As filed with the Securities and Exchange Commission on June 21, 2000
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DURA PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-3645543
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
7475 LUSK BOULEVARD
SAN DIEGO, CA 92121
(Address of principal executive offices) (Zip Code)
2000 EMPLOYEE STOCK PURCHASE PLAN
1992 STOCK OPTION PLAN
(Full title of the Plan)
------------------------
CAM L. GARNER
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
DURA PHARMACEUTICALS, INC.
7475 LUSK BOULEVARD
SAN DIEGO, CA 92121
(Name and address of agent for service)
(858) 457-2553
(Telephone Number, including area code, of agent for service)
------------------------
CALCULATION OF REGISTRATION FEE
====================================== =================== ======================== ============================ ==================
PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE PER PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED(1) SHARE(2) AGGREGATE OFFERING PRICE(2) REGISTRATION FEE
- -------------------------------------- ------------------- ------------------------ ---------------------------- ------------------
Dura Pharmaceuticals, Inc.
2000 EMPLOYEE STOCK PURCHASE PLAN
Common Stock, $0.001 par value 500,000 shares $13.50 $6,750,000.00 $1,782.00
Dura Pharmaceuticals, Inc.
1992 STOCK OPTION PLAN
Common Stock, $0.001 par value 750,000 shares $13.50 $10,125,000.00 $2,673.00
Aggregate Shares 1,250,000 shares Aggregate Filing Fee $4,455.00
====================================== =================== ======================== ============================ ==================
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 2000 Employee Stock Purchase
Plan or the 1992 Stock Option Plan by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in the
number of the outstanding shares of Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the
high and low selling price per share of the Registrant's Common Stock on
June 19, 2000, as reported by the Nasdaq Stock Market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Dura Pharmaceuticals, Inc. (the "Registrant") hereby
incorporates by reference into this Registration Statement the following
documents previously filed with the Securities and Exchange Commission (the
"Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1999 filed with the Commission on
March 30, 2000;
(b) The Registrant's Quarterly Reports on Form 10-Q, filed with
the Commission on May 12, 2000 for the period ended March 31,
2000;
(c) The Registrant's Current Report on Form 8-K, filed with the
Commission on March 21, 2000; and
(d) The Registrant's Registration Statement No. 000-19809 on Form
8-A filed with the Commission on May 22, 1998 and amended on
December 10, 1998, pursuant to Section 12(b) of the Securities
Exchange Act of 1934 (the "Exchange Act"), in which there is
described the terms, rights and provisions applicable to the
Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "1934 Act") after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which de-registers all
securities then remaining unsold shall be deemed to be incorporated by reference
into this Registration Statement and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
(a) Section 145 of the Delaware General Corporation Law permits
indemnification of the Registrant's officers and directors
under certain conditions and subject to certain limitations.
Section 145 of the Delaware General Corporation Law also
provides that a corporation, like the Registrant, has the
power to purchase and maintain insurance on behalf of its
officers and directors against any liability asserted against
such person and incurred by him or her in such capacity, or
arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her
against such liability under the provisions of Section 145 of
the Delaware General Corporation Law.
(b) The Registrant's Bylaws (Article VII, Section (1)) provide
that the Registrant shall indemnify its directors and
executive officers to the fullest extent not prohibited by
Delaware General
II-1
Corporation Law. The rights to indemnity thereunder continue
as to a person who has ceased to be a director, officer,
employee or agent and inure to the benefit of the heirs,
executors and administrators of the person. In addition,
expenses incurred by a director or executive officer in
defending any civil, criminal, administrative or investigative
action, suit or proceeding by reason of the fact that he or
she is or was a director or officer of the Registrant (or was
serving at the Registrant's request as a director or officer
of another corporation) shall be paid by the Registrant in
advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall
ultimately be determined that he or she is not entitled to be
indemnified by the Registrant as authorized by the relevant
section of the Delaware General Corporation Law.
(c) As permitted by Section 102(b)(7) of the Delaware General
Corporation Law, Article V, Section (A) of the Registrant's
Certificate of Incorporation provides that a director of the
Registrant shall not be personally liable for monetary damages
for breach of his or her fiduciary duty as a director, except
for liability (i) for any breach of the director's duty of
loyalty to the Registrant or its stockholders, (ii) for acts
or omissions not in good faith or acts or omissions that
involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation
Law or (iv) for any transaction from which the director
derived any improper personal benefit.
(d) The Registrant has entered into indemnification agreements
with each of its directors and executive officers.
(e) There is directors and officers liability insurance now in
effect which insures the Registrant's directors and officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
EXHIBIT NUMBER EXHIBIT
- -------------- -------
4 Instruments Defining the Rights of Stockholders. Reference is made to Registrant's
Registration Statement No. 000-19809 on Form 8-A, together with any exhibits thereto, which are
incorporated herein by reference pursuant to Item 3(d) to this Registration Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
99.1 Dura Pharmaceuticals, Inc. 2000 Employee Stock Purchase Plan.
99.2 Dura Pharmaceuticals, Inc. 1992 Stock Option Plan.
Item 9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes: (1) to file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement: (i) to include any prospectus required
by Section 10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts
or events arising after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
II-2
purpose of determining any liability under the 1933 Act each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and (3) to remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the Registrant's 2000
Employee Stock Purchase Plan or 1992 Stock Option Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under
the 1933 Act may be permitted to directors, officers or controlling persons of
the Registrant pursuant to the indemnification provisions summarized in Item 6
or otherwise, the Registrant has been advised that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
1933 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the 1933 Act and
will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8, and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Diego, State of California on this
21st day of June, 2000.
DURA PHARMACEUTICALS, INC.
By: /s/ Cam L. Garner
------------------------------------------
Cam L. Garner
Chairman and Chief Executive Officer
II-4
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Dura
Pharmaceuticals, Inc., a Delaware corporation, do hereby constitute and appoint
Cam L. Garner, Chairman and Chief Executive Officer and Michael T. Borer, Senior
Vice President and Chief Financial Officer, and each of them, the lawful
attorneys-in-fact and agents with full power and authority to do any and all
acts and things and to execute any and all instruments which said attorneys and
agents, and any one of them, determine may be necessary or advisable or required
to enable said corporation to comply with the Securities Act of 1933, as
amended, and any rules or regulations or requirements of the Securities and
Exchange Commission in connection with this Registration Statement. Without
limiting the generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the undersigned officers
and directors in the capacities indicated below to this Registration Statement,
to any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and each of the undersigned hereby ratifies
and confirms that all said attorneys and agents, or any one of them, shall do or
cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated. Pursuant to the requirements of the
Securities Act of 1933, as amended, this Registration Statement has been signed
below by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ---------------------------------------- ------------------------------------------------ --------------
/s/ Cam L. Garner
- ---------------------------------------- Chairman, Chief Executive Officer and Director June 21, 2000
Cam L. Garner (Principal Executive Officer)
/s/ Michael T. Borer
- ---------------------------------------- Senior Vice President and Chief Financial June 21, 2000
Michael T. Borer Officer (Principal Financial and Accounting
Officer)
/s/ James C. Blair
- ---------------------------------------- Director June 21, 2000
James C. Blair
/s/ Herbert J. Conrad
- ---------------------------------------- Director June 21, 2000
Herbert J. Conrad
/s/ Joseph C. Cook, Jr.
- ---------------------------------------- Director June 21, 2000
Joseph C. Cook, Jr.
/s/ David F. Hale
- ---------------------------------------- Director June 21, 2000
David F. Hale
/s/ F. Richard Nichol
- ---------------------------------------- Director June 21, 2000
F. Richard Nichol
/s/ Gordon V. Ramseier
- ---------------------------------------- Director June 21, 2000
Gordon V. Ramseier
/s/ Charles G. Smith
- ---------------------------------------- Director June 21, 2000
Charles G. Smith
II-5
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
DURA PHARMACEUTICALS, INC.
EXHIBIT INDEX
EXHIBIT NUMBER EXHIBIT
-------------- -------
4 Instruments Defining the Rights of Stockholders. Reference is made to Registrant's
Registration Statement No. 000-19809 on Form 8-A, together with any exhibits thereto, which are
incorporated herein by reference pursuant to Item 3(d) to this Registration Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
99.1 Dura Pharmaceuticals, Inc. 2000 Employee Stock Purchase Plan.
99.2 Dura Pharmaceuticals, Inc. 1992 Stock Option Plan.