Attached files
| file | filename |
|---|---|
| EX-5.1 - WINDTREE THERAPEUTICS INC /DE/ | v198869_ex5-1.htm |
| EX-4.1 - WINDTREE THERAPEUTICS INC /DE/ | v198869_ex4-1.htm |
| EX-10.1 - WINDTREE THERAPEUTICS INC /DE/ | v198869_ex10-1.htm |
| EX-99.1 - WINDTREE THERAPEUTICS INC /DE/ | v198869_ex99-1.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
October
12, 2010
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:
|
¨
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
|
¨
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
¨
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
|
¨
|
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 October 12, 2010, Discovery
Laboratories, Inc. (the “Company”) entered into a securities purchase agreement
(the “Securities Purchase Agreement”) with PharmaBio Development Inc.
(“PharmaBio”), as the sole purchaser, related to an offering of 2,380,952 shares
of the Company’s common stock (the “Common Stock”) and warrants to purchase an
aggregate of 1,190,476 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 Warrant to
purchase one-half of a share of Common Stock, at an offering price of $0.21 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 Capital Market for 10 consecutive
trading days ending on October 11, 2010 and (b) the VWAP per share of the Common
Stock on October 11, 2010.
Each warrant represents the right to
purchase one-half of a share of Common Stock at an exercise price of $0.273 per
share, which represents 130% of the greater of (a) the VWAP per share of the
Common Stock on The Nasdaq Capital Market for 10 consecutive trading days ending
on October 11, 2010 and (b) the VWAP per share of the Common Stock on October
11, 2010. The Warrants to be issued in the Offering generally will be
exercisable immediately upon issuance for a period of five years from the
original date of issuance. 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 Company may also redeem any or all
outstanding Warrants at any time within 20 days following the occurrence of a
trading threshold at a per Warrant redemption price of $0.001, upon 20 days’
written notice to the holder of the Warrant. A trading threshold will
be deemed to have occurred on any date that the reported VWAP for any five (5)
out of seven (7) consecutive trading days immediately prior to such date exceeds
$0.45, with a minimum average daily trading volume for such seven (7) day period
of at least 500,000 shares of common stock (with such price and volume criteria
being appropriately adjusted for any share dividend, share split or other
similar transaction that may occur on or after the issuance). Upon
the expiration of the 20-day notice period (as it may be extended if the
registration statement is not effective), all warrants noticed for redemption
that have not been exercised by the holder will, upon payment of the aggregate
redemption price, cease to represent the right to purchase any shares of common
stock and will be deemed cancelled and void and of no further force or effect
without any further act or deed on the Company’s part.
The Offering is expected to close on
October 14, 2010, subject to the satisfaction of customary closing conditions.
Gross proceeds to the Company from the Offering will be $500,000 and the net
proceeds to the Company are expected to be approximately $470,000, after
deducting estimated expenses payable by the Company associated with the
Offering. The Offering is being made by means of a prospectus
supplement dated October 12, 2010 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).
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 the terms of those agreements and
instruments 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 the execution of such agreements and instruments.
A copy of the Securities Purchase
Agreement and the form of Warrant to be issued in connection with the Offering
are filed herewith as Exhibits 10.1 and 4.1 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. 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.
2
Item
8.01. Other
Events.
On October 13, 2010 the Company issued
a press release announcing the entry into the Securities Purchase Agreement. The
full text of the press release is set forth in Exhibit 99.1 to this Current
Report on Form 8-K.
Item
9.01. Financial Statements and
Exhibits.
(d) Exhibits
|
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4.1
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Form
of Warrant
|
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5.1
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Opinion
of SNR Denton US LLP
|
|
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10.1
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Securities
Purchase Agreement dated October 12, 2010 by and between Discovery
Laboratories, Inc. and PharmaBio Development
Inc.
|
|
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23.1
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Consent
of SNR Denton US LLP (included in its opinion filed as Exhibit 5.1
hereto)
|
|
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99.1
|
Press
release dated October 13, 2010
|
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:
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/s/ John G.
Cooper
|
|
Name:
|
John
G. Cooper
|
|
Title:
|
President
and Chief Financial
Officer
|
Date:
October 13, 2010
4