Attached files
| file | filename |
|---|---|
| EX-4.1 - WINDTREE THERAPEUTICS INC /DE/ | v182496_ex4-1.htm |
| EX-1.1 - WINDTREE THERAPEUTICS INC /DE/ | v182496_ex1-1.htm |
| EX-1.3 - WINDTREE THERAPEUTICS INC /DE/ | v182496_ex1-3.htm |
| EX-1.2 - WINDTREE THERAPEUTICS INC /DE/ | v182496_ex1-2.htm |
| EX-5.1 - WINDTREE THERAPEUTICS INC /DE/ | v182496_ex5-1.htm |
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
April
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:
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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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o
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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
1.01.
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Entry into a Material
Definitive Agreement.
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Payment Agreement and Loan
Amendment and Promissory Note
On April 27, 2010, Discovery
Laboratories, Inc. (the “Company”) entered into a Payment Agreement and Loan
Amendment (the “Payment Agreement and Loan Amendment”) with PharmaBio
Development Inc. (“PharmaBio”), a former strategic investing subsidiary of
Quintiles Transnational Corp. (“Quintiles”), to restructure
the Company’s debt of approximately $10.6 million payable to PharmaBio on April
28, 2010 by (a) satisfying in cash a portion of the outstanding principal and
all accrued interest of approximately $6.6 million ($4.5 million principal and
$2.1 million accrued interest) and (b) amending the Company’s loan agreement
with PharmaBio to extend the maturity date for the remaining $4 million owed to
PharmaBio.
In connection with the restructuring,
PharmaBio will submit the existing loan promissory note with the face value of
$8.5 million to the Company for cancellation and the Company will simultaneously
issue and deliver a replacement promissory note (the “Promissory Note”) to
PharmaBio for $4 million, $2 million of which will become due and payable on
July 30, 2010 and the remaining $2 million of which will become due and payable
on September 30, 2010. No further interest will accrue on the $4
million owed to PharmaBio so long as the Company makes each of the principal
payments on or before the respective due dates. The Company has agreed to
maintain at least $10 million in cash and cash equivalents until payment of the
first $2 million owed to PharmaBio, and $8 million in cash and cash equivalents
thereafter, until the payment of the remaining portion of the loan after which
the Company’s financial covenants will terminate and the loan to PharmaBio will
be satisfied in full.
Pursuant to the Payment Agreement and
Loan Amendment, the following outstanding warrants to purchase shares of common
stock, par value $0.001 per share, of the Company (“Common Stock”) issued to
PharmaBio in connection with the loan prior to the Payment Agreement and Loan
Amendment and a prior offering will be cancelled: a warrant to purchase 850,000
shares of Common Stock, at $7.19 per share expiring on November 3, 2014, a
warrant to purchase 1,500,000 shares of Common Stock at $3.58 per share expiring
on October 26, 2013 and a warrant to purchase 43,612 shares of the Company’s
Common Stock at $6.875 per share expiring on September 19, 2010.
Pursuant to the Payment Agreement and
Loan Amendment, the Company and PharmaBio have also agreed to negotiate in good
faith to enter into a strategic alliance or collaborative arrangement under
which PharmaBio would provide funding for a research collaboration between
Quintiles and the Company relating to the possible research and development, and
commercialization of two of the Company’s drug product candidates, Surfaxin LS™
and Aerosurf®, for the prevention and treatment of respiratory distress syndrome
(RDS) in premature infants. Upon execution of Payment Agreement and Loan
Amendment, the parties will promptly negotiate, in good faith, the terms
thereof; provided, however, that neither party will have any obligation to enter
into any such alliance or arrangement except to the extent that it, in its sole
discretion, agrees to enter into definitive documents
therefor. PharmaBio’s willingness to enter into any such alliance or
arrangement will depend on the Company’s funding requirements, PharmaBio’s
available investment capital, and the risk-reward profile of the investment
terms offered by the Company as compared to PharmaBio’s other investment
opportunities. Accordingly, there can be no assurances that any such
arrangement will be entered into.
Securities Purchase
Agreement and the Related Offering
On
April 27, 2010, the Company also entered into a Securities Purchase
Agreement with PharmaBio, as the sole purchaser, related to an offering of
4,052,312 shares of Common Stock and warrants to purchase an
aggregate of 2,026,156 shares of Common Stock (“Warrants”). The
shares of Common Stock and Warrants are being sold as units (“Units”), with each
Unit consisting of (i) one share of Common Stock, and (ii) one-half of a Warrant
to purchase a share of Common Stock at an offering price of $0.5429 per Unit
(the “Offering”). The offering price per Unit was calculated based on
the greater of (a) the volume-weighted average sale price (“VWAP”) per share of
the Common Stock on The Nasdaq Global Market for the 20 trading days ending on
April 27, 2010 and (b) the last reported closing price of $0.5205 per share of
the Common Stock on The Nasdaq Global Market on such date.
2
The
Warrants to be issued in the Offering generally will be exercisable beginning
181 days after the date of issuance for a period of five years from the original
date of issuance at an exercise price of $0.7058 per share, which represents a
30% premium to the VWAP. The exercise price and number of shares of
Common Stock issuable on exercise of the Warrants will be subject to adjustment
in the event of any stock split, reverse stock split, stock dividend,
recapitalization, reorganization or similar transaction. The exercise
price and the amount and/or type of property to be issued upon exercise of the
Warrants will also be subject to adjustment if the Company engages in a
“Fundamental Transaction” (as defined in the Warrant).
The Offering is expected to close on
April 30, 2010, subject to the satisfaction of customary closing conditions.
Gross proceeds to the Company from the Offering are $2.2 million and the net
proceeds to the Company are expected to be approximately $2.1 million, after
deducting estimated expenses payable by the Company associated with the
Offering. The Offering is being made pursuant to a prospectus
supplement dated April 28, 2010 and an accompanying prospectus dated June 18,
2008 pursuant to the Company’s existing shelf registration statement on Form S-3
(File No. 333-151654), which was filed with the Securities and Exchange
Commission (the “Commission”) on June 13, 2008 and declared effective by the
Commission on June 18, 2008.
The Securities Purchase Agreement
contains customary representations, warranties, and agreements by the Company,
and customary conditions to closing.
The agreements and instruments that
have been attached as hereto as exhibits are intended to provide investors and
security holders with information regarding their terms and are not intended to
provide any other factual information about the Company. The representations,
warranties and covenants contained therein were made only for purposes of such
agreements and instruments and as of specific dates, were solely for the benefit
of the parties thereto, and may be subject to limitations agreed upon by the
contracting parties, including being qualified by confidential disclosures
exchanged between the parties in connection with their execution.
A copy of the Payment Agreement and
Loan Amendment and the Promissory Note issued by the Company are filed herewith
as Exhibits 1.1 and 1.2. A copy of the Securities Purchase Agreement
and the form of Warrant Agreement to be issued in connection with the Offering
are filed herewith as Exhibits 1.3 and 4.1 and are incorporated herein by
reference. The foregoing description of the Payment Agreement and Loan
Amendment, the Promissory Note, the Offering by the Company and the
documentation related thereto does not purport to be complete and is qualified
in its entirety by reference to such Exhibits. A copy of the opinion of
Sonnenschein Nath & Rosenthal LLP relating to the legality of the issuance
and sale of the securities in the Offering is attached as Exhibit 5.1
hereto.
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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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1.1
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Payment
Agreement and Loan Amendment dated April 27, 2010 by and between Discovery
Laboratories, Inc. and PharmaBio Development
Inc.
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1.2
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Promissory
Note dated April 27, 2010
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1.3
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Securities
Purchase Agreement dated April 27, 2010 by and between Discovery
Laboratories, Inc. and PharmaBio Development
Inc.
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4.1
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Form
of Warrant Agreement
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5.1
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Opinion
of Sonnenschein Nath & Rosenthal
LLP
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23.1
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Consent
of Sonnenschein Nath & Rosenthal LLP (included in its opinion filed as
Exhibit 5.1 hereto)
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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.
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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:
Chief Executive Officer
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Date:
April 28, 2010
4