As filed
with the Securities and Exchange Commission on September 29, 2010
Registration
No. 333-_________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
DISCOVERY
LABORATORIES, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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94-3171943
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(State
or Other Jurisdiction of Incorporation)
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(I.R.S.
Employer Identification Number)
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2600
Kelly Road, Suite 100
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Warrington,
Pennsylvania 18976-3622
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(Address,
Including Zip Code and Telephone Number, Including Area Code, of Registrant’s
Principal Executive Offices)
Discovery
Laboratories, Inc. 401(k) Plan
(Full
title of the plan)
David L.
Lopez, C.P.A., Esq.
Executive
Vice President, General Counsel
Discovery
Laboratories, Inc.
2600
Kelly Road, Suite 100
Warrington,
Pennsylvania 18976
(215)
488-9300
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copies
to:
Ira L.
Kotel, Esq.
Sonnenschein
Nath & Rosenthal LLP
Two World
Financial Center
New York,
New York 10281
(212)
768-6700
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
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Large
accelerated filer o
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Accelerated
filer x
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Non-accelerated
filer o (Do not check if
a smaller reporting company
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Smaller
reporting company x
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CALCULATION
OF REGISTRATION FEE
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Title
of Securities
to
be Registered
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Amount
to be
Registered(1)
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Proposed
Maximum Offering Price
Per
Share(2)
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Proposed
Maximum Aggregate Offering Price(2)
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Amount
of
Registration
Fee
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Common
Stock, $0.001 par value
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1,300,000
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$0.23
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$299,000
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$21.32
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(1)
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Pursuant
to Rule 416 promulgated under the Securities Act of 1933, as amended, this
registration statement shall be deemed to cover any additional shares of
common stock, par value $0.001 per share, that become issuable under the
401(k) Plan by reason of any stock splits, stock dividends or similar
transactions. In addition, this registration statement also
covers an indeterminate amount of interests to be offered or sold pursuant
to the Discovery Laboratories Inc. 401(k)
Plan.
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(2)
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Estimated
solely for the purpose of calculating the registration fee pursuant to
Rules 457(c) and (h) promulgated under the Securities Act of 1933, as
amended, by taking the average of the high and low sales price per share
of the common stock on The Nasdaq Capital Market on September 23,
2010.
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REGISTRATION OF
ADDITIONAL SECURITIES
This
registration statement is being filed pursuant to General Instruction E of Form
S-8 under the Securities Act of 1933, as amended (the “Securities Act”), to
register an additional 1,300,000 shares of our common stock, par value $0.001
per share, that may be issued pursuant to the 401(k) Plan (the “Plan”) of
Discovery Laboratories, Inc. (the “Company”) plus an indeterminate amount of
interests in the Plan. The Company previously registered shares of
its common stock for issuance under the Plan on registration statements on Form
S-8 filed with the Securities and Exchange Commission (the “Commission”) on
November 12, 2003 (File No. 333-110412), September 28, 2006 (File No.
333-137643), December 23, 2008 (File No. 333-156443), January 22, 2010 (File No.
333-164470) and March 31, 2010 (File No. 333-165809). Pursuant to
General Instruction E to Form S-8, the contents of such registration statements,
including all exhibits thereto as applicable, are incorporated herein by
reference.
All
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all such securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be part hereof
from the date of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein or in any
other subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
registration statement.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
8. Exhibits.
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Exhibit
No.
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Description
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Method of
Filing
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4.1
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Form
of Discovery Laboratories Inc. 401(k) Plan
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Incorporated
by reference to Exhibit 4.1 to the Registrant’s Registration Statement on
Form S-8 filed on January 22, 2010 (File No.
333-164470).
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5.1
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Opinion
of Sonnenschein Nath & Rosenthal LLP, legal counsel.*
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Filed
herewith.
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23.1
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Consent
of Sonnenschein Nath & Rosenthal LLP (included in Exhibit
5.1)
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Filed
herewith.
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23.2
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Consent
of Ernst & Young LLP, independent registered public accounting
firm.
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Filed
herewith.
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24.1
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Powers
of Attorney (included in signature page to this registration
statement).
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Filed
herewith.
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* In
accordance with Item 8 of Form S-8, and in lieu of the opinion of counsel or
determination contemplated by Item 601(b)(5) of Regulation S-K, the Company
hereby undertakes that it will submit the Plan and all amendments thereto to the
Internal Revenue Service (“IRS”) in a timely manner, and that it will make all
changes required by the IRS in order to qualify the Plan.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-8 and has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Warrington,
Commonwealth of Pennsylvania on this 28th day
of September, 2010.
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DISCOVERY
LABORATORIES, INC.
(Registrant)
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By:
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/s/ W. Thomas Amick | |
| W. Thomas Amick | |||
| interim Chief Executive Officer | |||
POWER
OF ATTORNEY
We, the
undersigned officers and directors of Discovery Laboratories, Inc., and each of
us, do hereby constitute and appoint each of W. Thomas Amick, and David L.
Lopez, CPA., Esq., or any of them, each acting alone, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
to do any and all acts and things in our name, place and stead, in any and all
capacities, in connection with this registration statement on Form S-8 under the
Securities, or any registration statement for the same offering that is to be
effective upon filing under the Securities Act, including, without limitation,
to sign for us or any of us in our names in the capacities indicated below any
and all amendments or supplements to this registration statement, including any
and all post-effective amendments to the registration statement, and to sign any
and all additional registration statements relating to the same offering of
securities as this registration statement that are filed pursuant to Rule 462(b)
under the Securities Act, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and any applicable securities exchange or securities self-regulatory
body, granting unto said attorneys-in-fact and agents, each acting alone, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this registration statement has been
signed by the following persons in the capacities indicated on the dates
indicated.
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Signature
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Name & Title
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Date
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/s/ W. Thomas Amick
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W.
Thomas Amick
Chairman
of the Board of Directors and interim
Chief Executive Officer
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September
28, 2010
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/s/ John G. Cooper
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John
G. Cooper
President
and Chief Financial Officer
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September
28, 2010
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| /s/ John Tattory |
John
Tattory
Vice
President, Finance and Controller (Principal Accounting
Officer)
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September 28, 2010 |
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/s/ Herbert McDade
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Herbert
McDade, Jr.
Director
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September
28, 2010
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/s/ Max Link
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Max
Link, Ph.D.
Director
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September
28, 2010
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Antonio
Esteve, Ph.D.
Director
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/s/ Marvin E. Rosenthale
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Marvin
E. Rosenthale, Ph.D.
Director
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September
28, 2010
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Bruce
Peacock
Director
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Exhibit
5.1
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Two
World Financial Center
New
York, NY 10281-1008
212.768.6700
212.768.6800
fax
www.sonnenschein.com
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September
28, 2010
Board of
Directors
Discovery
Laboratories, Inc.
2600
Kelly Road, Suite 100
Warrington,
Pennsylvania 18976-3622
Re: Discovery Laboratories,
Inc. 401(k) Plan
Ladies
and Gentlemen:
We
have acted as counsel for Discovery Laboratories, Inc., a Delaware corporation
(the “Company”), in
connection with the preparation of the Company’s registration statement on Form
S-8, and any amendments thereto (the “Registration
Statement”), as filed with the Securities and Exchange
Commission (the “Commission”) under
the Securities Act of 1933, as amended (the “Securities Act”), for
the registration under the Securities Act of up to 1,300,000 shares (the “Shares”) of the
Company’s common stock, par value $0.001 per share (the “Common Stock”) to be
issued pursuant to the Company’s 401(k) Plan (the “Plan”).
In
connection with this opinion, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of (i) the Plan; (ii) the Company’s
Restated Certificate of Incorporation, as amended; (iii) the Company’s Amended
and Restated By-Laws; and (iv) resolutions adopted by the Company’s Board of
Directors on September 10, 2010. We have also examined originals or copies,
certified or otherwise identified to our satisfaction, of such records of the
Company and such agreements, certificates of public officials, certificates of
officers or other representatives of the Company, and such other documents,
certificates and records as we have deemed necessary or appropriate as a basis
for the opinions set forth herein. As to various questions of fact material to
this opinion, we have also relied upon representations and warranties of the
Company and upon such certificates and other instruments of officers of the
Company and public officials furnished to us by the Company, in each case
without independent investigation or verification of their
accuracy. We have also assumed that there are no agreements or
understandings between or among the Company and any participants in the Plans
that would expand, modify or otherwise affect the terms of the Plans or the
respective rights or obligations of the participants thereunder, and that each
award agreement setting forth the terms of each grant of options or other awards
under the Plans is consistent with the Plans and has been duly authorized and
validly executed and delivered by the parties thereto.
In our
examination, we have assumed (i) the genuineness of all signatures; (ii) the
authenticity of all documents submitted to us as originals; (iii) the conformity
to original documents of all documents submitted to us as certified, conformed
or photostatic, electronic or facsimile copies and the authenticity of the
originals of such documents; (iv) the authority of all persons signing any
document; (v) the enforceability of all the documents and agreements we have
reviewed in accordance with their respective terms against the parties thereto;
and (vi) the truth and accuracy of all matters of fact set forth in all
certificates and other instruments furnished to us.
Based
upon the foregoing, and subject to the assumptions, qualifications and
limitations set forth herein, we are of the opinion that the Shares, when issued
and paid for in accordance with the terms of the Plan, will be validly issued,
fully paid and non-assessable.
No
opinion is expressed herein with respect to any laws other than Delaware
corporate law (which includes the Delaware General Corporation Law and
applicable provisions of the Delaware constitution, as well as reported judicial
opinions interpreting same). No opinion is expressed as to the effect that the
law of any other jurisdiction may have upon the subject matter of the opinion
expressed herein under conflicts of law principles, rules and regulations or
otherwise.
This
opinion is expressed as of the date hereof. We assume no obligation
to supplement this letter if any applicable laws change after the date hereof or
if we become aware of any new facts that might affect any view expressed herein
after the date hereof.
We
hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration
Statement. In giving this consent, we do not hereby admit that we are
within the category of persons whose consent is required by Section 7 of the
Securities Act or the rules and regulations promulgated thereunder by the
Commission.
We are
delivering this opinion to you at your request in accordance with the
requirements on Item 601(b)(5) of Regulation S-K under the Securities Act, and
not for any other purpose. We call your attention to the fact that
Ira L. Kotel, a member of this firm, is a holder of shares of Common
Stock.
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Very
truly yours,
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/s/ Sonnenschein Nath
& Rosenthal LLP
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Sonnenschein
Nath & Rosenthal LLP
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Exhibit
23.2
Consent
of Independent Registered Public Accounting Firm
We
consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the Discovery Laboratories, Inc. 401(k) Plan of
our reports dated March 10, 2010, with respect to the consolidated financial
statements of Discovery Laboratories, Inc. included in its Annual Report (Form
10-K) for the year ended December 31, 2009, and the effectiveness of internal
control over financial reporting of Discovery Laboratories, Inc. filed with the
Securities and Exchange Commission.
/s/ Ernst
& Young LLP
Philadelphia,
Pennsylvania
September
27, 2010