Attached files
| file | filename |
|---|---|
| EX-99.1 - WINDTREE THERAPEUTICS INC /DE/ | v199565_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
15, 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:
| 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
5.02. Departure of Directors or
Certain Officers; Election of Directors; Appointment of Certain Officers;
Compensatory Arrangements of Certain Officers.
On
October 15, 2010, the Board of Directors (“Board”) of Discovery Laboratories,
Inc. (the “Company”) appointed W. Thomas Amick, 67, as its full-time
Chief Executive Officer effective October 18, 2010.
The
Company and Mr. Amick were previously party to a non-employee consulting
agreement dated as of August 13, 2009 with respect to Mr. Amick's previous role
as Interim Chief Executive Officer of the Company. As of October 18,
2010, the Company and Mr. Amick entered into an employment agreement to reflect
Mr. Amick's role with the Company. Under the terms of his
agreement, Mr. Amick will receive: (i) a salary of at least $400,000 per year,
subject to a potential annual increase by the compensation committee of the
Board and (ii) a discretionary bonus opportunity in the form of either cash
or equity, or both, subject to the discretion of the compensation committee of
the Board. In connection with his appointment, Mr. Amick was granted 400,000
shares of restricted Common Stock, par value $.001 per share, of the
Company (the “RSAs”) on October 18, 2010. The RSAs vest on the
earliest to occur of the following events: (i) the second anniversary of the
date of grant; (ii) the date of issuance by the U. S. Food and Drug
Administration of a marketing approval with respect to the Company’s New Drug
Application (NDA) for Surfaxin® for the
prevention of respiratory distress syndrome (RDS) in premature infants; or (iii)
the effective date of a strategic alliance, collaboration agreement or other
similar arrangement between the Company and one or more third parties providing
for the support for the development and/or commercialization of one or more of
the Company’s lead research and development programs – Surfaxin, Surfaxin LS™ or
Aerosurf®
(whether a transaction meets this requirement shall be determined by the
Board in its sole discretion). The RSAs will vest only if Mr. Amick
is actively providing services to the Company on the day of
vesting.
Under the
the terms of the agreement, if Mr. Amick’s employment is terminated by the
Company without “cause” or by Mr. Amick for “good reason” (both as defined in
the employment agreement), he will be entitled to (a) the acceleration and
vesting of all stock and options then held by Mr. Amick, (b) a lump-sum payment
equal to the product of (i) 1.5 and (ii) the sum of (x) Mr. Amick’s then-current
base salary and (y) the largest annual cash bonus received by Mr. Amick in the
three fiscal years immediately preceding the date of termination (the “Highest
Annual Bonus”), (c) a pro-rata bonus payable in a lump sum equal to the Highest
Annual Bonus multiplied by a fraction the numerator of which is the number of
days the executive was employed with the Company in the current fiscal year and
the denominator of which is 365, (d) continuation of health benefits (or their
equivalent) for Mr. Amick and the members of his family who were participating
in the Company’s health and welfare plans at the time of termination for 18
months after the date of termination, reduced to the extent that a subsequent
employer provides the executive with substantially similar coverage (on a
benefit-by-benefit basis). and (e) outplacement counseling assistance in the
form of reimbursement for reasonable expenses incurred by the executive within
12 months following the date of termination, up to a maximum amount of
$40,000.
In
addition, following a change in control of the Company, if his employment is
terminated by the Company without “cause” or by Mr. Amick for “good reason”
(both as defined in the employment agreement), he will be entitled to (a) the
acceleration and vesting of all stock and options then held by Mr.
Amick, (b) a lump sum payment equal to the product of (i) 2.5 and (ii) the sum
of (x) Mr. Amick’s then current base salary and (y) the Highest Annual Bonus,
(c) a pro-rata bonus payable in a lump sum equal to the Highest Annual Bonus
multiplied by a fraction the numerator of which is the number of days the
executive was employed with the Company in the current fiscal year and the
denominator of which is 365, (d) continuation of health benefits (or their
equivalent) for Mr. Amick and the members of his family who were participating
in the Company’s health and welfare plans at the time of termination for 18
months after the date of termination, reduced to the extent that a subsequent
employer provides the executive with substantially similar coverage (on a
benefit-by-benefit basis), and (e) outplacement counseling assistance in the
form of reimbursement for reasonable expenses incurred by the executive within
12 months following the date of termination, up to a maximum amount of
$40,000.
The
agreement also includes a 12-month post-employment noncompetition agreement,
confidentiality and assignment of intellectual property provisions and an
excise tax gross-up feature.
2
Mr. Amick most recently served as
Interim Chief Executive Officer of the Company since August of 2009 and as
Chairman of the Board of the Company since March 2007. Mr. Amick will
continue to serve as Chairman of the Board. Prior to his affiliation
with the Company, Mr. Amick served as a senior executive with Johnson
& Johnson (J&J). As Vice President of the Ortho Biotech Oncology
Franchise, he was instrumental in the launch of Procrit® (epoetin alfa) and
building the oncology franchise into a multi-billion dollar
operation. He then held the positions of President of Janssen-Ortho,
Inc., managing the entire J&J pharmaceutical and biotechnology portfolio for
Canada, and President of Ortho Biotech Europe. Mr. Amick also served
as an executive with J&J Development Corporation, the venture capital
division of J&J comprised of experts and leaders in health care responsible
for strategic investments in life science companies. Prior to
becoming Discovery Labs’ Chief Executive Officer, Mr. Amick was Chief Executive
Officer of Aldagen Inc., a biotechnology company developing regenerative cell
therapies. Mr. Amick has served on Discovery Labs’ Board since 2004,
is a member of the Board of a private biotechnology company and also serves as
an advisor to two well-regarded private equity firms focused on the
biopharmaceutical industry.
The
description of Mr. Amick’s RSA grant is qualified in its entirety by
reference to the text of the Form of Restricted Stock Award Agreement, attached
as Exhibit 10.1 to the Company’s current report on Form 8-K filed on October 1,
2010, respectively.
On
October 15, 2010, the Company issued a press release regarding the appointment
of Mr. Amick as its Chief Executive Officer, a copy of which is attached hereto
as Exhibit 99.1 and incorporated herein by reference.
Item
9.01. Financial
Statements and Exhibits.
| (d) | Exhibits | |
| 10.1 | Form of Restricted Stock Award Agreement (incorporated by reference to the Company’s Current Report on Form 8-K filed on October 1, 2010; File No. 000-26422). | |
|
99.1
|
Press
Release dated October 15, 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:
|
/s/ John G. Cooper | |
| Name: | John G. Cooper | ||
| Title: | President, Chief Financial Officer and Treasures | ||
Date: October
21, 2010