x |
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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o
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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Delaware
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94-3171943
|
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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Large accelerated filer | o | Accelerated filer | o | |
Non-accelerated filer | o | (Do not check if a smaller reporting company) | Smaller reporting company | x |
Page
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Item 1.
Financial Statements
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1
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1
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2
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3
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Notes to Consolidated Financial Statements (unaudited) | 4 |
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12 | |
Item 4.
Controls and Procedures
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22 |
PART II - OTHER INFORMATION | |
Item 1. Legal Proceedings | 23 |
Item 1A. Risk Factors | 23 |
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds | 31 |
Item 6. Exhibits | 31 |
Signatures | 32 |
●
|
the risk that, if we fail to successfully commercialize SURFAXIN
®
and AFECTAIR
®
, or if SURFAXIN and AFECTAIR do not gain market acceptance for any reason, our revenues would be limited, which could have a material adverse effect on our business, financial condition and results of operations;
|
●
|
the risk that, if we are unable for any reason to introduce, or, if there is a significant delay in the commercial introduction of, SURFAXIN
®
and AFECTAIR
®
in the U.S. and other markets as planned, we may have difficulty securing additional capital to sustain our operations, which could have a material adverse effect on our ability to continue our marketing and distribution efforts, research and development programs and operations;
|
●
|
risks relating to our lack of marketing and distribution capabilities, which we will have to develop internally and secure through third-party strategic alliances and/or marketing alliances and/or distribution arrangements, that could require us to give up rights to our drug products, drug product candidates and drug delivery technologies;
|
●
|
the risk that we may be unable to enter into strategic alliances or collaboration agreements to support the development of our KL
4
surfactant pipeline products, beginning with SURFAXIN LS™ and AEROSURF
®
, and, if approved, commercialization of these products in markets outside the United States;
|
●
|
risks relating to our ability to develop a successful sales and marketing organization to market SURFAXIN and AFECTAIR and our other product candidates, if approved, in a timely manner, if at all, and that we or our marketing and advertising consultants will not succeed in developing market awareness of our products or that our product candidates will not gain market acceptance by physicians, patients, healthcare payers and others in the medical community;
|
●
|
risks relating to our ability to develop and manufacture drug products based on our KL
4
surfactant technology, drug-device combination products that use our capillary aerosol generator (CAG) technology, and medical devices, including our CAG devices and novel ventilator circuit / patient interface connectors, for commercialization of our approved products and for preclinical and clinical studies of our product candidates;
|
●
|
risks relating to the transfer of our manufacturing technology to third-party contract manufacturers and assemblers;
|
●
|
the risk that we, our contract manufacturers or any of our third-party suppliers may encounter problems or delays in manufacturing drug product substances, our drug products, CAG devices and ventilator circuit / patient interface connectors and related componentry, and other materials on a timely basis or in an amount sufficient to support the commercial introduction of SURFAXIN and the AFECTAIR devices, as well as our research and development activities for our other product candidates;
|
●
|
risks relating to the rigorous regulatory approval processes, including pre-filing activities, required for approval of any drug, combination drug-device product or medical device that we may develop, whether independently, with strategic development partners or pursuant to collaboration arrangements;
|
●
|
risks related to our efforts to gain regulatory approval, in the United States and elsewhere, for our drug product and medical device candidates, including (i) drug and drug-device combination products that we are developing to address RDS in premature infants: SURFAXIN LS (our lyophilized (freeze-dried) dosage form of SURFAXIN), and AEROSURF (our initial aerosolized KL
4
surfactant using our CAG technology); and (ii) AFECTAIR, a series of our novel ventilator circuit / patient interface connectors that we plan to introduce commercially in the fourth quarter of 2012;
|
●
|
the risk that the FDA or other regulatory authorities may not accept, or may withhold or delay consideration of, any applications that we may file, or may not approve our applications or may limit approval of our products to particular indications or impose unanticipated label limitations;
|
●
|
risks relating to our research and development activities, which involve time-consuming and expensive preclinical studies and other efforts, and potentially multiple clinical trials, which may be subject to potentially significant delays or regulatory holds or fail, and which must be conducted using sophisticated and extensive analytical methodologies and quality control release and stability tests to satisfy the requirements of the regulatory authorities;
|
●
|
the risk that we may be unable to identify potential strategic partners or collaborators with whom we can develop and, if approved, commercialize our products in a timely manner, if at all;
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●
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the risk that we or our strategic partners or collaborators will not be able to attract or maintain qualified personnel, which could affect our ability to develop and market our products;
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●
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the risk that market conditions, the competitive landscape or other factors may make it difficult to launch and profitably sell our products;
|
●
|
risks that reimbursement and health care reform may adversely affect us or that our products will not be accepted by physicians and others in the medical community;
|
●
|
the risk that changes in the national or international political and regulatory environment may make it more difficult to gain FDA or other regulatory approval of our drug product and medical device candidates;
|
●
|
the risk that we may be unable to maintain compliance with continued listing requirements of The Nasdaq Capital Market
®
, which could increase the probability that our stock will be delisted, which could cause our stock price to decline;
|
●
|
risks that the unfavorable credit and economic environment will adversely affect our ability to fund our activities, that our Committed Equity Financing Facility (CEFF) and the at-the-market (ATM) Program may be unavailable or may expire or be exhausted, and that additional equity financings could result in substantial equity dilution or result in a downward adjustment to the exercise price of five-year warrants that we issued in February 2011 (which contain price-based anti-dilution revisions);
|
●
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the risks that we may be unable to maintain and protect the patents and licenses related to our products and that other companies may develop competing therapies and/or technologies;
|
●
|
the risks that we may become involved in securities, product liability and other litigation and that our insurance may be insufficient to cover costs of damages and defense; and
|
●
|
other risks and uncertainties detailed in “Risk Factors” and in the documents incorporated by reference in this report.
|
ITEM 1.
|
March 31,
|
December 31,
|
|||||||
2012
|
2011
|
|||||||
(Unaudited)
|
||||||||
ASSETS
|
||||||||
Current Assets:
|
||||||||
Cash and cash equivalents
|
$ | 54,802 | $ | 10,189 | ||||
Prepaid expenses and other current assets
|
393 | 442 | ||||||
Total Current Assets
|
55,195 | 10,631 | ||||||
Property and equipment, net
|
2,143 | 2,293 | ||||||
Restricted cash
|
400 | 400 | ||||||
Total Assets
|
$ | 57,738 | $ | 13,324 | ||||
LIABILITIES & STOCKHOLDERS’ EQUITY
|
||||||||
Current Liabilities:
|
||||||||
Accounts payable
|
$ | 1,339 | $ | 1,111 | ||||
Accrued expenses
|
2,887 | 2,972 | ||||||
Common stock warrant liability
|
10,304 | 6,996 | ||||||
Equipment loans and capitalized leases, current portion
|
67 | 68 | ||||||
Total Current Liabilities
|
14,597 | 11,147 | ||||||
Equipment loans and capitalized leases, non-current portion
|
205 | 224 | ||||||
Other liabilities
|
703 | 689 | ||||||
Total Liabilities
|
15,505 | 12,060 | ||||||
Stockholders’ Equity:
|
||||||||
Preferred stock, $0.001 par value; 5,000 shares authorized; no shares issued or outstanding
|
– | – | ||||||
Common stock, $0.001 par value; 100,000 shares authorized; 43,382 and 24,603 shares issued, 43,361 and 24,582 shares outstanding respectively, at March 31, 2012 and December 31, 2011
|
43 | 25 | ||||||
Additional paid-in capital
|
452,680 | 401,713 | ||||||
Accumulated deficit
|
(407,436 | ) | (397,420 | ) | ||||
Treasury stock (at cost); 21 shares at March 31, 2012 and December 31, 2011
|
(3,054 | ) | (3,054 | ) | ||||
Total Stockholders’ Equity
|
42,233 | 1,264 | ||||||
Total Liabilities & Stockholders’ Equity
|
$ | 57,738 | $ | 13,324 |
Three Months Ended
|
||||||||
March 31,
|
||||||||
2012
|
2011
|
|||||||
Grant Revenue
|
$ | – | $ | 381 | ||||
Expenses:
|
||||||||
Research and development
|
4,533 | 4,620 | ||||||
General and administrative
|
2,047 | 1,820 | ||||||
Total expenses
|
6,580 | 6,440 | ||||||
Operating loss
|
(6,580 | ) | (6,059 | ) | ||||
Change in fair value of common stock warrant liability
|
(3,434 | ) | 2,228 | |||||
Other income / (expense):
|
||||||||
Interest and other income
|
2 | 4 | ||||||
Interest and other expense
|
(4 | ) | (10 | ) | ||||
Other income / (expense), net
|
(2 | ) | (6 | ) | ||||
Net loss
|
$ | (10,016 | ) | $ | (3,837 | ) | ||
Net loss per common share – Basic and diluted
|
$ | (0.37 | ) | $ | (0.21 | ) | ||
Weighted average number of common share outstanding – basic and diluted
|
27,162 | 18,114 |
Three Months Ended
|
||||||||
March 31,
|
||||||||
2012
|
2011
|
|||||||
Cash flows from operating activities:
|
||||||||
Net loss
|
$ | (10,016 | ) | $ | (3,837 | ) | ||
Adjustments to reconcile net loss to net cash used in operating activities:
|
||||||||
Depreciation and amortization
|
288 | 324 | ||||||
Stock-based compensation and 401(k) match
|
542 | 316 | ||||||
Fair value adjustment of common stock warrants
|
3,434 | (2,228 | ) | |||||
Loss / (gain) on sale of equipment
|
- | 9 | ||||||
Changes in:
|
||||||||
Prepaid expenses and other current assets
|
49 | (4 | ) | |||||
Accounts payable
|
228 | 188 | ||||||
Accrued expenses
|
(85 | ) | 79 | |||||
Other assets
|
- | 5 | ||||||
Other liabilities and accrued interest
|
14 | 79 | ||||||
Net cash used in operating activities
|
(5,546 | ) | (5,069 | ) | ||||
Cash flows from investing activities:
|
||||||||
Purchase of property and equipment
|
(138 | ) | (25 | ) | ||||
Net cash used in investing activities
|
(138 | ) | (25 | ) | ||||
Cash flows from financing activities:
|
||||||||
Proceeds from issuance of securities, net of expenses
|
43,604 | 22,583 | ||||||
Proceeds from exercise of common stock warrants
|
6,713 | – | ||||||
Repayment of equipment loans and capital lease obligations
|
(20 | ) | (37 | ) | ||||
Net cash provided by financing activities
|
50,297 | 22,546 | ||||||
Net increase in cash and cash equivalents
|
44,613 | 17,452 | ||||||
Cash and cash equivalents – beginning of period
|
10,189 | 10,211 | ||||||
Cash and cash equivalents – end of period
|
$ | 54,802 | $ | 27,663 | ||||
Supplementary disclosure of cash flows information:
|
||||||||
Interest paid
|
$ | 4 | $ | 6 |
●
|
In connection with our February 2011 public offering, we issued 15-month warrants to purchase five million shares of our common stock at an exercise price of $2.94 per share (15-month warrants) of which 2,233,000 warrants have been exercised through March 31, 2012. If the market price of our common stock should exceed $2.94 at any time prior to May 22, 2012 (the expiration date of these warrants), and if the holders determine (in their discretion) to exercise the remaining outstanding 15-month warrants and we have an effective registration statement covering the warrant shares, we potentially could raise up to an additional $8.1 million.
|
●
|
Also in connection with the February 2011 public offering, we issued the February 2011 five-year warrants to purchase five million shares of our common stock at an exercise price of $3.20 per share, of which 46,250 have been exercised through March 31, 2012. These warrants also contain anti-dilutive provisions that adjust the exercise price if we issue any common stock, securities convertible into common stock, or other securities (subject to certain exceptions) at a value below the then-existing exercise price. As a result of the March 2012 public offering, the exercise price of these warrants has been adjusted downward to $2.80 per share. Thus, if the market price of our common stock should exceed $2.80 at any time prior to February 2016 (the expiration date of these warrants), and if the holders determine (in their discretion) to exercise the remaining outstanding February 2011 five-year warrants, and we have an effective registration statement covering the warrant shares to be issued upon exercise of the warrants, we potentially could raise up to an additional $13.9 million.
|
●
|
We are engaged in discussions with potential strategic partners who could provide development and commercial expertise as well as financial resources (potentially in the form of upfront payments, milestone payments, commercialization royalties and a sharing of research and development expenses) to support the development of SURFAXIN LS and AEROSURF and, if approved, the introduction of these products in the European Union and various markets outside the United States.
|
●
|
In the future, if our efforts are successful, we believe that debt could potentially be a component of our capital structure and financing plans. We could potentially enter into capital equipment financing facilities, revolving working capital lines of credit, term loans and other similar transactions to satisfy our working capital requirements.
|
●
|
We have a CEFF with Kingsbridge Capital Ltd. (Kingsbridge) that could allow us, at our discretion, to raise capital (subject to certain conditions, including volume limitations) at a time and in amounts we deem suitable to support our business plans. Based on the closing market price of our common stock on May 4, 2012 ($2.71) and assuming that all available shares are issued, the potential availability under our CEFF is approximately $2.7 million.
|
●
|
In December 2011, we established an “at-the-market” program (ATM Program), which allows us, at our discretion and at such times that we may choose, to sell up to a maximum of $15 million of shares of common stock. As of March 31, 2012, $13.4 million remained available under the ATM Program.
|
●
|
We have agreed in connection with our March 2012 public offering that we will not issue or sell (with certain limited exceptions) securities, including under our CEFF and ATM Program, for a period of 90 days ending in June 2012.
|
|
·
|
Level 1 – Quoted prices in active markets for identical assets and liabilities.
|
|
·
|
Level 2 – Inputs other than Level 1 that are observable, either directly or indirectly, such as quoted prices for similar assets or liabilities, quoted prices in markets that are not active, or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities.
|
|
·
|
Level 3 – Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities.
|
Fair Value
|
Fair value measurement using
|
|||||||||||||||
March 31, 2012
|
Level 1
|
Level 2
|
Level 3
|
|||||||||||||
Assets:
|
||||||||||||||||
Money Market
|
$ | 47,377 | $ | 47,377 | $ | – | $ | – | ||||||||
Certificate of Deposit
|
400 | 400 | – | – | ||||||||||||
Total Assets
|
$ | 47,777 | $ | 47,777 | $ | – | $ | – | ||||||||
Liabilities:
|
||||||||||||||||
Common stock warrant liability
|
$ | 10,304 | $ | – | $ | – | $ | 10,304 |
Fair Value
|
Fair value measurement using
|
|||||||||||||||
December 31, 2011
|
Level 1
|
Level 2
|
Level 3
|
|||||||||||||
Assets:
|
||||||||||||||||
Money Market
|
$ | 9,377 | $ | 9,377 | $ | – | $ | – | ||||||||
Certificate of Deposit
|
400 | 400 | – | – | ||||||||||||
Total Assets
|
$ | 9,777 | $ | 9,477 | $ | – | $ | – | ||||||||
Liabilities:
|
||||||||||||||||
Common stock warrant liability
|
$ | 6,996 | $ | – | $ | – | $ | 6,996 |
(in thousands)
|
Fair Value Measurements of
Common Stock Warrants Using
Significant Unobservable Inputs
(Level 3)
|
|||
Balance at December 31, 2011
|
$ | 6,996 | ||
Exercise of warrants
(1)
|
(126 | ) | ||
Change in fair value of common stock warrant liability
|
3,434 | |||
Balance at March 31, 2012
|
$ | 10,304 |
Significant Unobservable Input Assumptions of Level 3 Valuations
|
March 31, 2012
|
December 31, 2011
|
||||||
Historical Volatility
|
89% - 113 | % | 98% - 116 | % | ||||
Expected Term (in years)
|
2.1 - 3.9 | 2.4 - 4.2 | ||||||
Risk-free interest rate
|
0.33% - 0.78 | % | 0.31% - 0.60 | % |
Fair Value of Warrants
(in thousands)
|
|||||||||||||||||
Issuance
Date
|
Number of
Warrant Shares
Issuable
|
Exercise
Price
|
Warrant
Expiration
Date
|
Issuance
Date
|
March 31,
2012
|
||||||||||||
5/13/2009
|
466,667 | $ | 17.25 |
5/13/2014
|
$ | 3,360 | $ | 119 | |||||||||
2/23/2010
|
916,669 | 12.75 |
2/23/2015
|
5,701 | 896 | ||||||||||||
2/22/2011
|
4,953,750 | 2.80 |
2/22/2016
|
8,012 | 9,289 |
March 31,
|
||||||||
2012
|
2011
|
|||||||
Weighted average expected volatility
|
113 | % | 112 | % | ||||
Weighted average expected term
|
4.8 years
|
4.9 years
|
||||||
Weighted average risk-free interest rate
|
1.08 | % | 1.47 | % | ||||
Expected dividends
|
– | – |
(in thousands)
|
Three Months Ended
|
|||||||
March 31,
|
||||||||
2012
|
2011
|
|||||||
Research and development
|
$ | 120 | $ | 63 | ||||
General and administrative
|
278 | 118 | ||||||
Total
|
$ | 398 | $ | 181 |
·
|
SURFAXIN for the Prevention of Respiratory Distress Syndrome (RDS) in Premature Infants at High Risk for RDS
|
We are focused on post-approval activities in preparation for the commercial introduction of SURFAXIN, including building a commercial and medical affairs organization. Because SURFAXIN is a hospital-based product, we will work with hospitals that have NICUs to include SURFAXIN on each such hospital’s formulary, which is the approved list of drugs and therapeutics that the hospital will purchase. A hospital’s formulary is usually determined under procedures established by the medical staff and pharmacy department. To maximize formulary adoption, we are also performing development activities to manufacture a second SURFAXIN vial size. To facilitate proper preparation and administration of SURFAXIN, we plan to make available to hospitals a dry block-warming device called a WARMING CRADLE
®
that is designed to warm drug vials at the same temperature that is designated in the SURFAXIN prescribing information. We have registered the WARMING CRADLE with the FDA as a Class I, exempt medical device. We are also working with hospitals to clear our WARMING CRADLE at each of these hospitals to make WARMING CRADLEs available for use.
|
·
|
AFECTAIR
AFECTAIR is a series of disposable ventilator circuit / patient interface connectors and related componentry that introduces inhaled therapies directly to the patient interface and minimizes the number of connections in the regulatory circuit without compromising ventilatory support. We have registered our initial AFECTAIR device in the United States and plan to introduce this neonatal-sized device in the fourth quarter of 2012. We expect that our commercial and medical affairs organization will support the planned commercial introduction of AFECTAIR in the United States. We originally planned to enter into arrangements with third-party distributors to support the introduction of AFECTAIR; however, because we generally expect to market the AFECTAIR neonatal-sized device to the same hospitals to which we plan to market SURFAXIN, we are currently assessing various methods of distribution and will determine which approach would be more likely to maximize returns and result in the successful introduction of AFECTAIR. We also continue our efforts to complete development of the follow-on AFECTAIR and AFECTAIR DUO devices, as well as the registration of the initial AFECTAIR device in the European Union.
|
·
|
SURFAXIN LS and AEROSURF Development Programs
We are continuing our development activities for both SURFAXIN LS and AEROSURF development programs. In 2012, we plan to advance the technology transfer of our SURFAXIN LS lyophilized manufacturing process to a cGMP-compliant, third-party contract manufacturer with expertise in lyophilized formulations and we expect to have further interactions with the FDA regarding the SURFAXIN LS development program as well as obtain regulatory guidance with respect to our planned development program in Europe. To advance our AEROSURF program, we continue our efforts to optimize the design of our capillary aerosolization device with our own engineering staff and third-party medical device experts. As development work proceeds, we plan to seek regulatory guidance for AEROSURF for the United States and Europe. We intend to initiate our clinical programs for each of these product candidates after we have developed a final development strategy and after we have secured the necessary strategic alliances and/or capital. For a detailed discussion of these development programs,
see,
“Item 1 – Business – Surfactant Replacement Therapy for Respiratory Medicine – Respiratory Distress Syndrome in Premature Infants (RDS) – SURFAXIN LS™ – Lyophilized SURFAXIN
®
for RDS in Premature Infants,” and “– AEROSURF
®
for RDS in Premature Infants,” in our 2011 Form 10-K.
|
(Dollars in thousands)
|
Three Months Ended
March 31,
|
||||||||
Research and Development Expenses
(1)
|
2012
|
2011
|
|||||||
Product development and manufacturing
|
$ | 3,103 | $ | 3,046 | |||||
Medical and regulatory operations
|
823 | 905 | |||||||
Direct preclinical and clinical programs
|
607 | 669 | |||||||
Total Research and Development Expenses
|
$ | 4,533 | $ | 4,620 |
·
|
With respect to SURFAXIN drug product, data from a new pharmacoeconomic analysis was presented at the 2012 Pediatric Academies Society Annual Conference (2012 PAS, April 28 – May 1, 2012) in Boston, MA. The analysis demonstrates that the previously-reported lower rate of reintubation observed in infants treated with SURFAXIN, when compared with infants treated with Curosurf
®
and Survanta
®
, also resulted in a potential hospital cost savings of $160,000 to $252,000 per 100 infants. As previously reported
in the
Journal of Neonatal- Perinatal Medicine
(Volume 4, Number 2, 2011) in a manuscript entitled “Reintubation and risk of morbidity and mortality in preterm infants after surfactant replacement therapy” (Guardia et al.), retrospective analysis of data from our two large phase 3 trials, which involved a total of 1546 patients, shows that the reintubation rate in SURFAXIN-treated infants ranged from 33 to 35 percent and was significantly lower (
p
< 0.05) than Curosurf-treated infants (47 percent), the current global market leader, and Survanta-treated infants (43 percent). Although the retrospective analysis also demonstrates that reintubation results in an increase in morbidities, such as bronchopulmonary dysplasia and air leak, the estimated cost savings from the pharmacoeconomic modeling reported at the 2012 PAS Conference does not include the additional costs associated with these morbidities. We anticipate that additional studies will be conducted and potentially presented at congresses in 2012 and 2013.
|
·
|
With respect to the AFECTAIR series of devices, data from performance studies conducted using the AFECTAIR neonatal-size device have been presented at 2012 PAS. The study evaluated the difference between the calculated inhaled dose and the actual delivered dose in an
in vitro
simulated infant ventilation system using the AFECTAIR neonatal-size device as compared to standard of care. Albuterol was aerosolized with a jet nebulizer and delivered using both the AFECTAIR neonatal-size device and standard of care. The investigators observed a 10-14 fold increase in the
in vitro
inhaled dose of albuterol at various ventilation conditions when using the AFECTAIR neonatal-size device compared with standard of care. The study concluded that the AFECTAIR neonatal-size device delivered a higher amount of albuterol
in vitro
that was more representative of the calculated inhaled dose of albuterol compared with standard of care and that clinical use of the AFECTAIR neonatal-size device may allow for a more accurate approximation of actual delivered dose of inhaled therapies when targeting a calculated inhaled dose for critical care patients. We anticipate that further studies will be conducted and potentially presented at congresses in 2012 and 2013.
|
Three Months Ended
|
||||||||
(in thousands)
|
March 31,
|
|||||||
2012
|
2011
|
|||||||
Interest income
|
$ | 2 | $ | 4 | ||||
Interest expense
|
(4 | ) | (6 | ) | ||||
Other income / (expense)
|
– | (4 | ) | |||||
Other income / (expense), net
|
$ | (2 | ) | $ | (6 | ) |
●
|
In connection with our February 2011 public offering, we issued 15-month warrants to purchase five million shares of our common stock at an exercise price of $2.94 per share (15-month warrants) of which 2,233,000 warrants have been exercised through March 31, 2012. If the market price of our common stock should exceed $2.94 at any time prior to May 22, 2012 (the expiration date of these warrants), and if the holders determine (in their discretion) to exercise the remaining outstanding 15-month warrants and we have an effective registration statement covering the warrant shares, we potentially could raise up to an additional $8.1 million.
|
●
|
Also in connection with the February 2011 public offering, we issued the February 2011 five-year warrants to purchase five million shares of our common stock at an exercise price of $3.20 per share, of which 46,250 have been exercised through March 31, 2012. These warrants also contain anti-dilutive provisions that adjust the exercise price if we issue any common stock, securities convertible into common stock, or other securities (subject to certain exceptions) at a value below the then-existing exercise price. As a result of the March 2012 public offering, the exercise price of these warrants has been adjusted downward to $2.80 per share. Thus, if the market price of our common stock should exceed $2.80 at any time prior to February 2016 (the expiration date of these warrants), and if the holders determine (in their discretion) to exercise the remaining outstanding February 2011 five-year warrants and we have an effective registration statement covering the warrant shares to be issued upon exercise of the warrants, we potentially could raise up to an additional $13.9 million.
|
●
|
We are engaged in discussions with potential strategic partners who could provide development and commercial expertise as well as financial resources (potentially in the form of upfront payments, milestone payments, commercialization royalties and a sharing of research and development expenses) to support the development of SURFAXIN LS and AEROSURF and, if approved, the introduction of these products in markets outside the United States.
|
●
|
In the future, if our efforts are successful, we believe that debt could potentially be a component of our capital structure and financing plans. We could potentially enter into capital equipment financing facilities, revolving working capital lines of credit, term loans and other similar transactions to satisfy our working capital requirements.
|
●
|
We have a CEFF with Kingsbridge Capital Ltd. (Kingsbridge) that could allow us, at our discretion, to raise capital (subject to certain conditions, including volume limitations) at a time and in amounts we deem suitable to support our business plans. Based on the closing market price of our common stock on May 4, 2012 ($2.71) and assuming that all available shares are issued, the potential availability under our CEFF is approximately $2.7 million.
|
●
|
In December 2011, we established an “at-the-market” program (ATM Program), which allows us, at our discretion and at such times that we may choose, to sell up to a maximum of $15 million of shares of common stock. As of March 31, 2012, $13.4 million remained available under the ATM Program.
|
●
|
We have agreed in connection with our March 2012 public offering that we will not issue or sell (with certain limited exceptions) securities, including under our CEFF and ATM Program, for a period of 90 days ending in June 2012.
|
(In millions)
|
Three Months Ended
March 31,
|
|||||||
2012
|
2011
|
|||||||
Financings pursuant to common stock offerings
|
$ | 42.1 | $ | 21.6 | ||||
Financings under the ATM Program
|
1.5 | – | ||||||
Exercise of warrants
|
6.7 | – | ||||||
Financings under the CEFF
|
– | 1.0 | ||||||
Debt service payments
|
(0.0 | ) | (0.1 | ) | ||||
Cash flows from financing activities, net
|
$ | 50.3 | $ | 22.5 |
ITEM 4.
|
ITEM 1.
|
ITEM 1A.
|
|
·
|
the number of infants diagnosed with respiratory distress syndrome (“RDS”), and those that may be treated with SURFAXIN over time;
|
|
·
|
the number of hospitals and critical care centers that will use AFECTAIR devices for critical care patients;
|
|
·
|
the safety and efficacy of SURFAXIN, our ability to provide acceptable evidence of safety and efficacy, and the perceived safety and efficacy of SURFAXIN by the medical community, regulatory agencies and insurers and other payers, on both a short and long-term basis;
|
|
·
|
SURFAXIN’s and AFECTAIR’s perceived advantages over alternative treatment methods (including relative convenience and ease of administration and prevalence and severity of any adverse events, including any unexpected adverse events of which we become aware);
|
|
·
|
perception of our products and devices by members of the healthcare community, including physicians;
|
|
·
|
the acceptance of AFECTAIR devices as the standard of care for delivery of inhaled therapies for patients requiring ventilatory support;
|
|
·
|
budget impact of adoption of our products and devices on relevant formularies and the availability, cost and potential advantages of alternative treatments, including less expensive generic drugs and other competitive products;
|
|
·
|
the claims, limitations, warnings and other information in SURFAXIN’s labeling;
|
|
·
|
our establishment of an effective sales force and the ability of our sales, marketing and other representatives to (a) accurately describe SURFAXIN consistent with its approved labeling and (b) educate critical care providers and hospitals regarding the potential utility of AFECTAIR devices;
|
|
·
|
the ability of patients and physicians and other providers to obtain and maintain sufficient coverage and reimbursement by third-party payers, including government payers;
|
|
·
|
the receipt and maintenance of marketing approvals from the United States and foreign regulatory authorities;
|
|
·
|
the growth of commercial sales in the United States and other countries; and
|
|
·
|
the establishment and maintenance of commercial manufacturing capabilities ourselves or through third-party manufacturers, and our ability to meet commercial demand for SURFAXIN.
|
|
·
|
the perceived safety and efficacy of our products;
|
|
·
|
the potential advantages over alternative treatments;
|
|
·
|
the prevalence and severity of any side effects;
|
|
·
|
the relative convenience and ease of administration;
|
|
·
|
our ability to gain access to the entire market through our distributor arrangements;
|
|
·
|
the rate of preterm births;
|
|
·
|
the willingness of the target patient population to try new products and of physicians to prescribe our products;
|
|
·
|
the availability of different size drug vials and medical devices to meet the specific needs of healthcare practitioners;
|
|
·
|
the pharmacoeconomic benefits (which are determined by comparing, among other things, the cost and effects of a product when compared to different treatment options) and cost-effectiveness of our products;
|
|
·
|
the willingness of the target hospitals to accept and employ the WARMING CRADLE
|
|
·
|
the effectiveness of our marketing strategy and distribution support; and
|
|
·
|
the sufficiency of coverage or reimbursement by third parties.
|
|
·
|
the number of clinical sites;
|
|
·
|
the size of the patient population;
|
|
·
|
the proximity of patients to the clinical sites;
|
|
·
|
the eligibility and enrollment criteria for the study;
|
|
·
|
the willingness of patients or their parents or guardians to participate in the clinical trial;
|
|
·
|
the existence of competing clinical trials;
|
|
·
|
the existence of alternative available products; and
|
|
·
|
geographical and geopolitical considerations.
|
|
·
|
developing products;
|
|
·
|
undertaking preclinical testing and human clinical trials;
|
|
·
|
obtaining FDA and other regulatory approvals or products; and
|
|
·
|
manufacturing and marketing products.
|
ITEM 6.
|
Discovery Laboratories, Inc.
|
|||
(Registrant)
|
|||
Date:
May 15, 2012
|
By:
|
/s/ W. Thomas Amick
|
|
W. Thomas Amick, Chairman of the Board and
|
|||
Chief Executive Officer
|
Date: May 15, 2012
|
By:
|
/s/ John G. Cooper
|
|
John G. Cooper
|
|||
President and Chief Financial Officer
|
|||
(Principal Financial Officer)
|
Exhibit No.
|
Description
|
Method of Filing
|
|
3.1
|
Amended and Restated Certificate of Incorporation of Discovery Laboratories, Inc. (Discovery), as amended as of and October 3, 2011
|
Incorporated by reference to Exhibit 3.1 to Discovery's Form 8-K, as filed with
the SEC on October 3, 2011.
|
|
3.2
|
Certificate of Designations, Preferences and Rights of Series A Junior Participating Cumulative Preferred Stock of Discovery, dated February 6, 2004
|
Incorporated by reference to Exhibit 2.2 to Discovery’s Form 8-A, as filed with the SEC on February 6, 2004.
|
|
3.3
|
Amended and Restated By-Laws of Discovery, as amended effective September 3, 2009
|
Incorporated by reference to Exhibit 3.1 to Discovery’s Current Report on Form 8-K, as filed with the SEC on September 4, 2009.
|
|
4.1
|
Shareholder Rights Agreement, dated as of February 6, 2004, by and between Discovery and Continental Stock Transfer & Trust Company
|
Incorporated by reference to Exhibit 10.1 to Discovery’s Current Report on Form 8-K, as filed with the SEC on February 6, 2004.
|
|
4.2
|
Warrant Agreement dated May 22, 2008 by and between Kingsbridge Capital Limited and Discovery
|
Incorporated by reference to Exhibit 4.1 to Discovery’s Current Report on Form 8-K as filed with the SEC on May 28, 2008.
|
|
4.3
|
Warrant Agreement dated December 12, 2008 by and between Kingsbridge Capital Limited and Discovery
|
Incorporated by reference to Exhibit 4.1 to Discovery’s Current Report on Form 8-K, as filed with the SEC on December 15, 2008.
|
|
4.4
|
Form of Stock Purchase Warrant issued in May 2009
|
Incorporated by reference to Exhibit 10.3 to Discovery’s Current Report on Form 8-K, as filed with the SEC on May 8, 2009.
|
|
4.5
|
Form of Stock Purchase Warrant issued in February 2010
|
Incorporated by reference to Exhibit 4.1 to Discovery’s Current Report on Form 8-K, as filed with the SEC on February 18, 2010.
|
|
4.6
|
Warrant Agreement, dated as of April 30, 2010, by and between Discovery and PharmaBio
|
Incorporated by reference to Exhibit 4.1 to Discovery’s Current Report on Form 8-K, as filed with the SEC on April 28, 2010.
|
|
4.7
|
Warrant Agreement dated June 11, 2010 by and between Kingsbridge Capital Limited and Discovery
|
Incorporated by reference to Exhibit 4.1 to Discovery’s Current Report on Form 8-K, as filed with the SEC on June 14, 2010.
|
|
4.8
|
Form of Five-Year Warrant issued on June 22, 2010
|
Incorporated by reference to Exhibit 4.1 to Discovery’s Current Report on Form 8-K, as filed with the SEC on June 17, 2010.
|
Exhibit No.
|
Description | Method of Filing | |
4.9
|
Warrant Agreement, dated as of October 12, 2010, by and between Discovery and PharmaBio
|
Incorporated by reference to Exhibit 4.1 to Discovery’s Current Report on Form 8-K, as filed with the SEC on October 13, 2010.
|
|
4.10
|
Form of Voting Agreement between RSA Holders and Discovery dated November 12, 2010
|
Incorporated by reference to Exhibit 4.13 to Discovery’s Annual Report on Form 10-KSB for the year ended December 31, 2010, as filed with the SEC on March 31, 2011.
|
|
4.11
|
Form of Five-Year Warrant issued on February 22, 2011
|
Incorporated by reference to Exhibit 4.1 to Discovery’s Current Report on Form 8-K, as filed with the SEC on February 16, 2011.
|
|
4.12
|
Form of Short Term Warrant issued on February 22, 2011
|
Incorporated by reference to Exhibit 4.2 to Discovery’s Current Report on Form 8-K, as filed with the SEC on February 16, 2011.
|
|
10.1
+
|
Product Development and Supply Agreement between Discovery and Lacey Manufacturing Company, a Division of Precision Engineered Products, LLC
|
Filed herewith
|
|
10.2
*
|
Form of Employee Option Agreement under Discovery’s 2011 Long-Term Incentive Plan
|
Filed herewith
|
|
10.3
*
|
Form on Non-Employee Director Agreement under Discovery’s 2011 Long-Term Incentive Plan
|
Filed herewith
|
|
Certification of Chief Executive Officer and Principal Executive Officer pursuant to Rule 13a-14(a) of the Exchange Act
|
Filed herewith
|
||
Certification of Chief Financial Officer and Principal Accounting Officer pursuant to Rule 13a-14(a) of the Exchange Act
|
Filed herewith
|
||
Certification of Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
Filed herewith
|
Exhibit No.
|
Description | Method of Filing | |
101.1
|
The following consolidated financial
statements from the Discovery Laboratories,
Inc. Annual Report on Form 10-K for the
year ended December 31, 2011, formatted in
Extensive Business Reporting Language
(“XBRL”): (i) Balance Sheets as of
December 31, 2011 and December 31, 2010,
(ii) Statements of Operations for the years
ended December 31, 2011 and December 31,
2010, (iii) Statements of Changes in Equity
for the years ended December 31, 2011 and
December 31, 2010, (iv) Statements of Cash
Flows for the years ended December 31,
2011 and December 31, 2010, and (v) Notes
to consolidated financial statements.
|
||
101.INS
|
Instance Document
|
Filed herewith
|
|
101.SCH
|
XBRL Taxonomy Extension Schema Document
|
Filed herewith
|
|
101.CAL
|
XBRL Taxonomy Extension Calculation Linkbase Document
|
Filed herewith
|
|
101.LAB
|
XBRL Taxonomy Extension Label Linkbase Document
|
Filed herewith
|
|
101.PRE
|
XBRL Taxonomy Extension Presentation Linkbase Document
|
Filed herewith
|
1.
|
Purpose
. This
Agreement
relates to the development and
Manufacture
of
AFECTAIR Devices
, as described in Appendix A (the “
Program
”) and in accordance with the
Quality Agreement
, which will appended to this
Agreement
as Appendix B (the “
Quality Agreement
”) prior to the initiation of commercial production, and any applicable
Purchase Order
issued under this
Agreement
.
|
2.
|
Term
.
Subject to Section 30, this
Agreement
will remain effective for a period of three years from the date of the first production
Purchase Order
for
Manufacture
of commercially saleable
AFECTAIR Devices
, or four years from the Effective Date, whichever is shorter (the “
Term
”). The
Term
may be extended by written agreement of the
Parties
.
|
3.
|
Definitions
.
If not otherwise defined in this
Agreement
, the terms presented in bold type shall have the meanings set forth in this Section 3. Unless otherwise indicated, references to Sections refer to Sections in this
Agreement
and references to Sections in the accompanying Appendices to this
Agreement
refer to each such Appendix, as applicable. Unless otherwise defined, the defined terms in this
Agreement
and the Appendices attached to this
Agreement
have the following meanings:
|
3.1.
|
“AFECTAIR” is
DSCO
’s trademark registered in the
US
Patent and Trademark Office for a medical device intended to simplify delivery of aerosolized medication to patients requiring positive pressure ventilatory support as described in the International Patent Publication WO 2009/117422 and
US
Patent Application Serial Number 12/922981.
|
3.2.
|
“AFECTAIR
DUO” is
DSCO
’s trademark for a medical device combined with a delivery circuit as described in the International Patent Publication WO 2009/117422 and
US
Patent Application Serial Number 12/922981.
|
3.3.
|
“
AFECTAIR Devices
” means either or both of the AFECTAIR and AFECTAIR DUO medical devices.
|
3.4.
|
“
Affiliate
” shall mean any individual, firm, corporation or other legal entity that directly or indirectly controls, is controlled by, or is under common control with, a
Party
. As used in the preceding sentence, “control” means possession, whether direct or indirect, of the power to direct or cause the direction of the management and policies of such entity, whether pursuant to the ownership of voting securities, by contract or otherwise. For the purposes of this
Agreement
,
LACEY
and Precision Engineered Products, LLC are considered
Affiliates
with respect to each other.
|
3.5.
|
“
Agreement
” means this Product Development and Supply Agreement, including the Appendixes, Schedules and Addendums attached hereto, and the
Quality Agreement,
and includes all
Purchase Orders
issued pursuant to this
Agreement
, as each may be amended from time to time.
|
3.6.
|
“
Confidential Information
” has the meaning set forth in the Mutual Confidential Disclosure Agreement dated November 24, 2010, between
DSCO
and
LACEY
.
|
3.7.
|
“
Days
” means business days, unless otherwise noted in a specific instance.
|
3.8.
|
“
Design
” means activities related to design of
AFECTAIR Devices
, changes to the design and drawings, including without limitation, designing a device to be
Manufactured
to contain a single part or multiple parts.
|
3.9.
|
“
DSCO
Improvements
” has the meaning set forth in Section 7.2.2.
|
3.10.
|
“
DSCO
Representative
” means the individual(s) designated to receive notices related to the
Manufacturing
operations and regulatory developments.
DSCO
will notify
LACEY
of the name and address of its representative within five
Days
after the
Effective Date
.
|
3.11.
|
“
Equipment
” has the meaning set forth in Section 5. 2 and Appendix A-2, as the same may be amended from time to time.
|
3.12.
|
“
EU
” means the European Union and includes at a minimum the following countries: United Kingdom, Germany, France, Italy, and Spain.
|
3.13.
|
“
FDA
” means U.S. Food and Drug Administration.
|
3.14.
|
“
FDC Act
” means the Federal Food, Drug, and Cosmetic Act, as amended.
|
3.15.
|
“
Good Manufacturing Practices
” or “
GMP
” means current good manufacturing practices, as specified in regulations promulgated from time to time by the
FDA
in its
Quality System Regulations,
and comparable regulations by other international Regulatory Authorities (e.g., EMA) for the manufacture and testing of pharmaceutical products.
|
3.16.
|
“
Initial Contact Date
” has the meaning set forth in the Background to the
Agreement
.
|
3.17.
|
“
Intellectual Property
” means all patents, patent applications, copyrights, trademarks, trade names, trade secrets, know-how, service marks, licenses and other intellectual property rights of a
Party
, that may be secured in any place under
Laws
now or hereafter in effect.
|
3.18.
|
“
Invention
” means any new or improved apparatus, process, information, product, invention, discovery, idea, suggestion, material, data, equipment, design, circuit component, drawing, tooling, prototype, report, computer software, documentation or other
Intellectual Property
or know-how (whether or not patentable) discovered, produced, conceived, created or reduced to practice by either or both
Parties
(or their
Affiliates
, sublicensees, subcontractors, successors or assigns).
|
3.19.
|
“
ISO 13485
” means the International Organization of Standardization’s standard that represents the requirements for a comprehensive quality management system for the design and development, manufacture, installation and servicing of medical devices.
|
3.20.
|
“
JOINT Improvements
” has the meaning set forth in Section 7.2.3.
|
3.21.
|
“
Labeling
” means all labels and other written, printed, or graphic material affixed to or accompanying any
AFECTAIR Devices
or any containers of
AFECTAIR Devices
or wrappers accompanying such
AFECTAIR Devices
(e.g., instruction sheets, package inserts).
|
3.22.
|
“
LACEY Improvements
” has the meaning set forth in Section 7.2.1.
|
3.23.
|
“
LACEY Representative
” means the individual(s) designated to receive notices related to the
Manufacturing
operations and regulatory developments.
LACEY
will notify
DSCO
of the name and address of its representative within five (5)
Days
after the
Effective Date
.
|
3.24.
|
“
Laws
” means all applicable laws, statutes, rules, regulations, ordinances, and pronouncements of law of any foreign, federal, state, or local government.
|
3.25.
|
“
Manufacture
” and “
Manufacturing
” means the manufacturing, processing, holding, testing,
Labeling
, and packaging of
AFECTAIR Devices
and includes all related activities other than
Design
, including without limitation, purchase, storage and inspection of raw materials/components through molding, assembly, in-process inspections, storage of in-process assemblies,
Labeling
, packaging, final inspection and storage and handling of finished package product.
|
3.26.
|
“
Party
” means
DSCO
or
LACEY
and, when used in the plural, means both
DSCO
and
LACEY,
or their respective transferees.
|
3.27.
|
“
Preparatory Activities
” has the meaning set forth in the Background Section of this
Agreement
.
|
3.28.
|
“
Program
” has the meaning set forth in Section 1 of this
Agreement
.
|
3.29.
|
“
Program-related Intellectual Property
” has the meaning set forth in Section 7.2.4.
|
3.30.
|
“
Purchase Order
” means a
DSCO
purchase order issued pursuant to this
Agreement
providing for
LACEY
Services
, which has been executed by both
Parties
and contains the material terms of the
Services
, including either the
LACEY
proposal for, or a description of, the
Services
being authorized thereunder, timing, pricing, and other requirements, restrictions or agreements of the
Parties
related thereto. “
Purchase Order
” includes a
DSCO
purchase order for production supply as defined in Section 8.4. All
Purchase Orders
shall be in
US
dollars.
|
3.31.
|
“Regulatory Authority
” means any applicable federal, state, local, or foreign regulatory agency, department, bureau, or other governmental agency (including a court of competent jurisdiction) and includes for the purposes of this Agreement an ISO Certified Body.
|
3.32.
|
“
Quality Agreement
” has the meaning set forth in Section 1.
|
3.33.
|
“
Quality System Regulation
” or “
QSR
” means the
FDA
’s quality system requirements applicable to manufacturers of finished devices, codified at 21 C.F.R. Part 820.
|
3.34.
|
“
Representatives
” means a
Party
’s directors, officers, employees, consultants, attorneys, accountants, advisors,
Affiliates
and agents and other parties who may receive
Confidential Information
in furtherance of the
Program
.
|
3.35.
|
“
SEC
” means the U.S. Securities and Exchange Commission.
|
3.36.
|
“
Services
” has the meaning set forth in Section 4 of this
Agreement
.
|
3.37.
|
“
Specifications
” means the specifications for each of the
AFECTAIR Devices
as set forth in each
Purchase Order
and as described in Section 12.1.
|
3.38.
|
“
Term
” has the meaning set forth in Section 2.
|
3.39.
|
“
US
” means United States of America.
|
4.
|
LACEY
’s development activities under this
Agreement
(the “
Services
”) include providing regulatory, planning, and development support for the introduction of the
AFECTAIR Devices
for commercial distribution in the
US
and/or
EU
,
Manufacture
of
AFECTAIR Devices
, and such other activities related thereto as provided in this
Agreement
and in any
Purchase Order
issued under this
Agreement
.
|
5.
|
Development and qualification activities from and after the date of this
Agreement
will be quoted based on identified deliverables and incorporated into a
Purchase Order
.
|
5.1.
|
The terms of a
Purchase Order
shall not be subject to change, except as agreed by the
Parties
. If the scope of
Services
in a
Purchase Order
is expanded or otherwise changed,
LACEY
shall have the opportunity to revise the quotation. If any such revised quotation is not acceptable to
DSCO
,
DSCO
may determine to cease the activities and terminate such
Purchase Order
, in which event
LACEY
shall cease its activities under such
Purchase Order
as promptly as possible and
DSCO
shall pay
LACEY
for the
Services
provided prior to termination.
|
5.2.
|
LACEY
is authorized to purchase on
DSCO’S
behalf the
Equipment
(the “
Equipment
”) listed in Appendix A-2 which is specially required for the performance of the
Services
; provided that (i) the
Parties
enter into a
Purchase Order
detailing the
Equipment
as and when ordered, and (ii) an
Equipment
Purchase Order
Addendum is entered into by the
Parties
in connection with each
Equipment
Purchase Order
in the form attached hereto as Addendum I to Schedule A.
DSCO
shall issue
Purchase Order
s to
LACEY
at quoted prices for the purchase and installation of such
Equipment
.
|
6.
|
DSCO
has responsibility for the following with regard to the
AFECTAIR Devices
and as reflected in Section 12.1:
|
6.1.
|
Devising and supplying product
Specifications
;
|
6.2.
|
Devising and supplying product acceptance criteria, including defect identification and a sampling plan;
|
6.3.
|
Approval of and responsibility for an overall
AFECTAIR Devices
validation strategy;
|
6.4.
|
Approval of protocols for IQ/OQ/PQ builds to support the process validation strategy to be provided by
LACEY
; and
|
6.5.
|
Design Control and Device Master record approval in accordance with
FDA GMP
and
ISO13485
requirements.
|
7.
|
The funding of all
Intellectual Property
, research & development, regulatory affairs, clinical activities, if any, and claims of equivalency to other products related to the
AFECTAIR Devices
will be the responsibility of
DSCO,
except as provided in Section 7.2.1.
|
7.1.
|
Each of
DSCO
and
LACEY
, as applicable, shall own
|
7.1.1.
|
[***]
|
7.1.2.
|
[***]
|
7.2.
|
With respect to all
Inventions
conceived, created, and reduced to practice after the
Initial Contact Date
solely by or on behalf of either
Party
or jointly by or on behalf of the
Parties
,
such
Inventions
shall be owned as follows:
|
7.2.1.
|
LACEY
shall have the exclusive ownership of any [***] (collectively “
LACEY Improvements
”).
LACEY
shall assume full financial responsibility over
Lacey Improvements
.
|
7.2.2.
|
DSCO
shall have the exclusive ownership of any [***], excluding
LACEY I
mprovements
and including, without limitation, [***] ,(y)
DSCO’s
[***] (collectively
“DSCO Improvements”
).
DSCO
shall assume full financial responsibility for
DSCO Improvements
.
|
7.2.3.
|
DSCO
shall have the exclusive ownership of any [***] (collectively “
Joint Improvements
”). [***] shall assume full financial responsibility over
JOINT Improvements
.
|
7.2.4.
|
For the purposes of this
Agreement
, “
Program-related Intellectual Property
” includes
DSCO Improvements
,
LACEY Improvements
, and
Joint Improvements
.
|
7.3.
|
During the
Term
and
solely
for the purposes of performing their respective obligations under this
Agreement
, each of
DSCO
and
LACEY
hereby grants to the other
Party
a non-exclusive, non-transferable, royalty-free and limited license to use the
Program-related
Intellectual Property.
The rights granted under this Section 7.3 shall expire immediately upon expiration or termination of this
Agreement
.
|
7.4.
|
Each
Party
shall maintain records in sufficient detail and in good scientific manner appropriate for patent prosecution purposes to reflect properly all work done and results achieved in conducting its work hereunder, and shall respond to reasonable requests of the other
Party
for information regarding
Program-related Intellectual Property
in which the other
Party
has an ownership interest.
|
7.5.
|
In the event that
LACEY
shall determine to prosecute a patent relating to
LACEY Improvements
, as soon as practicable prior to any contemplated filing,
LACEY
shall submit a substantially completed draft of the applicable patent to
DSCO
for review and comment, which comments shall be considered in good faith. Should
DSCO
reasonably and in good faith, based on an opinion of counsel (including internal counsel), a copy of which will be supplied to
LACEY
, object to such proposed filing on the grounds that it would detrimentally affect, or would have an unreasonable risk of detrimentally affecting the confidentiality of
DSCO’s Intellectual Property
rights (including, without limitation, its trade secrets and know-how), then
DSCO
shall be entitled to require
LACEY
to amend its filing to the extent necessary to protect
DSCO’
s
Intellectual Property
rights.
|
7.6.
|
During the
Term
,
LACEY
shall mark or have marked all finished goods containers or packages of
AFECTAIR Devices
with appropriate patent numbers and notices that
DSCO
will provide.
|
8.
|
Pricing
.
|
8.1.
|
Until such time as one or both the
AFECTAIR Devices
Manufactured
by
LACEY
for
DSCO
reach steady-state
Manufacture
and a price list is created, unit transfer pricing for all products
Manufactured
by
LACEY
for
DSCO
will be established by written individual quotations that will be incorporated into a
Purchase Order
. The
Parties
agree that an initial indicative price list based on currently defined
DSCO
specification is reflected in
LACEY’s
proposal dated August 12, 2011. With the consent of
DSCO
, which shall not be unreasonably withheld, the pricing to be incorporated into any
Purchase Order
shall be subject to amendment as agreed by the
Parties
based on changes in the
Specifications
and cost of raw materials, etc.
|
8.2.
|
LACEY
will be responsible for all production aspects of the
AFECTAIR Device
Program
, including supplier management for tooling, raw materials, purchased and manufactured components, assembly, and packaging.
|
8.3.
|
DSCO
agrees to supply
LACEY
monthly with a rolling six-month forecast for
the production of
AFECTAIR Devices
.
DSCO
will be financially responsible for materials, work in process, and finished goods conforming to
Specifications
for [***]
|
8.3.1.
|
LACEY
will take reasonable care to minimize financial exposure of
DSCO
as far as is practical based on lead-time requirements.
|
8.4.
|
Purchase Orders
for commercial product shall be supplied by
DSCO
with the following minimum information:
|
|
8.4.1.
|
P.O. Number;
|
|
8.4.2.
|
Date of P.O.;
|
|
8.4.3.
|
Part Number being ordered;
|
|
8.4.4.
|
Revision of part number being ordered;
|
|
8.4.5.
|
Quantity of part number being ordered;
|
|
8.4.6.
|
Requested delivery date;
|
|
8.4.7.
|
Delivery address of products;
|
|
8.4.8.
|
Product Specification number(s);
|
|
8.4.9.
|
Revision of Product Specification(s); and
|
|
8.4.10.
|
Other instructions as applicable.
|
8.5.
|
LACEY
will supply
DSCO
with an Order Confirmation accepting the order as specified or identifying any changes required to fulfill the order.
|
8.6.
|
It is understood by both
Parties
that
[***]
for
DSCO AFECTAIR Devices
and that,
[***]
|
8.7.
|
All proposals and
Purchase Order
s shall be denominated in
US
dollars.
|
9.
|
General
.
DSCO
and
LACEY
shall each comply in all material respects with all applicable
Laws
that pertain to the activities for which
DSCO
and
LACEY
are each responsible under this
Agreement
, as described in Appendix A and in accordance with the
Quality Agreement
. The termination or expiration of this
Agreement
shall not relieve either
Party
of its responsibility to comply in all material respects with any applicable regulatory requirements associated with the
AFECTAIR Devices
.
|
10.
|
Non-transferability of Duties
.
LACEY
shall not transfer or assign any of its duties or responsibilities under this
Agreement
without prior written approval of
DSCO
.
|
11.
|
Regulatory Approvals;
Labeling
.
DSCO
shall be responsible for compliance with all premarket requirements under Section 510(k) of the FDC Act and the applicable
Laws
of
EU
countries, as applicable to the
AFECTAIR Devices
.
DSCO
shall be responsible for obtaining and maintaining premarket notification (510(k)) clearance for
AFECTAIR Devices
or determining that there is an applicable 510(k) exemption, as required by the FDC Act and its implementing regulations.
DSCO
shall be responsible for the design and content of the
Labeling
of
AFECTAIR Devices
, and ensuring that the
Labeling
complies with all applicable
Laws
, including the FDC Act and its implementing regulations.
|
12.
|
Quality System
.
|
12.1.
|
General;
QSR
Requirements
.
DSCO
and
LACEY
shall each operate in substantial compliance with all applicable
Laws
, including the
FDA
current good manufacturing practice (cGMP) requirements set forth in the
Quality System Regulation
s. Each
Party
shall bear its own costs and expenses related to
QSR
compliance.
DSCO
shall be responsible to finalize
Specifications
for each
AFECTAIR Device
, which shall be counter-signed and dated by both
Parties
and issued by
DSCO
to
LACEY
for
AFECTAIR Devices
inclusion in the
LACEY
quality system. The
Specifications
will contain drawings, raw material and packaging component requirements, and/or product performance requirements as necessary. The
Specifications
will bear a version number controlled by
DSCO
. The
Specifications
may only be amended or changed by a writing signed by both
Parties
, as described in Section 14.1.
|
12.2.
|
Manufacturing
Activities
.
LACEY
shall
Manufacture
all
AFECTAIR Devices
in substantial compliance the
QSR
and
ISO 13485
requirements, and the terms and conditions of the
Quality Agreement
, this
Agreement
, each applicable
Purchase Order
, and the
Specifications
.
|
13.
|
Packaged Product Storage and Shipment
:
LACEY
shall store all finished and packaged
AFECTAIR Devices
in substantial compliance with all applicable
Laws
, including the
QSR
and
ISO 13485
requirements, and the terms and conditions of the
Quality Agreement
, this
Agreement
, each applicable
Purchase Order
, and the
Specifications
.
LACEY
will handle and load finished and packaged
AFECTAIR Devices
onto transport carriers designated by
DSCO
in conformance with all applicable
Laws
, including the
QSR
and
ISO 13485
requirements, and the terms and conditions of the
Quality Agreement
, this
Agreement
, each applicable
Purchase Order
, and the
Specifications
.
DSCO
shall be responsible for the shipment of all finished and packaged
AFECTAIR Devices
|
14.
|
Manufacturing
Changes
. LACEY
shall not make any changes, including the use of non-conforming materials, components, or assemblies used in the
Manufacture
of th
e AFECTAIR Devices
without documenting the change pursuant to
A LACEY
engineering document change notice (DCN), which shall not be effective until approved, counter-signed, and dated by
a DSCO Representative
. Temporary change notices (TCN) or deviations shall also include th
e DSCO Representative
’s counter-signature and date.
DSCO
shall review and respond to documentation submitted by
LACEY
for review or approval within 5
Days
of receipt.
|
14.1.
|
[***],
may make changes to the
Design
of the
AFECTAIR Devices
. Changes to
Specifications
relating to
Manufacture
, quality, or other
LACEY
procedures will require a
DSCO
Engineering Change Order (ECN) and subsequent
LACEY
DCN, which shall be counter-signed and dated by both
Parties
. Each
Party
will respond to submitted documentation within 5
Days
of receipt.
|
15.
|
Product Review
.
LACEY
shall provide
DSCO
with documentation of review and approval of each production lot of finished products prior to their release in the form of a Certificate of Conformity (CoC), in such form as shall be acceptable to both
Parties
. Each CoC must be signed and dated by a
LACEY Representative
and thereafter countersigned and dated by a
DSCO Representative
within 5
Days
of receipt.
|
16.
|
Post-Market Modifications
. Any regulatory filings incident to change(s) in
Manufacturing
and/or
Specifications
shall be the responsibility of
DSCO
.
|
17.
|
Product Returns; Complaints; Adverse Events
.
|
17.1.
|
Any investigation, response or other action incident to product returns or complaints and/or adverse events shall be the responsibility of
DSCO
.
LACEY
shall cooperate fully with
DSCO
in investigating and resolving returns or customer complaints concerning the
AFECTAIR Devices
, and shall take such action to promptly resolve such complaints as may be reasonably requested by
DSCO
. The
Parties
shall establish and implement a system for exchange of complaint and adverse event information sufficient to allow the
Parties
to comply with all applicable regulations, which shall include appropriate provisions for recording customer complaints relating to
AFECTAIR Devices
and prompt notice to the other
Party
of significant and/or potentially reportable adverse events. Each
Party
shall provide accurate and timely information about complaints and adverse events to the other
Party
, when applicable, and shall otherwise cooperatively undertake investigations and provide information and analyses as reasonably requested by the other
Party
and as necessary to support
DSCO’S
fulfillment of complaint handling and Medical Device Reporting (MDR) requirements (21 C.F.R. Part 803) requirements. Each
Party
shall bear its own costs and expenses in fulfilling its obligations under and in accordance with this Section 17.1.
|
17.2.
|
DSCO
shall be responsible to ensure substantial compliance with all applicable
Laws
pertaining to product returns, complaint handling and the reporting of adverse device events, including
FDA
’s complaint handling requirements under the
QSR
s (21 C.F.R. § 820.198) and the MDR. Both
Parties
shall cooperate to submit a request to
FDA
under 21 C.F.R. § 803.19(c) to exempt
LACEY
from the MDR requirements, and to allow
DSCO
to satisfy the reporting obligations for both
Parties
. Each
Party
shall bear its own costs and expenses in fulfilling its obligations under and in accordance with this Section 17.2.
|
18.
|
Recalls; Corrections and Removals
. All recall actions will be issued by
DSCO
. If
LACEY
becomes aware of any defect, problem, or adverse condition in any
AFECTAIR Devices
,
LACEY
shall promptly notify
DSCO
.
LACEY
shall cooperate fully with
DSCO
in investigating and resolving any correction, removal or field action. Each
Party
shall bear its own cost and expenses of any correction, removal, or field action. Each
Party
shall use reasonable efforts to ensure substantial compliance with all applicable
Laws
pertaining to corrections and removals, including voluntary actions under 21 C.F.R. Part 7 and
FDA
’s reporting requirements of corrections and removals under 21 C.F.R. Part 806. Each
Party
shall provide the other
Party
with advance copies of all filings to be made with the
FDA
under this Section 18.
|
19.
|
Audits and Inspections
.
|
19.1.
|
LACEY
shall provide
DSCO
or
DSCO’S
Representatives
reasonable access upon reasonable prior notice to inspect, review, and audit the
LACEY
facility(ies) where the
AFECTAIR Devices
are being
Manufactured
for the purpose of confirming that all
AFECTAIR Devices
are
Manufactured
in accordance with applicable
Laws
and the terms of this
Agreement
. In connection with any such inspection, review, or audit,
LACEY
shall allow
DSCO
or its
Representatives
to review and inspect the applicable facility(ies) and records, and to meet with
LACEY
personnel to discuss whether
LACEY
’s procedures and record-keeping are compliant with applicable
Laws
. Such inspections, reviews, and audits can take place on reasonable notice to
LACEY
and shall be conducted during normal business hours and in a manner intended to not unreasonably disrupt the normal operations of
LACEY
.
DSCO
may review but not copy
LACEY
procedure documents.
|
19.2.
|
LACEY
shall advise
DSCO
within one business day if an authorized agent of the
FDA
or other
Regulatory Authority
inspects, reviews, or audits
LACEY
’s manufacturing facility(ies), and/or if the
Regulatory Authority
requests or requires information or changes that directly pertain to the
AFECTAIR Devices
or that may negatively impact
LACEY
’s ability to continue to
Manufacture AFECTAIR Devices
under this
Agreement
.
LACEY
shall provide
DSCO
with copies of all correspondence from a
Regulatory Authority
regarding the inspection, review, or audit of
LACEY
operations related to the
AFECTAIR Devices
, which may include, without limitations, facility registration or ISO certification changes or updates, Establishment Inspection Reports, Form
FDA
483s, or equivalent forms issued by other Regulatory Authorities, and warning or untitled letters.
DSCO
shall have the opportunity to review and comment on
LACEY
’s written responses to a
Regulatory Authority
and shall assist
LACEY
to address any
Regulatory Authority
inquiry or investigation related to the
AFECTAIR Devices
.
|
19.3.
|
DSCO
shall advise
LACEY
within one business day if an authorized agent of the
FDA
or other
Regulatory Authority
audits the
AFECTAIR Devices
and/or if the
Regulatory Authority
or requests or requires information or changes that directly pertain to the
Manufacture
of
AFECTAIR Devices
or that may negatively impact
LACEY
’s ability to continue to
Manufacture
AFECTAIR Devices
under this
Agreement
.
LACEY
shall assist
DSCO
in responding to an inquiry from a
Regulatory Authority
, as a result of an inspection, review, or audit of
DSCO
’s operations related to the
AFECTAIR Devices
.
|
19.4.
|
Each
Party
shall notify the other
Party
if it becomes aware of a pending or existing administrative or government court-initiated action against the
Party
, including, but not limited to, seizures, injunctions, and criminal prosecution, that may affect the
Party
’s ability to comply with the terms of this
Agreement.
|
20.
|
FDA
Debarment Certification
.
LACEY
represents and warrants that, after due inquiry, it shall not knowingly employ, contract with or retain any person directly or indirectly to perform
Services
under this
Agreement
, if such person is debarred by the
FDA
under 21 USC 335a(k) of the
FDA
Act
or a regulator in the
EU
under similar
Laws
. Upon written request from or on behalf of
DSCO
,
LACEY
shall within 5
Days
confirm in writing that it has complied with the foregoing obligation.
|
21.
|
Payment
.
|
21.1.
|
Payment terms for
Services
related to
AFECTAIR
development, qualification and
Manufacturing
will be included in individual
Purchase Order
s. Information on payment, security interest, delivery terms, risk of loss, shipment dates, cancellation, and special orders are included in the terms and conditions set forth on Appendix A-1.
|
21.2.
|
Notwithstanding any other provision of this Section 21, if
DSCO
in good faith disputes all or a portion of a
LACEY
invoice, then
DSCO
shall pay any undisputed amount and shall promptly provide
LACEY
a written explanation of the reasons for the dispute and the related amount. The
Parties
shall work together in good faith to resolve any dispute within 30 calendar
Days
. The time period may be extended by mutual agreement of the
Parties
. If the
Parties
are unable to resolve the dispute, either
Party
may refer the matter to arbitration in accordance with Section 27. During the pendency of any dispute,
LACEY
shall continue to perform
Services
under this
Agreement
.
|
21.3.
|
If any term of this
Agreement
conflicts with any term of an accepted
Purchase Order
, the terms set forth in this
Agreement
shall supersede the conflicting terms in such
Purchase Order
, except to the extent that such
Purchase Order
expressly states in a document signed separately by both
Parties
that they intend to vary the terms of this
Agreement
as it applies to such
Purchase Order
.
|
22.
|
Warranties
.
|
22.1.
|
LACEY
warrants only that the goods delivered hereunder will conform to the
Specifications
provided by
DSCO
and will be free from defects in material or workmanship.
|
22.2.
|
There are no other warranties other than those contained in each acknowledged
Purchase Order
.
|
22.3.
|
LACEY
makes no warranty of merchantability or fitness for purpose of the goods covered by this
Agreement
.
|
23.
|
Indemnification
.
|
23.1.
|
DSCO
shall indemnify, defend and hold harmless
LACEY
, its parents and
Affiliates
and each of their respective employees, officers, directors and agents (hereinafter “
LACEY Indemnified Parties
”) from and against any and all damages, liabilities, claims, costs, charges, judgments and expenses (including reasonable attorney’s fees) (collectively “
Damages
”) that may be sustained, suffered or incurred by
LACEY
, or
LACEY
Indemnified
Parties
arising directly from (1) the breach by
DSCO
of any warranty, representation, covenant, or agreement made by
DSCO
in this
Agreement
; (2) any product liability or personal injury claim by third parties arising from the
Design
, sale, distribution or indicated use of any product that meets
DSCO’S
quality requirements and
Specifications
and is not otherwise defective; and (3) any claim that any product
Manufactured
by
LACEY
under this
Agreement
or the use or sale thereof infringes any patent of any third party, except to the extent that such claim is based on
LACEY
Intellectual Property
or
LACEY Improvements
.
|
23.2.
|
LACEY
shall indemnify, defend and hold harmless
DSCO
, its parents and
Affiliates
and each of their respective employees, officers, directors and agents (hereinafter “
DSCO Indemnified Parties
”) from and against any and all
Damages
that may be sustained, suffered or incurred by
DSCO
or
DSCO
Indemnified
Parties
arising directly from (1) the breach by
LACEY
of any warranty, representation, covenant or agreement made by
LACEY
in this
Agreement
– provided that
LACEY
shall not be liable for any product liability or personal injury claims by third parties arising from the
Design
, sale, distribution, or indicated use of any product which meets
DSCO
quality requirements and
Specifications
and is not otherwise defective; (2) any claim raised by any
LACEY
employee(s) or other persons against
DSCO
and
DSCO
Indemnified
Parties
in connection with possible injuries suffered when using or servicing any of the
DSCO
-owned
Equipment
located on
LACEY
’s
premises, (3)
LACEY’s
use of the
Equipment
, (4) any alleged violation of any environmental requirements in the
Manufacture
of
AFECTAIR Devices
, and (5) any third-party claim that any product purchased from
DSCO
made in accordance with
LACEY
Intellectual Property
or
LACEY Improvements
or the use or sale thereof infringes any patent of any third party.
|
23.3.
|
LACEY
shall indemnify
DSCO
for all claims, demands, suits, or actions which may be asserted against
DSCO
for any kind of losses related to defects in materials and/or workmanship of the
AFECTAIR Devices
.
|
23.4.
|
EXCEPT FOR INFRINGEMENT OF
INTELLECTUAL PROPERTY
RIGHTS OR AS NECESSARY TO SATISFY A THIRD PARTY CLAIM INDEMNIFIED HEREUNDER AND/OR IN THE EVENT OF A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 28 OF THIS
AGREEMENT
, UNDER NO CIRCUMSTANCES SHALL
LACEY
’s TOTAL LIABILITY TO DISCOVERY LABS IN CONNECTION WITH THE SUBJECT MATTER OF THIS
AGREEMENT
, INCLUDING, WITHOUT LIMITATION, THE
AFECTAIR DEVICES
OR ANY SERVICES PROVIDED IN CONNECTION WITH THE
AFECTAIR DEVICES
, [***].
|
23.5.
|
EXCEPT FOR INFRINGEMENT OF
INTELLECTUAL PROPERTY
RIGHTS OR AS NECESSARY TO SATISFY A THIRD PARTY CLAIM INDEMNIFIED HEREUNDER AND/OR IN THE EVENT OF A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 28 OF THIS
AGREEMENT
, NEITHER
PARTY
SHALL BE LIABLE TO THE OTHER
PARTY
FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS
AGREEMENT
OR THE PROGAM CONTEMPLATED BY THIS
AGREEMENT
, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY. NOTWITHSTANDING THE FOREGOING, DIRECT DAMAGES OF A
PARTY
WITH RESPECT TO A THIRD PARTY CLAIM SHALL INCLUDE ALL DAMAGES AWARDED TO SUCH THIRD PARTY, INCLUDING ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES.
|
24.
|
Procedure for Indemnification.
|
24.1.
|
In the event that any person (an “
Indemnified Party
”) entitled to indemnification under Section 23 is seeking indemnification, such Indemnified
Party
shall promptly notify the indemnifying
Party
(“
Indemnitor
”) in writing of the claim (and in reasonable detail);
provided, however,
that failure to give such notification shall not affect the indemnification to be provided hereunder except to the extent Indemnitor shall have been actually prejudiced as a result of such failure. As a condition to indemnification under this
Agreement
, Indemnitor, in its sole discretion, may manage and control, at its sole expense, the defense of the claim and its settlement. The
Indemnified Parties
shall provide Indemnitor with reasonable assistance and cooperation and all material relevant information to support the defense of any indemnified claim, and Indemnitor shall reimburse the Indemnified
Parties
for their reasonable out-of-pocket expense incurred in connection with such assistance and cooperation. Indemnitor shall not accept any settlement which imposes liability not covered by the indemnification provided under this
Agreement
or imposes any obligation on, or otherwise adversely affects, the
LACEY
Indemnified Parties
or the
DSCO
Indemnified Parties
without the prior written consent of such affected
Indemnified Party
, as applicable.
Indemnitor
shall have no obligation to indemnify the
Indemnified Parties
in connection with any settlement made without
Indemnitor
’s written consent. Except for such assistance and cooperation as may reasonably be requested by
Indemnitor
, nothing contained in this Section 24 shall require the
Indemnified Party
to take any action in its own name in defending any claim, action or proceedings;
however
, the
Indemnified Party
, at is option and expense, may review and comment on the defense of any claim through its own counsel. If (i) in the opinion of counsel for the
Indemnified Party
, representation of the
Indemnified Party
by the counsel retained by
Indemnitor
would be inappropriate due to actual or potential differing interests between such
Indemnified Party
and any other Party represented by such counsel in such proceedings, or (ii) the named parties to any such proceeding (including the impleaded parties) include both
Indemnitor
and the
Indemnified Party
, and representation of both
Parties
by the same counsel would be inappropriate in the opinion of the
Indemnified Party
’s counsel due to actual or potential differing interests between them; in any such case, one firm of attorneys separate from
Indemnitor
’s counsel may be retained to represent the
Indemnified Party
at
Indemnitor
’s expense. As the
Parties
intend complete indemnification, all reasonable attorneys’ fees and expenses incurred by an Indemnified
Party
in connection with enforcement of Sections 23.1, 23.2, and 23.3 shall also be reimbursed by
Indemnitor
.
|
24.2.
|
If
LACEY
receives a written legal opinion or notification that the
Manufacture
, sale, or use of
AFECTAIR Devices
infringe on the proprietary information or patents of a third party,
LACEY
shall promptly deliver a copy of such opinion or notification to
DSCO
.
LACEY
may discontinue
Manufacture
of any goods involved in the alleged infringement with prior written notice to
DSCO
provided that
DSCO
is given a reasonable period of time to ascertain the legitimacy of such opinion or notice and discuss with
LACEY
. In the event
DSCO
believes (upon the advice of its counsel, including internal counsel) that neither the
Manufacture
, sale, nor use of
AFECTAIR Devices
infringe on the proprietary information or patents of such third party, in order to ensure continuous availability of
AFECTAIR Devices
Manufacture
by
LACEY
,
DSCO
may notify
LACEY
that it wishes to continue the
Manufacture
of
AFECTAIR Devices
and, in connection therewith, will indemnify
LACEY
in accordance with Section 23.1. Upon receipt of such notice,
LACEY
will continue to
Manufacture AFECTAIR Devices
.
|
25.
|
Insurance.
|
25.1.
|
Each
Party
shall at all times maintain all necessary insurance coverage with sound and reputable independent insurers at commercially reasonable levels of coverage or shall be self insured at levels that are consistent with industry practice, having regard to the nature, type, scope and size of the business it conducts and all its respective activities and obligations under this Agreement, which shall include, at a minimum: (i) comprehensive general liability insurance, including property damage, for injury to persons or damage to property; (ii) workers compensation and employers’ liability coverage with required statutory limits for workers compensation and employers liability limits: (iii) property insurance covering the
AFECTAIR Devices
, molds and tooling, and
DSCO
materials and
Equipment
; and (iv) products liability insurance, which, if the policy is a claims-made policy, includes coverage for a period of at least 10 years after the performance of the Program. Each
Party
shall make reasonable commercial efforts to insure that all of its insurance policies shall be issued by “A-rated” insurers as designated by Standard and Poor’s Corporation or A.M. Best. Each
Party
shall, upon reasonable request of the other
Party
, produce satisfactory evidence that all insurance premiums have been paid and kept up to date and are kept in accordance with local insurance laws or regulations from time to time in force, or shall furnish appropriate certificates of insurance showing proof of coverage. The insurance coverage may be provided through a combination of primary, excess/umbrella or self-insured retention, and shall not serve to operate as a limitation on the recovery of any claim. Each
Party
shall include the other
Party
as a named insured on its policies of insurance, as the other
Party
’s interests may be affected pursuant to this Agreement.
|
25.2.
|
The requirement for insurance shall not be construed to establish a limit on liability hereunder. Upon the request of a Party, the other
Party
shall furnish to the requesting
Party
a certificate of insurance evidencing the coverage provided in this Section 25 as of such date, pursuant to which the insurer agrees to notify such other
Party
30 days in advance of any coverage change, nonrenewal or cancellation. In the case of a coverage change, nonrenewal or cancellation, the affected
Party
shall provide the other
Party
with a new certificate of insurance evidencing the coverage provided in this Section 25.
|
26.
|
Force Majeure.
|
26.1.
|
Neither
Party
shall be responsible or liable, or deemed in breach hereof, to the extent the performance of its obligations hereunder is delayed or prevented due solely to circumstances beyond the reasonable control and without the fault or negligence of the
Party
experiencing such impediment to performance (such causes hereinafter called “Force Majeure”). Such causes may include but shall not be limited to acts of God; unusually severe weather; war; riots; fire; actions or failures to act on the part of governmental authorities which delay or prevent performance; or the
Party
’s inability despite due diligence to obtain required licenses. In the event either
Party
is delayed or rendered unable to perform due to Force Majeure, the affected
Party
shall give prompt notice of the conditions and the expected duration to the other
Party
promptly after the occurrence of the cause relied upon, and upon the giving of such notice the obligations of the
Party
giving the notice will be suspended during the continuance of the Force Majeure for a period [***] or as agreed upon in writing by the
Parties
.
|
27.
|
Arbitration.
|
27.1.
|
Any controversy or claim arising out of or relating to this
Agreement
or the validity, inducement or breach thereof, shall be settled by binding arbitration before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“
AAA
”) then pertaining, except where the rules conflict with this provision, in which case this provision shall control. The
Parties
hereby consent to the jurisdiction of the federal district court for the district in which the arbitration is held for the enforcement of this provision and the entry of judgment on any award rendered hereunder. Should such court for any reason lack jurisdiction, any court with jurisdiction shall enforce this clause and enter judgment on any award. The arbitrator shall be an attorney with at least 15-years experience with a law firm, corporate law department, or as a judge in a court of general jurisdiction. The arbitration shall be held in New York City or such other venue as is agreeable to both
Parties
. In rendering the decision, the arbitrator shall apply the substantive law of Connecticut (except where the law conflicts with this clause) except that the interpretation and enforcement of this provision shall be governed by the Federal Arbitration Act. The arbitrator shall be selected from a panel of qualified arbitrators of AAA. Within forty five (45) days of initiation of the arbitration, the
Parties
shall reach agreement upon the procedures to be followed. Failing such agreement, AAA will design and the
Parties
shall follow procedures that are reasonably designed to conclude the arbitration within eight (8) months.
Each Party has the right before and during the arbitration to seek and obtain from the appropriate court provisional remedies, including but not limited to, attachment, preliminary injunction and replevin in order to avoid irreparable harm. THE ARBITRATOR SHALL NOT AWARD ANY PARTY PUNITIVE, EXEMPLARY, MULTIPLIED, CONSEQUENTIAL DAMAGES AND EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO SEEK SUCH DAMAGES. NO PARTY MAY OBTAIN PREJUDGMENT INTEREST, ATTORNEYS’ FEES OR COSTS.
|
28.
|
Confidentiality
.
|
28.1.
|
Each
Party
acknowledges and agrees to maintain the confidentiality of all
Preparatory Activities
and negotiations undertaken in connection with the
Program
and
Services
and the other
Party
’s respective
Confidential Information
, in each event in accordance with the Mutual Confidential Disclosure
Agreement
between the
Parties
, dated as of November 24, 2010 (the “CDA”), which shall survive execution of this
Agreement
.
DSCO
and
LACEY
hereby agree to amend the CDA by extending the period provided in Section 16 of the CDA for a period ending five (5) years after the date of expiration or earlier termination of this
Agreement
. Further, the
Parties
acknowledge and agree that any future
Supply Agreements
shall contain mutually agreeable terms and conditions with respect to the
Parties
’ obligations of confidentiality with regard to
Confidential Information
on terms substantially similar to the CDA.
|
28.2.
|
Neither
Party
shall disclose the terms of this
Agreement
to a third party, except for legal, financial, accounting or other similar advisors who agree to keep the terms of this
Agreement
confidential, without the prior written approval of the other
Party
, or as otherwise required by law. Furthermore, neither
Party
will originate any publicity, news release, or other public announcement, written or oral, whether to the public press, to stockholders, or otherwise, relating to this
Agreement
, to any amendment hereto or to performance hereunder or the existence of an arrangement between the
Parties
without the prior written approval of the other
Party
. However, nothing herein shall prevent a
Party
from disclosing
Confidential Information
on a need-to-know basis to an employee of its parent corporation or any other corporation under common ownership and control; providing said employees are informed of the confidential nature of the information and further provided that each
Party
shall be liable for any violation of the provisions of this
Agreement
that occur as the result of the conduct of any employee of the parent or any employee of a company under common ownership and control with such
Party
.
|
28.3.
|
Notwithstanding anything to the contrary in this
Agreement
,
LACEY
acknowledges and agrees that, if
DSCO
determines in its sole judgment to do so,
DSCO
may describe the material terms of this
Agreement
and any future
Supply Agreement
in any of its reports and filings with the
SEC
and may file a copy of this
Agreement
and any future
Supply Agreements
with the
SEC
, as well as incorporate the descriptions and this
Agreement
(and any
Supply Agreements
) by reference into other
SEC
filings. In such event,
DSCO
will notify
LACEY
and request that the
SEC
agree to confidential treatment of sensitive terms contained in this
Agreement
or any future
Supply Agreements
to the extent such confidential treatment is reasonably available to
DSCO
.
|
29.
|
Asset Management
.
|
29.1.
|
DSCO
, as owner of the
Equipment
, molds and tooling, and other capital assets used in the production of the
AFECTAIR Devices
, will be responsible for the purchase price and the cost of installation, maintenance and other related expenses. Such assets include but are not limited to the
Equipment
listed on Appendix A-2, as amended from time to time, purchased by
LACEY
on
DSCO’S
behalf.
|
29.2.
|
LACEY
shall enter into and attach to each
Equipment
Purchase Order
an
Equipment
Addendum substantially in the form included in Appendix A-2.
LACEY
agrees that it will provide information concerning its facility as may reasonably be requested by
DSCO
in order to schedule the
DSCO
assets located on
LACEY
’s premises under
DSCO’
s insurance policies.
|
30.
|
Termination
.
|
30.1.
|
DSCO
may terminate this
Agreement
:
|
|
30.1.1.
|
Upon [***] to
LACEY
of plans to discontinue the
Program,
[***].
|
|
30.1.2.
|
If such termination is made [***], upon [***] written notice to
LACEY
.
|
|
30.1.3.
|
upon [***] notice to
LACEY
if (i)
LACEY
is unable to
Manufacture AFECTAIR Devices
substantially in accordance with the terms of an accepted
Purchase Order
; (ii) [***]; or (iii) if the
FDA
or other
Regulatory Authority
revokes, or provides any formal notification that reasonably could be expected to result in revocation of, any registration, certification or authorization that is required or necessary to
Manufacture AFECTAIR Devices
in accordance with this
Agreement
, the
Quality Agreement
or any applicable
Purchase Order
.
|
30.2.
|
LACEY
may terminate this
Agreement
:
|
|
30.2.1.
|
Upon [***] notice of plans to discontinue
Manufacture
of the
AFECTAIR Devices
.
|
|
30.2.2.
|
For cause, if
DSCO
fails to make any payment on the due date set forth in an accepted
Purchase Order
and does not remedy such failure [***].
|
30.3.
|
Either
Party
may terminate this
Agreement
:
|
|
30.3.1.
|
upon [***] notice to the other
Party
if the
Parties
, after a good faith effort, are unable to agree on [***]. For the purposes of this Section 30.3.1, “good faith effort” means that the
Parties
have negotiated in good faith and have escalated any irresolvable issues to their respective Presidents.
|
|
30.3.2.
|
upon [***] notice to the other
Party
, if such other
Party
is in breach of any material obligation under this
Agreement
and such breach is not cured [***]; or
|
|
30.3.3.
|
immediately, if the other
Party
(i) ceases for any reason to carry on business, dissolves, liquidates, winds up, or files or is petitioned into bankruptcy (and any such voluntary petition is not dismissed [***]), liquidation, rehabilitation or dissolution or (ii) becomes insolvent or fails generally to pay its debts or obligations or (iii) a petition is filed seeking the appointment of or the taking possession by a receiver, custodian, trustee or similar official.
|
31.
|
Effects of Termination
. Upon termination of this
Agreement
:
|
31.1.
|
LACEY
will cooperate and provide reasonable assistance to
DSCO
to transfer (at
DSCO’S
expense) all
Equipment
, inventory and materials to any successor site or to such other location that
DSCO
may designate in writing.
DSCO
will issue
Purchase Order
s to
LACEY
to cover all reasonable costs related to the transfer and return of the
Equipment
, inventory and materials. Unless otherwise agreed, such reimbursement costs shall be consistent with the costs reflected in the two most-recent accepted
Purchase Order
s. [***].
|
31.2.
|
Each
Party
will return to the other
Party
or certify in writing to the other
Party
that it has destroyed all documents and other tangible items it or its employees or agents have received or created pursuant to this
Agreement
pertaining, referring or relating to the
Confidential Information
of the other
Party
, except that each
Party
may retain one (1) complete copy of
Confidential Information
for archival purposes to assure compliance with this
Agreement
|
32.
|
Amendments
. Amendments, modifications, and additions to this
Agreement
must be made in writing and must be signed by authorized officers of the respective
Parties
hereto. No invoice, quotation, acknowledgment,
Purchase Order
, or other commercial document or instrument and no course of dealing shall be effective to modify any of the terms of this
Agreement
.
|
33.
|
Notices
. All notices to be given as required in this
Agreement
shall be in writing and may be delivered personally, or mailed either by a reputable overnight carrier with signature receipt or certified mail, postage prepaid to the
Parties
at the addresses set forth below or at such other address as either
Party
may provide by written notice to the other
Party
in accordance with the provisions of this Section 33. Any such notice shall be effective: (i) on the date sent, if delivered personally or by facsimile (receipt of which is confirmed); (ii) the date after delivery if sent by overnight carrier; or (iii) on the date received if sent by certified mail. Notices for the
Parties
shall be sent to:
|
|
FAX: [***]
|
34.
|
Entire Agreement
. This
Agreement
and the CDA contain the entire understanding between the
Parties
with respect to development of the
AFECTAIR Devices
and the Project. Any representation, promise, or condition that is not incorporated herein shall not be binding upon either
Party
.
|
35.
|
Assignment
. Neither this
Agreement
nor any rights or obligations hereunder may be assigned, transferred, delegated, pledged, hypothecated, or encumbered by either
Party
without the prior written consent of the other
Party
hereto, except that the rights and obligations of either
Party
may be assigned to any entity that acquires substantially all of the relevant assets of the assigning
Party
, unless the acquisition is made by a direct competitor of the other
Party
, in which case either
Party
may terminate this
Agreement
. The sale of a controlling interest in the equity securities of a
Party
shall not be deemed an assignment hereunder.
|
36.
|
No Waiver
. Neither
Party
hereto shall be deemed to have waived the protection of any provision hereof, not its right to enforce the same upon a breach or subsequent breach thereof, unless such waiver shall be in writing and executed in a manner similar to the execution of this
Agreement
.
|
37.
|
Counterparts
. This
Agreement
may be executed in multiple counterparts, but all such counterpart documents shall constitute but one, single agreement.
|
38.
|
Severability
. In the event that one or more provisions of this
Agreement
is held to be invalid, illegal or unenforceable for any reason, the same shall not affect any other provision of this
Agreement
, but this
Agreement
will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
|
39.
|
This
Agreement
is intended solely for the benefit of the executing
Parties
. No other person or entity shall have any rights under or in connection with this
Agreement
.
|
DISCOVERY LABORATORIES, INC.
|
|
By: W. Thomas Amick, Chief Executive Officer
|
|
Signature: /s/ W. Thomas Amick Date 2.2.2012 | |
LACEY MANUFACTURING COMPANY, A DIVISION OF PRECISION ENGINEERED PRODUCTS, LLC | |
By: Kenneth Lisk, President
|
|
Signature: Kenneth Lisk Date 2.2.2012 |
|
·
|
PRODUCTS
|
|
o
|
AFECTAIR Small- Adapter only for infants
|
|
o
|
AFECTAIR Large- Adapter only for children and adults
|
|
o
|
AFECTAIR DUO Small- Adapter, tee, tubing for infants
|
|
o
|
AFECTAIR DUO Large- Adapter, tee, tubing for children and adults
|
|
·
|
MANUFACTURING
|
|
·
|
REGULATORY/QA
|
·
|
OTHER
|
Discovery Laboratories, Inc. | Lacey Manufacturing Company, LLC | ||||
By: | By: | ||||
Name: | Name: | ||||
Title: | Title: |
Date | ||||
Participant | ||||
Address: | ||||
Print name in exact manner it is to appear on the stock certificate: | ||||
Address to which certificate is to be sent, if different from address above: | ||||
Social Security Number: | ||||
Employee Number: |
|
(i)
|
willful misconduct or gross negligence in the performance of such person’s duties;
|
|
(ii)
|
willful and continued failure or refusal to perform satisfactorily any duties reasonably requested in the course of such person’s employment by, or service to, the Company (other than a failure resulting from such person’s disability); or
|
|
(iii)
|
fraudulent, dishonest or other improper conduct engaged in by such person that causes, or has the potential to cause, harm to the Company or any of its Subsidiaries, or its or their business or reputation, including, without limitation, such person’s violation of any policies of the Company applicable to the such person, such person’s violation of laws, rules or regulations applicable to such person, criminal activity, habitual drunkenness or use of illegal drugs.
|
|
(i)
|
any Person (other than (1) the Company, or (2) any trustee or other fiduciary under an employee benefit plan of the Company), is or becomes the beneficial owner (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of securities of the Participant’s Employer (as defined below) by reason of having acquired such securities during the 12-month period ending on the date of the most recent acquisition (not including any securities acquired directly from the Company or its Affiliates) representing thirty percent (30%) or more of the total voting power of the Participant’s Employer’s then outstanding voting securities;
|
|
(ii)
|
the majority of members of the board of directors of the Participant’s Employer is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the board of directors of the Participant’s Employer before the date of the appointment;
|
|
(iii)
|
there is consummated a merger or consolidation of the Participant’s Employer or any subsidiary thereof with any other corporation or other entity, resulting in a change described in clauses (i), (ii), (iv) or (v) of this definition, other than (1) a merger or consolidation that would result in the voting securities of the Participant’s Employer outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving or parent entity) more than sixty percent (60%) of the total voting power of the voting securities of the Participant’s Employer or such surviving or parent entity outstanding immediately after such merger or consolidation or (2) a merger or consolidation effected to implement a recapitalization of the Company or the Participant’s Employer (or similar transaction) in which no Person, directly or indirectly, acquired forty percent (40%) or more of the total voting power of the then outstanding securities of the Participant’s Employer (not including any securities acquired directly from the Company or its Affiliates);
|
|
(iv)
|
a liquidation of the Participant’s Employer involving the sale to any Person of at least forty percent (40%) of the total gross fair market value of all of the assets of the Participant’s Employer immediately before the liquidation; or
|
|
(v)
|
the sale or disposition by the Participant’s Employer or any direct or indirect subsidiary of the Participant’s Employer to any Person (other than any Subsidiary) of assets that have a total fair market value equal to forty percent (40%) or more of the total gross fair market value of all of the assets of the Participant’s Employer and its subsidiaries (taken as a whole) immediately before such sale or disposition (or any transaction or related series of transactions having a similar effect), other than a sale or disposition by the Company or the Participant’s Employer or any direct or indirect subsidiary of either to an entity at least sixty percent (60%) of the total voting power of the voting securities of which is beneficially owned by Stockholders of the Company or the Participant’s Employer in substantially the same proportions as their beneficial ownership of the Company or the Participant’s Employer immediately prior to such sale.
|
For purposes of this definition, “Participant’s Employer” shall mean (1) the Company or a Subsidiary corporation for which the Participant directly provides services or (2) a corporation that is a majority stockholder of the Company or a Subsidiary, or any corporation in a chain of corporations each of which is a majority stockholder of another corporation in the chain, ending with the corporation described in (1).
|
|
(i)
|
if the Shares are listed or admitted for trading on any United States national securities exchange, or if actual transactions are otherwise reported on a consolidated transaction reporting system, the last reported sale price of a Share on such exchange or reporting system, as reported in any newspaper of general circulation, or
|
|
(ii)
|
if clause (i) is not applicable, the mean of the high bid and low asked quotations for a Share as reported by the National Quotation Bureau, Incorporated if at least two securities dealers have inserted both bid and asked quotations for the Shares on at least five of the 10 preceding trading days; or
|
|
(iii)
|
if clauses (i) and (ii) above are not applicable to the Company (e.g., if the Shares are not then publicly traded or quoted), then the “Fair Market Value” of a Share shall be the fair market value (i.e., the price at which a willing seller would sell a Share to a willing buyer when neither is acting under compulsion and when both have reasonable knowledge of all relevant facts) of a Share on such date as the Committee in its sole and absolute discretion shall determine in a fair and uniform manner.
|
Date | ||||
Participant | ||||
Address: | ||||
Print name in exact manner it is to appear on the stock certificate: | ||||
Address to which certificate is to be sent, if different from address above: | ||||
Social Security Number: | ||||
Employee Number: |
|
(i)
|
any Person (other than (1) the Company, or (2) any trustee or other fiduciary under an employee benefit plan of the Company), is or becomes the beneficial owner (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of securities of the Participant’s Employer (as defined below) by reason of having acquired such securities during the 12-month period ending on the date of the most recent acquisition (not including any securities acquired directly from the Company or its Affiliates) representing thirty percent (30%) or more of the total voting power of the Company’s then outstanding voting securities;
|
|
(ii)
|
the majority of members of the Board is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board before the date of the appointment;
|
|
(iii)
|
there is consummated a merger or consolidation of the Company or any subsidiary thereof with any other corporation or other entity, resulting in a change described in clauses (i), (ii), (iv) or (v) of this definition, other than (1) a merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving or parent entity) more than sixty percent (60%) of the total voting power of the voting securities of the Company or such surviving or parent entity outstanding immediately after such merger or consolidation or (2) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person, directly or indirectly, acquired forty percent (40%) or more of the total voting power of the then outstanding securities of the Company (not including any securities acquired directly from the Company or its Affiliates);
|
|
(iv)
|
a liquidation of the Company involving the sale to any Person of at least forty percent (40%) of the total gross fair market value of all of the assets of the Company immediately before the liquidation; or
|
|
(v)
|
the sale or disposition by the Company or any direct or indirect subsidiary of the Company to any Person (other than any Subsidiary) of assets that have a total fair market value equal to forty percent (40%) or more of the total gross fair market value of all of the assets of the Company and its subsidiaries (taken as a whole) immediately before such sale or disposition (or any transaction or related series of transactions having a similar effect), other than a sale or disposition by the Company or any direct or indirect subsidiary thereof to an entity at least sixty percent (60%) of the total voting power of the voting securities of which is beneficially owned by stockholder of the Company in substantially the same proportions as their beneficial ownership of the Company immediately prior to such sale.
|
|
(i)
|
if the Shares are listed or admitted for trading on any United States national securities exchange, or if actual transactions are otherwise reported on a consolidated transaction reporting system, the last reported sale price of a Share on such exchange or reporting system, as reported in any newspaper of general circulation, or
|
|
(ii)
|
if clause (i) is not applicable, the mean of the high bid and low asked quotations for a Share as reported by the National Quotation Bureau, Incorporated if at least two securities dealers have inserted both bid and asked quotations for the Shares on at least five of the 10 preceding trading days; or
|
|
(iii)
|
if clauses (i) and (ii) are not applicable to the Company (e.g., if the Shares are not then publicly traded or quoted), then the “Fair Market Value” of a Share shall be the fair market value (i.e., the price at which a willing seller would sell a Share to a willing buyer when neither is acting under compulsion and when both have reasonable knowledge of all relevant facts) of a Share on such date as the Committee in its sole and absolute discretion shall determine in a fair and uniform manner.
|
Date: May 15, 2012
|
/s/ W. Thomas Amick
|
W. Thomas Amick
|
|
Chairman of the Board and
|
|
Chief Executive Officer
|
Date: May 15, 2012
|
/s/ John G. Cooper
|
John G. Cooper
|
|
President and Chief Financial Officer
|