As filed with the Securities and Exchange Commission on November 12, 1999
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 BLVD.
SAN DIEGO, CALIFORNIA 92121
(Address of principal executive offices) (Zip Code)
----------------
1992 STOCK OPTION PLAN, AS AMENDED AND RESTATED
STOCK OPTION
(Full title of the plans)
----------------
CAM L. GARNER
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
DURA PHARMACEUTICALS, INC.
7475 LUSK BLVD., SAN DIEGO, CALIFORNIA 92121
(Name and address of agent for service)
(858) 457-2553
(Telephone number, including area code, of agent for service)
----------------
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission, and sales of the registered securities
will begin as soon as reasonably practicable after such effective date.
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered per Share Price Fee
---------- ---------- --------- --------- ------------
1992 STOCK OPTION PLAN, AS AMENDED AND RESTATED
Common Stock, par value $.001 2,500,000 shares(1) $12.66 (2) $31,650,000 (2) $8,799
------- ----------- ------
STOCK OPTION
Common Stock, par value $.001 192,308 shares(1) $10.31 (2) $1,982,695 (2) $551
----
Aggregate Filing Fee $9,350
------
- -----------------------------
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1992 Stock Option Plan as
amended and restated or the Stock Option by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an
increase in the number of the Company's outstanding shares of Common
Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) and
457(c) of the Securities Act of 1933, as amended (the "1933 Act"), on
the basis of the average of the bid and asked prices per share of
Common Stock of Dura Pharmaceuticals, Inc. on November 10, 1999, as
reported by the Nasdaq National 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 SEC:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998, filed with the SEC on March 31,
1999, which incorporates by reference portions of the
Registrant's Proxy Statement for the Annual Stockholder
Meeting Held on May 20, 1999, filed with the SEC on April 16,
1999;
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1999 and June 30, 1999, filed with
the SEC on May 7, 1999 and August 13, 1999, respectively;
(c) The Registrant's Current Report on Form 8-K, filed with the
SEC on January 15, 1999; and
(d) The description of the Registrant's Common Stock, par value
$0.001 per share, and related Preferred Stock rights contained
in the Registrant's Form 8-A Registration Statement, filed on
July 22, 1997 and Form 8-A Registration Statement, filed on
May 22, 1998, including any amendments or reports filed to
update such descriptions.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of 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 deregisters 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.
II-1
(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 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
-------------- -------
5.1 Opinion and Consent of Brobeck, Phleger &
Harrison LLP
23.1 Consent of Brobeck, Phleger & Harrison LLP
(contained in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP, independent
auditors
24.1 Power of Attorney. Reference is made to the signature
page of this Registration Statement
99.1(1) 1992 Stock Option Plan, as amended and restated
99.2 Form of Notice of Grant of Stock Option
99.3 Notice of Grant of Stock Option dated November
9, 1998, granted to Robert S. Whitehead,
which supercedes the Notice of Grant of
Stock Option dated July 10, 1998, filed as
Exhibit 10.4 to the Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter
ended September 30, 1999
- -----------------
(1) Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1999.
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
II-2
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 paragraphs 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 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 offering.
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 foregoing provisions, or otherwise, the Registrant
has been advised that, in the opinion of the SEC, 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 12th day
of November, 1999.
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 and
Michael T. Borer, 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 either 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 either 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 November 12, 1999
- ------------------------------------ (Principal Executive Officer)
Cam L. Garner
/s/ Michael T. Borer Senior Vice President and Chief Financial Officer November 12, 1999
- ------------------------------------- (Principal Financial and Accounting Officer)
Michael T. Borer
/s/ David S. Kabakoff Director and President, Dura Technologies November 12, 1999
- ------------------------------------
David S. Kabakoff
/s/ James C. Blair Director November 12, 1999
- ------------------------------------
James C. Blair
/s/ Herbert J. Conrad Director November 12, 1999
- ------------------------------------
Herbert J. Conrad
/s/ Joseph C. Cook, Jr. Director November 12, 1999
- ------------------------------------
Joseph C. Cook, Jr.
/s/ David F. Hale Director November 12, 1999
- ------------------------------------
David F. Hale
/s/ Gordon V. Ramseier Director November 12, 1999
- ------------------------------------
Gordon V. Ramseier
II-5
/s/ Charles G. Smith Director November 12, 1999
- ------------------------------------
Charles G. Smith
II-6
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
DURA PHARMACEUTICALS, INC.
EXHIBIT INDEX
-------------
EXHIBIT
NUMBER DOCUMENT
------- --------
5.1 Opinion and Consent of Brobeck, Phleger & Harrison LLP
23.1 Consent of Brobeck, Phleger & Harrison LLP (contained in
Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP, independent auditors
24.1 Power of Attorney. Reference is made to the signature page of
this Registration Statement
99.1(1) 1992 Stock Option Plan, as amended and restated
99.2 Form of Notice of Grant of Stock Option
99.3 Notice of Grant of Stock Option dated November 9, 1998, granted
to Robert S. Whitehead, which supercedes the Notice of Grant of
Stock Option dated July 10, 1998, filed as Exhibit 10.4 to the
Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1999
- -----------------
(1) Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1999.