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
November
30, 2010
Date of
Report (Date of earliest event reported)
Discovery
Laboratories, Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
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000-26422
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94-3171943
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(State
or other jurisdiction
of
incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
Number)
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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:
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o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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x
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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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
3.01.
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Notice of Delisting or
Failure to Satisfy a Continued Listing Rule or Standard; Transfer of
Listing.
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On December 3, 2010, Discovery
Laboratories, Inc. (the “Company”) issued a press release announcing that it has
received from The Nasdaq Stock Market, LLC (“Nasdaq”) a Staff Determination that
the Company is not in compliance with Nasdaq Listing Rule 5550(a)(2) (the
“Minimum Bid Price Rule”), and that the Company’s common stock listed on The
NASDAQ Capital Market® (the “Capital Market”) is therefore subject to delisting.
The Company had previously announced that on December 2, 2009, the Company
received a delisting notification from The NASDAQ Global Market® (“Global
Market”) indicating that the bid price for the common stock had failed to close
at or above $1.00 per share for more than 30 consecutive trading days and, as a
result, the Company was not in compliance with Nasdaq Listing Rule
5450(a)(1) (which is the Global Market version of the Minimum Bid Price
Rule). In accordance with Nasdaq Listing Rule 5810(c)(3)(A), the
Company was provided 180 calendar days, or until June 1, 2010, to regain
compliance with the Minimum Bid Price Rule, which would occur if the bid price
of the Company’s common stock closed at or above $1.00 for 10 consecutive
trading days.
As the bid price of the Company’s
common stock did not close at or above $1.00 per share for 10 consecutive
trading days within the initial grace period, to avoid a second delisting
notification, the Company filed an application to transfer the listing of its
common stock from the Global Market to the Capital Market. In
addition, in connection with the transfer to the Capital Market and in
accordance with Nasdaq Listing Rule 5810(c)(3)(A), on June 2, 2010 Nasdaq
notified the Company that it had granted the Company an additional 180 calendar
days, or until November 29, 2010, to regain compliance with the Minimum Bid
Price Rule. As the bid
price of the common stock did not close at or above $1.00 per share during this
additional grace period for 10 consecutive trading days, the Company has not
established compliance with the Minimum Bid Price Rule. The Company intends to
appeal the delisting determination to a Nasdaq Listing Qualifications Panel (the
“Panel”) pursuant to the procedures set forth in the Nasdaq Listing Rule 5800
Series. The appeal will stay the delisting of the common stock until after the
Panel has rendered its decision. There can be no assurance that the Panel will
grant the Company’s request for continued listing on the Capital
Market.
A copy of the press release is filed as
Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by
reference.
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Item
8.01.
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Other
Events.
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The
information set forth in Item 3.01 of this Report is incorporated by reference
into this Item 8.01. This Report and the Exhibit attached hereto may be deemed
to be solicitation material regarding the Company’s 2010 Annual Meeting of
Stockholders (the "Annual Meeting"). In connection with the Annual Meeting, the
Company has filed and will file relevant materials and documents with the
Securities and Exchange Commission ("SEC"), including a proxy statement that has
been mailed to the stockholders of the Company. Investors and the public are
urged to read these materials carefully and in their entirety as they become
available because they will contain important information about the Company and
the Annual Meeting. The proxy statement and other relevant materials (when they
become available), and any and all documents filed with the SEC, may be obtained
free of charge at the SEC’s web site at www.sec.gov. In
addition, investors and the public may obtain free copies of the documents filed
with the SEC by the Company by directing a written request addressed to
Discovery Laboratories, Inc., Attn.: Investor Relations, 2600 Kelly Road, Suite
100, Warrington, Pennsylvania 18976-3622. The proxy statement also can be
viewed, together with other materials related to the Annual Meeting, at www.ezodproxy.com/discoverylabs/2010.
The directors, executive officers and employees of the Company may be deemed to
be participants in the solicitation of proxies in connection with the Annual
Meeting. Information regarding the special interests of these directors,
executive officers and employees in the Annual Meeting, if any, will be included
in the proxy statement referred to above.
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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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99.1
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Press
release dated December 3, 2010.
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2
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.
3
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. | |||
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By:
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/s/ W. Thomas Amick | |
| Name: | W. Thomas Amick | ||
| Title: | Chief Executive Officer | ||
Date:
December 3, 2010
4
Discovery
Labs Receives Nasdaq Delisting Notification
Related
to Minimum Bid Price and Plans to File Request for Hearing
Company
Proposal at Annual Meeting of Stockholders supports plan for
potential
continued listing on The NASDAQ Capital Market®
Warrington, PA – December 3,
2010 — Discovery
Laboratories, Inc. (Nasdaq: DSCO), announced today that, on November 30,
2010, the Company received a Staff Determination letter from The Nasdaq Stock
Market indicating that the Company has not established compliance with Nasdaq
Listing Rule 5550(a)(2) (“Minimum Bid Price Rule”) because the Company’s common
stock did not maintain a minimum closing bid price of $1.00 per share over a
period of 10 consecutive business days ending on or prior to November 29,
2010. As a result, the Company’s common stock is subject to delisting
from The NASDAQ Capital Market® (Nasdaq Capital Market). The Company
plans to request a hearing before a Nasdaq Listing Qualifications Panel to
review the Staff Determination, which request will stay the delisting of the
Company’s common stock pending the Panel’s decision. At the hearing,
the Company will present a plan for achieving compliance with the Nasdaq listing
requirements. There can be no assurance that the Panel will grant the
Company’s request for continued listing on the Nasdaq Capital
Market.
The
Company is currently in compliance with all Nasdaq listing requirements other
than the Minimum Bid Price Rule. In that regard, the Company has
presented to its stockholders for approval at the upcoming Annual Meeting of
Stockholders to be held on December 21, 2010, a proposal (Proposal 3) to provide
the Company’s Board of Directors with authority to effect a share consolidation,
or reverse split, of the Company’s common stock at a ratio of 1-for-15, on the
terms described in the Company’s proxy statement. In presenting
Proposal 3 for approval, the Board considered, among other things:
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·
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Effecting
a reverse split would, at least initially, return the Company’s stock
price to well above $1.00 per share, which would support continued listing
of the Company’s common stock on the Nasdaq Capital
Market.
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·
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The
Company believes that continued listing on the Nasdaq Capital Market would
enhance the Company’s prospects of securing capital necessary to achieve
the Company’s key business objectives, including potentially gaining U.S.
Food and Drug Administration (FDA) approval in 2011 for the Company’s lead
product, Surfaxin® for the prevention of respiratory distress syndrome
(RDS) in premature infants.
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·
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The
Company believes that current and prospective investors and potential
strategic partners would view an investment in the Company’s common stock
more favorably if it were listed on the Nasdaq Capital Market than if it
were traded on the Over-The-Counter (“OTC”) Bulletin
Board.
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·
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If
the Company’s common stock were delisted from the Nasdaq Capital Market,
the Company would no longer be eligible to effect financings with
registration statements on Form S-3, which would make it more difficult
and more expensive (i) to raise additional capital through limited primary
and secondary offerings and (ii) to update and maintain the effectiveness
of the available forms of registration statements going
forward.
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If
Proposal 3 is not approved by the Company’s stockholders at the Company’s Annual
Meeting of Stockholders, the Company may be unable to maintain the listing of
its common stock on the Nasdaq Capital Market, which could jeopardize the
Company’s ability to continue to fund its operations, gain FDA approval for
Surfaxin, and continue investing in its research and development programs,
including Surfaxin LS™, a lyophilized (dry powdered) formulation, and Aerosurf®,
the Company’s initial aerosolized KL4
surfactant. Such a result could have a material adverse effect on the
Company, its financial condition and its business operations.
If the
Panel were to deny the Company’s request for continued listing, the liquidity
and marketability of the Company’s common stock would be adversely
affected. Following delisting, the Company’s common stock would be
eligible for quotation on the Over-The-Counter (“OTC”) Bulletin Board, another
over-the-counter quotation system or the “pink sheets,” but only after a market
maker, not the Company, made application for that purpose.
Background
On
December 2, 2009, the Company received a delisting notification from The NASDAQ
Global Market (Global Market) indicating that the Company’s common stock failed
to achieve a minimum closing bid price of $1.00 per share for more than 30
consecutive trading days and, as a result, the Company was not in compliance
with the Minimum Bid Price Rule. The delisting notification also
granted the Company 180 calendar days, or until June 1, 2010, to regain
compliance with the Minimum Bid Price Rule, which would occur if the Company’s
common stock closed above $1.00 per share for 10 consecutive trading
days. Subsequently, on June 2, 2010, the Company transferred the
listing of its common stock to The Nasdaq Capital Market and, under applicable
rules, was afforded an additional period of 180 calendar days, or until
November 29, 2010, to regain compliance with the Minimum Bid Price
Rule. The Nasdaq Capital Market operates in substantially the same
manner as the Global Market. The Company’s trading symbol continued
to be “DSCO” and the trading of the Company’s common stock was unaffected by the
transfer.
Disclosure
Notice:
The
discussion in this press release of the Company’s Proposal 3 to authorize a
reverse split is modified in its entirety be the description of Proposal 3 and
the related Proposal 4 contained in the Company’s proxy statement, which was
filed with the SEC on November 15, 2010, and can be viewed, together with other
materials related to the Annual Meeting of Stockholders, at www.ezodproxy.com/discoverylabs/2010. The
reader is encouraged to read the entire description of Proposal 3 and Proposal 4
in the proxy statement, including the sections titled “Certain Risks Associated
with a Reverse Split” and “Effects of a Reverse Split.” A stockholder
with questions or needing assistance in voting shares of the Company’s common
stock is urged to call the firm assisting the Company in the solicitation of
proxies:
Morrow
& Co., LLC
470 West
Ave.
Stamford,
CT 06902
1-800-483-1314.
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 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 with respect to the
potential continued listing of the Company’s common stock on the Nasdaq Capital
Market, the potential approval in the United States of Surfaxin for the
prevention of RDS in premature infants and the potential advancement of the
Company’s other KL4 surfactant
programs, the impact of stockholder voting on Proposal 3 at the upcoming Annual
Meeting of Stockholders, and the ability of the Company to fund its activities,
through registered financings or otherwise, 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
described in the Company’s filings with the Securities and Exchange Commission
including the Company’s proxy statement on Schedule 14A and the most recent
reports on Forms 10-K, 10-Q and 8-K, and any amendments thereto.
Contact
Information:
John G.
Cooper, President and Chief Financial Officer
215-488-9490