landscape or otherwise, may
make it difficult to launch and profitably sell products, (b) Discovery Labs may
be unable to identify potential strategic partners or collaborators to market
its products, if approved, in a timely manner, if at all, and (c) Discovery
Labs’ products will not gain market acceptance by physicians, patients,
healthcare payers and others in the medical community; the risk that Discovery
Labs or its strategic partners or collaborators will not be able to attract or
maintain qualified personnel; the risk that Discovery Labs will not be able in a
changing financial market to raise additional capital or enter into strategic
alliances or collaboration agreements, or that the ongoing credit crisis will
adversely affect the ability of Discovery Labs to fund its activities, or that
additional financings could result in substantial equity dilution; the risk that
Discovery Labs will not be able to access credit from its committed equity
financing facilities, or that the share price at which Discovery Labs may access
the facilities from time to time will not enable Discovery Labs to access the
full dollar amount potentially available under the facilities; the risk that
Discovery Labs will be unable to maintain The Nasdaq Global Market listing
requirements, causing the price of Discovery Labs’ common stock to decline; the
risk that recurring losses, negative cash flows and the inability to raise
additional capital could threaten Discovery Labs’ ability to continue as a going
concern; the risks that Discovery Labs may be unable to maintain and
protect the patents and licenses related to its products, or other companies may
develop competing therapies and/or technologies, or health care reform may
adversely affect Discovery Labs; risks of legal proceedings, including
securities actions and product liability claims; risks relating to reimbursement
and health care reform; and other risks and uncertainties 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:
Lisa
Caperelli, Investor Relations
215-488-9413