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
December
7, 2009
Date of
Report (Date of earliest event reported)
Discovery
Laboratories, Inc.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
000-26422
|
94-3171943
|
|
(State
or other jurisdiction
of
incorporation)
|
(Commission
File Number)
|
(IRS
Employer
Identification
Number)
|
2600
Kelly Road, Suite 100
Warrington,
Pennsylvania 18976
(Address
of principal executive offices)
(215)
488-9300
(Registrant's
telephone number, including area code)
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
5.03. Amendments to Articles of
Incorporation or Bylaws; Change in Fiscal Year.
(a) Amendment
to Articles of Incorporation
On
December 7, 2009, the stockholders of Discovery Laboratories, Inc. (the
“Company”) voted at the 2009 Annual Meeting of Stockholders in favor of the
Board of Directors’ proposal to amend the Company’s Certificate of Incorporation
to increase the number of authorized shares of common stock from 180 million
shares to 380 million shares. An Amended and Restated Certificate of
Incorporation effecting the foregoing amendment to the Certificate of
Incorporation was filed with the Delaware Secretary of State’s Corporation
Department on December 9, 2009 and became effective immediately upon
filing.
The full
text of the Amended and Restated Certificate of Incorporation is attached to
this Form
8-K as
Exhibit 3.1 hereto and is incorporated herein by reference in its
entirety.
Item
8.01. Other
Events.
On
December 7, 2009, the Company held its Annual Meeting of
Stockholders. The following matters were voted on by the
stockholders: (i) the election of five directors, (ii) ratification
of the appointment of Ernst & Young LLP as the Company independent
registered public accounting firm for the Company’s fiscal year ending December
31, 2009; (iii) an amendment to the Company’s Restated Certificate of
Incorporation to increase the number of authorized shares of common stock
available for issuance from 180 million to 380 million; (iv) an amendment to the
Company’s Restated Certificate of Incorporation to permit stockholder action to
be taken only at a duly called annual or special meeting of stockholders and to
eliminate stockholder action by written consent, and (v) an amendment to the
Company’s 2007 Long-Term Incentive Plan to increase the number of shares of
Common Stock reserved for issuance under the Plan by 3.4 million shares, from
8,500,000 shares to 11,900,000 shares. The results of the stockholder
votes are as follows:
(i) Election
of Directors: each of the nominees for Director was elected by a plurality of
the votes cast by stockholders as follows:
|
For
|
Withheld
|
|
|
W.
Thomas Amick
|
80,349,177
|
16,402,852
|
|
Antonio
Esteve, Ph.D.
|
74,106,021
|
22,646,008
|
|
Max
Link, Ph.D.
|
75,648,521
|
21,103,508
|
|
Herbert
H. McDade, Jr.
|
73,171,152
|
23,580,877
|
|
Marvin
E. Rosenthale, Ph.D.
|
74,883,990
|
21,868,039
|
(ii) Ratification
of the appointment of Ernst & Young LLP as the Company’s Independent
Registered Public Accounting Firm: this proposal was approved by a majority of
shares present at the meeting and was, therefore, adopted. The vote
was as follows:
|
For
|
Against
|
Abstain
|
|
90,050,012
|
5,979,070
|
722,947
|
(iii) Amendment
to the Company’s Restated Certificate of Incorporation to increase the number of
authorized shares of common stock available for issuance from 180 million to 380
million: this proposal was approved by a majority of the outstanding shares
eligible to vote at the meeting and was, therefore, adopted. The vote
was as follows:
|
For
|
Against
|
Abstain
|
|
63,748,463
|
32,559,244
|
444,322
|
(iv) Amendment
to the Company’s Restated Certificate of Incorporation to permit stockholder
action to be taken only at a duly called annual or special meeting of
stockholders and to eliminate stockholder action by written
consent: This proposal was not approved by a majority of the
outstanding shares eligible to vote and was, therefore, not
adopted. The vote was as follows:
|
For
|
Against
|
Abstain
|
|
56,793,714
|
38,825,329
|
1,132,986
|
(v) Amendment
to the Company’s 2007 Long-Term Incentive Plan to increase the number of shares
of Common Stock reserved for issuance under the Plan by 3.4 million shares, from
8,500,000 shares to 11,900,000 shares: this proposal was not approved by a majority
of shares voting on the proposal at the meeting and was, therefore, not
adopted. The vote was as follows:
|
For
|
Against
|
Abstain
|
Not
Voted
|
|
18,573,101
|
21,571,155
|
220,978
|
56,386,795
|
Item
9.01. Financial Statements and
Exhibits.
| (d) | Exhibits | |
|
|
3.1
|
Amended
and Restated Certificate of Incorporation effective December 9,
2009
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
| Discovery Laboratories, Inc. | |||
|
|
By:
|
/s/ W. Thomas Amick | |
| Name: W. Thomas Amick | |||
|
Title: Chairman
of the Board and interim
|
|||
| Chief Executive Officer | |||
Date: December
9, 2009
Exhibit
3.1
AMENDED
AND RESTATED CERTIFICATE OF INCORPORATION
OF
DISCOVERY
LABORATORIES, INC.
The
Corporation was originally incorporated on November 6, 1992, under the name
“Ansan, Inc.”
FIRST: The
name of the corporation (hereinafter called the "Corporation") is Discovery
Laboratories, Inc.
SECOND: The
address, including street, number, city, and county, of the registered office of
the Corporation in the State of Delaware is 1209 Orange Street, City of
Wilmington, County of New Castle; and the name of the registered agent of the
Corporation in the State of Delaware at such address is The Corporation Trust
Company.
THIRD: The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH: Authorization.
The total number of shares of all classes of stock which the Corporation shall
have authority to issue is 385,000,000 consisting of 380,000,000 shares of
common stock, par value $.001 per share (the “Common Stock”), and 5,000,000
shares of preferred stock, par value $.001 per share (the “Preferred
Stock”).
The Board
of Directors may divide the Preferred Stock into any number of series, fix the
designation and number of shares of each such series, and determine or change
the designation, relative rights, preferences, and limitations of any series of
Preferred Stock. The Board of Directors (within the limits and
restrictions of any resolutions adopted by it originally fixing the number of
any shares of any series of Preferred Stock) may increase or decrease the number
of shares initially fixed for any series, but no such decrease shall reduce the
number below the number of shares then outstanding and shares duly reserved for
issuance.
FIFTH: In
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors shall have the power, both before and after receipt of any payment
for any of the Corporation's capital stock, to adopt, amend, repeal or otherwise
alter the Bylaws of the Corporation without any action on the part of the
stockholders; provided, however, that the grant of such power to the Board of
Directors shall not divest the stockholders of nor limit their power to adopt,
amend, repeal, or otherwise alter the Bylaws.
SIXTH: Elections
of directors need not be by written ballot unless the Bylaws of the Corporation
shall so provide.
SEVENTH: The
Corporation reserves the rights to adopt, repeal, rescind or amend in any
respect any provisions contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by applicable law, and all rights conferred
on stockholders herein are granted subject to this reservation.
EIGHTH: A
director of the Corporation shall, to the fullest extent permitted by the
General Corporation Law of the State of Delaware as it now exists or as it may
hereafter be amended, not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. Neither
any amendment nor repeal of this Article EIGHTH, nor the adoption of any
provision of this Amended and Restated Certificate of Incorporation inconsistent
with this Article EIGHTH, shall eliminate or reduce the effect of this Article
EIGHTH in respect of any matter occurring or any cause of action, suit or claim
that, but for this Article EIGHTH, would accrue or arise prior to such
amendment, repeal or adoption of an inconsistent provision.
NINTH: This
Amended and Restated Certificate of Incorporation was duly adopted in accordance
with the provisions of Section 245 of the General Corporation Law of the State
of Delaware.
IN
WITNESS WHEREOF, Discovery Laboratories, Inc., has caused this Amended and
Restated Certificate of Incorporation to be signed by its duly authorized
officer this 9th day of December 2009.
| DISCOVERY LABORATORIES, INC. | |||
|
|
By:
|
/s/ W. Thomas Amick | |
| Name: W. Thomas Amick | |||
|
Title: Chairman
of the Board and interim Chief Executive Officer
|
|||