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DSCO > SEC Filings for DSCO > Form 8-K on 31-Oct-2013All Recent SEC Filings




Entry into a Material Definitive Agreement, Other Events, Financi

Item 1.01. Entry into a Material Definitive Agreement.

On October 31, 2013, Discovery Laboratories, Inc. (the "Company") entered into an Underwriting Agreement (the "Underwriting Agreement") with Stifel, Nicolaus & Company, Incorporated ("Stifel") and Piper Jaffray & Co. ("Piper"), as representatives (the "Representatives") of the underwriters identified therein (the "Underwriters"), related to a public offering of an aggregate of 25,000,000 shares of common stock, par value $.001 per share ("Common Stock"), of the Company. The Company has granted the Underwriters a 30-day option to purchase up to an additional 3,750,000 shares of Common Stock to cover over-allotments, if any. The shares of Common Stock are being sold at a public offering price of $2.00 per share, less an underwriting discount of 6% payable by the Company (the "Offering").

The Offering is being made pursuant to a preliminary prospectus supplement dated October 30, 2013 and an accompanying prospectus dated June 21, 2011 under the Company's existing shelf registration statement on Form S-3 (File No. 333-174786), which was filed with the Securities and Exchange Commission and declared effective on June 21, 2011.

The Offering is expected to close November 5, 2013, subject to the satisfaction of customary closing conditions. The net proceeds to the Company are expected to be approximately $46,815,000 (excluding any proceeds we may receive if the over-allotment option granted to the Underwriters is exercised), after deducting the underwriting discount and estimated expenses payable by the Company associated with the Offering. The net proceeds will be used primarily (i) to support the commercial introduction of SURFAXIN® drug product, (ii) to advance the Company's AEROSURF® development program, including the planned phase 2 clinical program, and (iii) for general corporate purposes.

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 in connection with the execution of the Underwriting Agreement.

Copies of the Underwriting Agreement and the opinion of Dentons US LLP relating to the legality of the issuance and sale of the securities in the Offering are attached hereto as Exhibit 1.1 and Exhibit 5.1, respectively, and are incorporated herein by reference. The foregoing description of the Underwriting Agreement and the terms of the Offering does not purport to be complete and is qualified in its entirety by reference to Exhibit 1.1.

Item 8.01. Other Events.

Reference is made to the description of the Offering in Item 1.01. Pursuant to the Underwriting Agreement, the Company and each of its executive officers and directors, subject to certain exceptions, have agreed with the Representatives not to dispose of or hedge any of their shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock for 90 days after the date of the final prospectus supplement without first obtaining the written consent of the Representatives. However, the Company may issue securities (i) pursuant to its employee benefit and compensation plans, (ii) pursuant to outstanding options, warrants and rights, (iii) pursuant to a loan facility with Deerfield Management Company, L.P., (iv) in connection with strategic alliances involving the Company, and (v) in other cases as specified in the Underwriting Agreement. In addition, the Company may sell Common Stock under its At-the-Market Equity Offering Sales Agreement with Stifel commencing 30 days after the date of the Company's final prospectus supplement for the Offering.

On October 31, 2013, 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.

Item 9.01. Financial Statements and Exhibits.

            (d)      Exhibits

              1.1    Underwriting Agreement dated October 31, 2013 between Discovery
                     Laboratories, Inc., Stifel, Nicolaus & Company, Incorporated and
                     Piper Jaffray & Co. as representatives of the underwriters

              5.1    Opinion of Dentons US LLP

            23.1     Consent of Dentons US LLP (included in its opinion filed as
                     Exhibit 5.1 hereto)

99.1 Press release dated October 31, 2013

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