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EX-99.1 - WINDTREE THERAPEUTICS INC /DE/ | v204532_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
November
30, 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)
|
x
|
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
3.01.
|
Notice of Delisting or
Failure to Satisfy a Continued Listing Rule or Standard; Transfer of
Listing.
|
On December 3, 2010, Discovery
Laboratories, Inc. (the “Company”) issued a press release announcing that it has
received from The Nasdaq Stock Market, LLC (“Nasdaq”) a Staff Determination that
the Company is not in compliance with Nasdaq Listing Rule 5550(a)(2) (the
“Minimum Bid Price Rule”), and that the Company’s common stock listed on The
NASDAQ Capital Market® (the “Capital Market”) is therefore subject to delisting.
The Company had previously announced that on December 2, 2009, the Company
received a delisting notification from The NASDAQ Global Market® (“Global
Market”) indicating that the bid price for the common stock had failed to close
at or above $1.00 per share for more than 30 consecutive trading days and, as a
result, the Company was not in compliance with Nasdaq Listing Rule
5450(a)(1) (which is the Global Market version of the Minimum Bid Price
Rule). In accordance with Nasdaq Listing Rule 5810(c)(3)(A), the
Company was provided 180 calendar days, or until June 1, 2010, to regain
compliance with the Minimum Bid Price Rule, which would occur if the bid price
of the Company’s common stock closed at or above $1.00 for 10 consecutive
trading days.
As the bid price of the Company’s
common stock did not close at or above $1.00 per share for 10 consecutive
trading days within the initial grace period, to avoid a second delisting
notification, the Company filed an application to transfer the listing of its
common stock from the Global Market to the Capital Market. In
addition, in connection with the transfer to the Capital Market and in
accordance with Nasdaq Listing Rule 5810(c)(3)(A), on June 2, 2010 Nasdaq
notified the Company that it had granted the Company an additional 180 calendar
days, or until November 29, 2010, to regain compliance with the Minimum Bid
Price Rule. As the bid
price of the common stock did not close at or above $1.00 per share during this
additional grace period for 10 consecutive trading days, the Company has not
established compliance with the Minimum Bid Price Rule. The Company intends to
appeal the delisting determination to a Nasdaq Listing Qualifications Panel (the
“Panel”) pursuant to the procedures set forth in the Nasdaq Listing Rule 5800
Series. The appeal will stay the delisting of the common stock until after the
Panel has rendered its decision. There can be no assurance that the Panel will
grant the Company’s request for continued listing on the Capital
Market.
A copy of the press release is filed as
Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by
reference.
Item
8.01.
|
Other
Events.
|
The
information set forth in Item 3.01 of this Report is incorporated by reference
into this Item 8.01. This Report and the Exhibit attached hereto may be deemed
to be solicitation material regarding the Company’s 2010 Annual Meeting of
Stockholders (the "Annual Meeting"). In connection with the Annual Meeting, the
Company has filed and will file relevant materials and documents with the
Securities and Exchange Commission ("SEC"), including a proxy statement that has
been mailed to the stockholders of the Company. Investors and the public are
urged to read these materials carefully and in their entirety as they become
available because they will contain important information about the Company and
the Annual Meeting. The proxy statement and other relevant materials (when they
become available), and any and all documents filed with the SEC, may be obtained
free of charge at the SEC’s web site at www.sec.gov. In
addition, investors and the public may obtain free copies of the documents filed
with the SEC by the Company by directing a written request addressed to
Discovery Laboratories, Inc., Attn.: Investor Relations, 2600 Kelly Road, Suite
100, Warrington, Pennsylvania 18976-3622. The proxy statement also can be
viewed, together with other materials related to the Annual Meeting, at www.ezodproxy.com/discoverylabs/2010.
The directors, executive officers and employees of the Company may be deemed to
be participants in the solicitation of proxies in connection with the Annual
Meeting. Information regarding the special interests of these directors,
executive officers and employees in the Annual Meeting, if any, will be included
in the proxy statement referred to above.
Item
9.01.
|
Financial Statements
and Exhibits.
|
(d)
|
Exhibits
|
|
99.1
|
Press
release dated December 3, 2010.
|
2
Cautionary
Note Regarding Forward-looking Statements:
To the
extent that statements in this Current Report on Form 8-K are not strictly
historical, including statements as to business strategy, outlook, objectives,
future milestones, plans, intentions, goals, future financial conditions, future
collaboration agreements, the success of the Company’s product development or
otherwise as to future events, such statements are forward-looking, and are made
pursuant to the safe harbor provisions of the Private Securities Litigation
Reform Act of 1995. The forward-looking statements contained in this Current
Report are subject to certain risks and uncertainties that could cause actual
results to differ materially from the statements made. Such risks and others are
further described in the Company’s filings with the Securities and Exchange
Commission including the most recent reports on Forms 10-K, 10-Q and 8-K, and
any amendments thereto.
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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.
Discovery Laboratories, Inc. | |||
|
By:
|
/s/ W. Thomas Amick | |
Name: | W. Thomas Amick | ||
Title: | Chief Executive Officer | ||
Date:
December 3, 2010
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