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
27, 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:
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.
Discovery Laboratories, Inc. (the
“Company”) today announced that it has filed a
Certificate of Amendment to its Amended and Restated Certificate of
Incorporation (the “Amendment”) to (i) effect a 1-for-15 share consolidation, or
reverse stock split (“reverse split”), effective at 12:01 a.m. on December 28,
2010 (the “Effective Time”), and (ii) reduce the number of authorized shares of
common stock, par value $0.001 per share (the “Common Stock”), under the
Company’s Certificate of Incorporation from 380 million to 50
million. Because the Amendment does not reduce the number of
authorized shares of Common Stock in the same proportion as the reverse split,
the effect of the Amendment is to increase the number of shares of Common Stock
available for issuance relative to the number of shares issued and
outstanding.
As previously disclosed, the
stockholders of the Company approved proposals authorizing the Board of
Directors, in its discretion, to implement the reverse split and reduce the
number of authorized shares of Common Stock at the Annual Meeting of
Stockholders held on December 21, 2010. For further information about
the proposals to authorize the Board of Directors to implement the reverse split
and reduce the number of authorized shares of Common Stock, please refer to the
Company’s definitive proxy statement as filed with the SEC on November 15,
2010.
At the Effective Time, immediately and
without further action by the Company’s stockholders, every 15 shares of the
Company’s Common Stock issued and outstanding immediately prior to the Effective
Time will automatically be converted into one share of Common
Stock. In lieu of fractional shares, stockholders will receive cash
in an amount equal to the product obtained by multiplying (i) the closing
sale price per share on the business day immediately preceding the Effective
Time as reported on The Nasdaq Capital Market® by (ii) the number of shares
of Common Stock held by the stockholder that would otherwise have been exchanged
for the fractional share interest. Further, any options, warrants and
rights outstanding as of the Effective Time that are subject to adjustment will
be adjusted in accordance with the terms thereof. These adjustments
may include, without limitation, changes to the number of shares of common stock
that may be obtained upon exercise or conversion of these securities, and
changes to the applicable exercise or purchase price.
The Certificate of Amendment to the
Amended and Restated Certificate of Incorporation of the Company is filed as
Exhibit 3(i) hereto and is incorporated by reference herein. The
press release announcing the Amendment is filed as Exhibit 99.1 hereto and is
incorporated by reference herein.
Item
9.01. Financial
Statements and Exhibits.
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(d)
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Exhibits
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3.1
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Certificate
of Amendment to the Amended and Restated Certificate of Incorporation of
Discovery Laboratories, Inc., effective 12:01 a.m. on December 28,
2010.
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99.1
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Press
release dated December 27, 2010.
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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
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Name: W.
Thomas Amick
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Title: Chairman
of the Board and
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Chief
Executive Officer
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Date: December
27, 2010
Exhibit
3.1
CERTIFICATE
OF AMENDMENT TO
THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
DISCOVERY
LABORATORIES, INC.
(Pursuant
to Section 242 of the General Corporation Law of the State of
Delaware)
Discovery
Laboratories, Inc. a corporation organized and existing under and by virtue of
the provisions of the General Corporation Law of the State of Delaware (the
"General Corporation Law"),
DOES HEREBY
CERTIFY:
1.
That the name of this corporation is Discovery Laboratories, Inc. (the
“Corporation”), and that the Corporation was originally incorporated pursuant to
the General Corporation Law on November 6, 1992 under the name Ansan,
Inc.
2. That
at a meeting of the Board of Directors of the Corporation, resolutions were duly
adopted setting forth proposed amendments to the Amended and Restated
Certificate of Incorporation of the Corporation, declaring said amendments to be
advisable and calling a meeting of the stockholders of the Corporation for
consideration thereof.
3. That
such amendments were duly adopted in accordance with the provisions of Section
242 of the General Corporation Law by the Board of Directors and stockholders of
the Corporation, and that such amendments are set forth in this Certificate of
Amendment.
4. That
upon the effectiveness of this Certificate of Amendment as set forth in
paragraph 5 below, Article FOURTH of the Amended and Restated Certificate of
Incorporation is amended and restated to read as follows:
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The
total number of shares of all classes of stock which the Corporation shall
have the authority to issue is 55,000,000 consisting of 50,000,000 shares
of common stock, par value $0.001 per share (the “Common Stock”), and
5,000,000 shares of preferred stock, par value $0.001 per share (the
“Preferred Stock”).
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On
December 28, 2010, at 12:01 a.m. Eastern Time (the “Effective Time”), each
fifteen (15) shares of the Common Stock, par value $0.001 per share (the “Common
Stock”), issued and outstanding immediately prior to the Effective Time shall
automatically be combined into one (1) validly issued, fully paid and
non-assessable share of Common Stock without any further action by the
Corporation or the holder thereof, subject to the treatment of fractional share
interests as described below (the “Reverse Stock Split”). No
fractional shares will be issued as a result of the Reverse Stock
Split. Instead, stockholders who otherwise would be entitled to
receive a fractional share of Common Stock as a consequence of the Reverse Stock
Split will be entitled to receive cash in an amount equal to the product
obtained by multiplying (i) the closing sale price of our Common Stock on
the business day immediately preceding the effective date of the Reverse Stock
Split as reported on the The Nasdaq Capital Market® by (ii) the
number of shares of our Common Stock held by the stockholder that would
otherwise have been exchanged for the fractional share interest. Each
certificate that immediately prior to the Effective Time represented shares of
Common Stock ("Old Certificates"), shall thereafter represent that number of
shares of Common Stock into which the shares of Common Stock represented by the
Old Certificate shall have been combined, subject to the elimination of
fractional share interests as described above.
5. This
Certificate of Amendment shall become effective on December 28, 2010 at 12:01
a.m. Eastern Time.
6. Except
as set forth in this Certificate of Amendment, the Amended and Restated
Certificate of Incorporation, as previously amended, remains in full force and
effect.
IN
WITNESS WHEREOF, this Certificate of Amendment has been executed by a duly
authorized officer of the Corporation on this 27th day of
December 2010.
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By:
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/s/ W. Thomas Amick
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Name: W.
Thomas Amick
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Title: Chairman
of the Board and
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Chief
Executive Officer
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Exhibit 99.1
Discovery
Labs Announces Reverse Stock Split
Warrington, PA, December 27,
2010 — Discovery
Laboratories, Inc. (Nasdaq: DSCO) today announced that it has filed a
Certificate of Amendment to its Amended and Restated Certificate of
Incorporation (the “Amendment”) to effect a 1-for-15 share consolidation, or
reverse stock split (“reverse split”), effective at 12:01 a.m. on December 28,
2010 (the “Effective Time”). In addition, the Amendment reduces the
number of shares of common stock, par value $0.001 per share, authorized under
the Certificate of Incorporation from 380 million to 50
million. Because the Amendment does not reduce the number of
authorized shares of common stock in the same proportion as the reverse split,
the effect of the Amendment is to increase the number of shares of common stock
available for issuance relative to the number of shares issued and
outstanding. The stockholders of Discovery Labs approved proposals
authorizing the Board of Directors, in its discretion, to implement the reverse
split and reduce the number of authorized shares of common stock at the Annual
Meeting of Stockholders held on December 21, 2010.
The Board
of Directors of Discovery Labs has determined to implement the reverse split at
this time to enable the market price per-share of its common stock to close
above $1.00, which is a continued listing requirement of The NASDAQ Capital
Market® (“Nasdaq”). On November 30, 2010, Discovery Labs received a
Staff Determination letter from Nasdaq indicating that it had not established
compliance with Nasdaq Listing Rule 5550(a)(2) (“Minimum Bid Price Rule”)
because its common stock had not closed above $1.00 per share over a period of
10 consecutive business days ending on or prior to November 29, 2010, and that
its stock is subject to delisting. Discovery Labs has requested a
hearing with Nasdaq to review the Staff Determination and believes that
implementation of the reverse split will support its continued listing on
Nasdaq. Discovery Labs believes that continued listing on Nasdaq,
combined with the increase in shares available for issuance, will enhance its
ability to secure necessary capital from potential strategic partners and
prospective investors to achieve its key business objectives, including
potentially gaining U.S. Food and Drug Administration (FDA) approval for its
lead product, Surfaxin®, for the prevention of respiratory distress syndrome
(RDS) in premature infants.
Details
of the Reverse Split
At the
Effective Time, immediately and without further action by Discovery Labs’
stockholders, every 15 shares of Discovery Labs’ pre-split common stock, par
value $0.001 per share, will automatically be converted into one share of
post-split common stock, par value $0.001 per share. In lieu of
fractional shares, stockholders will receive cash in an amount equal to the
product obtained by multiplying (i) the closing sale price per share on the
business day immediately preceding the Effective Time as reported on Nasdaq by
(ii) the number of shares of common stock held by the stockholder that
would otherwise have been exchanged for the fractional share
interest.
The
immediate effect of the reverse split will be to reduce the number of shares of
Discovery Labs’ common stock that are issued and outstanding to approximately
13.8 million shares (excluding shares reserved for stock options and unexercised
warrants), adjusted for fractional interests. The reverse split will
affect all stockholders uniformly and will have no effect on the proportionate
holdings of any individual stockholder, with the exception of adjustments
related to fractional shares. There will be no change in the number
of stockholders of record as a result of the reverse split. Following
the reverse split, all shares will remain fully paid and
non-assessable.
To inform
the market of the reverse split, Discovery Labs expects that Nasdaq will append
a suffix character, “D,” to the Company’s trading symbol (DSCO) for
approximately 20 days after the Effective Time. After the ~20
trading-day period, the ticker symbol will revert to “DSCO”. In
addition, Discovery Labs’ common stock will also trade under a new CUSIP number
beginning on December 28, 2010.
Additional
information can be found in Discovery Labs’ definitive proxy statement, which
was filed with the SEC on November 15, 2010 and is available on the Company’s
website at www.Discoverylabs.com.
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 ability of the Company to fund
its activities through strategic and financing transactions 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:
Investor
relations:
John G.
Cooper, President and Chief Financial Officer
215-488-9490