Attached files
| file | filename |
|---|---|
| EX-1.1 - WINDTREE THERAPEUTICS INC /DE/ | v211719_ex1-1.htm |
| EX-4.2 - WINDTREE THERAPEUTICS INC /DE/ | v211719_ex4-2.htm |
| EX-4.1 - WINDTREE THERAPEUTICS INC /DE/ | v211719_ex4-1.htm |
| EX-99.1 - WINDTREE THERAPEUTICS INC /DE/ | v211719_ex99-1.htm |
| EX-5.1 - WINDTREE THERAPEUTICS INC /DE/ | v211719_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
February
16, 2011
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
1.01.
|
Entry into a Material
Definitive Agreement.
|
On
February 16, 2011, Discovery Laboratories, Inc. (the “Company”) entered into an
Underwriting Agreement with Lazard Capital Markets LLC, as the sole book-running
manager, and Boenning & Scattergood, Inc. and Global Hunter Securities, LLC,
as the co-managers (collectively, the “Underwriters”), related to a public
offering of (i) an aggregate of 10,000,000 shares of common stock, par value
$.001 per share (“Common Stock”), (ii) five-year warrants to purchase an
aggregate of 5,000,000 shares of Common Stock (the “Five-Year Warrants”) and
(iii) fifteen-month warrants to purchase an aggregate of 5,000,000 shares of
Common Stock (the “Fifteen-Month Warrants” and together with the Five-Year
Warrants, the “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, (ii) a Five-Year Warrant to purchase 0.50 of a share of Common
Stock and (iii) a Fifteen-Month Warrant to purchase 0.50 of a share of Common
Stock, at a public offering price of $2.35 per Unit, less underwriting discount
payable by the Company (the “Offering”). The Underwriters will
purchase the Units at a discounted price of $2.1855 per Unit,
representing seven percent (7.0%) of the public offering price.
The
Five-Year Warrants to be issued in the Offering will generally be exercisable
for a period of five years from the date of issuance at an exercise price of
$3.20 per share. The Fifteen-Month Warrants to be issued in the
Offering will generally be exercisable for a period of fifteen months from the
date of issuance at an exercise price of $2.94 per share. 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, among other events as described in the Warrants. In
addition, the Five-Year Warrants contain anti-dilution protection upon the
issuance of any common stock, securities convertible into common stock, or
certain other issuances at a price below the then-existing exercise price of the
Five-Year Warrants, with certain exceptions.
The
Offering is expected to close on February 22, 2011, subject to the satisfaction
of customary closing conditions. The net proceeds to the Company are expected to
be approximately $21.6 million, assuming no exercise of the Warrants and after
deducting underwriting discount and estimated expenses payable by the Company
associated with the Offering. The Offering is being made pursuant to
a preliminary prospectus supplement dated February 15, 2011 and an accompanying
prospectus dated June 11, 2010 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
Underwriting Agreement contains customary representations, warranties, and
agreements by the Company, and customary conditions to closing, indemnification
obligations of the Company and the Underwriters, including for liabilities under
the Securities Act of 1933, as amended, other obligations of the parties, and
termination provisions.
The
Underwriting Agreement has been attached hereto as an exhibit to provide
investors and security holders with information regarding its terms. It is not
intended to provide any other factual information about the Company. The
representations, warranties and covenants contained in the Underwriting
Agreement were made only for purposes of such agreement and as of specific
dates, were solely for the benefit of the parties to such agreement, 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 the execution of the Underwriting Agreement.
A copy of
the opinion of SNR Denton US LLP relating to the legality of the issuance and
sale of the securities in the Offering is attached as Exhibit 5.1
hereto. Copies of the Underwriting Agreement and the forms of Warrant
to be issued in connection with the Offering are filed herewith as Exhibits 1.1,
4.1 and 4.2, respectively, and are incorporated herein by reference. The
foregoing description of 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
2
|
Item
8.01.
|
Other
Events.
|
Reference
is made to the description of the Offering in Item 1.01. The Company agreed in
the Underwriting Agreement, subject to certain exceptions, not to offer and sell
any shares of its Common Stock or securities convertible into or exercisable or
exchangeable for shares of its Common Stock for a period of ninety (90) days
following the Offering without the written consent of the
Underwriters. However, the Company may issue securities (i) pursuant
to its employee benefit and compensation plans and (ii) in connection with
strategic alliances involving the Company and in other cases as specified in the
Underwriting Agreement.
On
February 16, 2011, the Company issued a press release announcing the pricing of
the offering. A copy of the press release is attached hereto as
Exhibit 99.1 and is incorporated herein by reference.
As of
December 31, 2010, the Company had cash and marketable securities of $10.2
million, representing a net decrease of $4.4 million from the previous quarter
ended September 30, 2010. The Company had approximately 13.8 million
shares of Common Stock outstanding as of December 31, 2010.
|
Item
9.01.
|
Financial Statements
and Exhibits.
|
|
(d)
|
Exhibits
|
|
|
1.1
|
Underwriting
Agreement dated February 16, 2011 by and among Discovery Laboratories,
Inc., Lazard Capital Markets LLC, Boenning & Scattergood, Inc. and
Global Hunter Securities, LLC
|
|
|
4.1
|
Form
of Five-Year Warrant
|
|
|
4.2
|
Form
of Fifteen-Month Warrant
|
|
|
5.1
|
Opinion
of SNR Denton US LLP
|
|
|
23.1
|
Consent
of SNR Denton US LLP (included in its opinion filed as Exhibit 5.1
hereto)
|
|
|
99.1
|
Press
Release dated February 16, 2011.
|
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. | |||
|
|
By:
|
/s/ W. Thomas Amick | |
| Name: | W. Thomas Amick | ||
| Title: | Chairman of the Board and | ||
|
Chief
Executive Officer
|
|||
Date: February
16, 2011
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