Securities Registration: Employee Benefit Plan (s-8)
29 Marzo 2016 - 3:30PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on March 29, 2016
Registration No. 333-_________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DISCOVERY LABORATORIES, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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94-3171943
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(State or Other Jurisdiction of Incorporation)
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(I.R.S. Employer Identification Number)
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2600 Kelly Road, Suite 100
Warrington, Pennsylvania 18976-3622
(Address, including zip code, of Principal Executive Offices)
Discovery Laboratories, Inc. 401(k) Plan
(Full title of the plan)
Mary B. Templeton, Esq.
Senior Vice President, General Counsel and Corporate Secretary
Discovery Laboratories, Inc.
2600 Kelly Road, Suite 100
Warrington, Pennsylvania 18976
(215) 488-9300
(Name and address, and telephone number, including area code, of agent for service)
Copies to:
Ira L. Kotel, Esq.
Dentons US LLP
1221 Avenue of the Americas
New York, New York 10020
(212) 768-6700
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Title of Securities
to be Registered
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Amount to be
Registered
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Proposed Maximum Offering
Price Per Share(1)
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Proposed Maximum
Aggregate Offering
Price(1)
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Amount of
Registration
Fee
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Common Stock, $0.001 par value
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300,000
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(2
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$
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1.56
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$
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468,000
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$
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47.13
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(1)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and (h) promulgated under the Securities Act by taking the average of the high and low sales price per share of the Common Stock on The Nasdaq Capital Market on March 28, 2016.
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(2)
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Represents an additional 300,000 shares of Common Stock, par value $0.001 per share, issuable under the Discovery Laboratories, Inc. 401(k) Plan (the “401(k) Plan”). The issuance of such shares under the 401(k) Plan was approved by the Board of Directors on March 8, 2016. The 401(k) Plan qualifies as an employee benefit plan as defined under Rule 405 of Regulation C. Pursuant to Rule 416 promulgated under the Securities Act, this registration statement shall be deemed to cover any additional securities that become issuable under the 401(k) Plan by reason of any stock splits, stock dividends or recapitalizations or other similar transactions.
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EXPLANATORY NOTE
This registration statement is being filed to register the issuance of an additional 300,000 shares of Common Stock that may be issued pursuant to the Discovery Laboratories, Inc. (the “Company”) 401(k) Plan (“401(k) Plan”), plus any additional securities that become issuable under the 401(k) Plan by reason of any stock splits, stock dividends or recapitalizations or other similar transactions.
The Company previously registered shares of Common Stock for issuance under the 401(k) Plan on registration statements on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on November 12, 2003 (File No. 333-110412), September 28, 2006 (File No. 333-137643), December 23, 2008 (File No. 333-156443), January 22, 2010 (File No. 333-164470), March 31, 2010 (File No. 333-165809), September 30, 2010 (File No. 333-169662), April 1, 2011 (File No. 333-173259), March 30, 2012 (File No. 333-1804970, March 22, 2013 (File No. 333-187486), June 30, 2014 (File No. 333-197139), January 14, 2015 (File No. 333-201478), and January 6, 2016 (File No. 333-208879). Pursuant to General Instruction E to Form S-8 and with respect to the additional shares of Common Stock registered hereunder for issuance under the 401(k) Plan, the contents of such registration statements, including all exhibits thereto as applicable, are incorporated herein by reference.
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such documents. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I, Items 1 and 2, will be delivered to each of the participants in accordance with Rule 428 under the Securities Act of 1933, as amended (“Securities Act”), and the Note to Part I of Form S-8. Those documents do not need to be filed with the Commission either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
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ITEM 3.
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INCORPORATION OF DOCUMENTS BY REFERENCE.
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The following documents have been filed by the Company with the Commission and are hereby incorporated by reference in this registration statement:
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(a)
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The Company’s Annual Report on Form 10-K for the year ended December 31, 2015, filed on March 29, 2016, as amended;
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(b)
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The Company’s Current Reports on Form 8-K filed on January 21, 2016; February 3, 2016; and February 16, 2016; and
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(c)
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The description of the Company’s Common Stock contained in the Company’s registration statement on Form 8-A filed with the SEC on July 13, 1995 and February 6, 2004.
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All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such documents. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Exhibit No.
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Description
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Method of Filing
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Opinion of Dentons US LLP, legal counsel.*
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Filed herewith.
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23.1
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Consent of Dentons US LLP (included in Exhibit 5.1)
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Filed herewith.
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Consent of Ernst & Young LLP, independent registered public accounting firm.
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Filed herewith.
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24.1
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Powers of Attorney (included on signature page to this registration statement).
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Filed herewith.
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* In accordance with Item 8 of Form S-8, and in lieu of the opinion of counsel or determination contemplated by Item 601(b)(5) of Regulation S-K, the Company hereby undertakes that it will submit the Plan and all amendments thereto to the Internal Revenue Service (“IRS”) in a timely manner, and that it will make all changes required by the IRS in order to qualify the Plan.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Warrington, Commonwealth of Pennsylvania on this 29
th
day of March, 2016.
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DISCOVERY LABORATORIES, INC.
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(Registrant)
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By:
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/s/ Craig E. Fraser
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Craig E. Fraser
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President and Chief Executive Officer
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POWER OF ATTORNEY
We, the undersigned officers and directors of Discovery Laboratories, Inc., and each of us, do hereby constitute and appoint each of Mary B. Templeton, Esq., and John A. Tattory, or any of them, each acting alone, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to do any and all acts and things in our name, place and stead, in any and all capacities, in connection with this registration statement on Form S-8 under the Securities, or any registration statement for the same offering that is to be effective upon filing under the Securities Act, including, without limitation, to sign for us or any of us in our names in the capacities indicated below any and all amendments or supplements to this registration statement, including any and all post-effective amendments to the registration statement, and to sign any and all additional registration statements relating to the same offering of securities as this registration statement that are filed pursuant to Rule 462(b) under the Securities Act, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission and any applicable securities exchange or securities self-regulatory body, granting unto said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities indicated on the dates indicated.
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Signature
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Name and Title
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Date
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Craig E. Fraser
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President, Chief Executive Officer
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and Director
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/s/ Craig E. Fraser
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(Principal Executive Officer)
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March 29, 2016
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John A. Tattory
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Senior Vice President and Chief Financial Officer
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(Principal Financial Officer and
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/s/ John A. Tattory
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Principal Accounting Officer)
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March 29, 2016
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John R. Leone
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/s/ John R. Leone
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Chairman of the Board of Directors
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March 29, 2016
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Joseph M. Mahady
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/s/ Joseph M. Mahady
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Director
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March 29, 2016
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Bruce A. Peacock
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/s/ Bruce A. Peacock
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Director
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March 29, 2016
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Marvin E. Rosenthale, Ph.D.
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/s/ Marvin E. Rosenthale
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Director
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March 29, 2016
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