SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
DURA PHARMACEUTICALS, INC.
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(Exact name of registrant as specified in charter)
DELAWARE 000-19809 95-3645543
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(State of incorporation or (Commission (IRS Employer
organization) File Number) Identification No.)
7475 LUSK BOULEVARD, SAN DIEGO, CALIFORNIA 92121-4204
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(Address of principal executive offices)
Registrant's telephone number, including area code (619) 457-2553
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Securities to be registered pursuant to Section 12(b) of the Act:
NONE
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(Title of Class)
Securities to be registered pursuant to Section 12(g) of the Act:
PREFERRED STOCK PURCHASE RIGHTS
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(Title of Class)
Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED.
On May 21, 1998 the Board of Directors of Dura Pharmaceuticals,
Inc. (the "Company") declared a dividend of one preferred share purchase
right (a "Right") for each outstanding share of Common Stock (the "Common
Stock"), par value $.001 per share, of the Company. The dividend is payable
on June 5, 1998 (the "Record Date") to the stockholders of record on that
date. Each Right entitles the registered holder to purchase from the Company
one one-thousandth of a share (a "Unit") of Series A Junior Participating
Preferred Stock, par value $.001 per share (the "Series A Preferred Stock"),
of the Company at a price of $175.00 per Unit (the "Purchase Price"), subject
to adjustment. The description and terms of the Rights are set forth in a
Rights Agreement dated as of May 21, 1998 (the "Rights Agreement") between
the Company and ChaseMellon Shareholder Services, L.L.C., as Rights Agent
(the "Rights Agent").
Until the earlier to occur of (i) the close of business on the
first date of a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") have acquired beneficial ownership
of 15% or more of the outstanding Common Stock or (ii) 10 business days (or
such later date as may be determined by action of the Continuing Directors
prior to such time as any Person becomes an Acquiring Person) following the
commencement of, or announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of such outstanding Common
Stock (the earlier of such dates being called the "Distribution Date"), the
Rights will be evidenced, with respect to any of the Common Stock
certificates outstanding as of the Record Date, by such Common Stock
certificate with a copy of the Summary of Rights attached thereto.
The Rights Agreement provides that, until the Distribution Date,
the Rights will be transferred with and only with the Common Stock. Until
the Distribution Date (or earlier redemption or expiration of the Rights),
new Common Stock certificates issued after the Record Date, upon transfer or
new issuance of Common Stock will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption
or expiration of the Rights), the surrender for transfer of any certificates
for Common Stock, outstanding as of the Record Date, even without such
notation or a copy of this Summary of Rights being attached thereto, will
also constitute the transfer of the Rights associated with the Common Stock
represented by such certificate. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights ("Rights
Certificates") will be mailed to holders of record of the Common Stock as of
the Close of Business on the Distribution Date and such separate Rights
Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire at the close of business on June 5, 2008 (the "Final
Expiration Date"), unless the Final Expiration Date is extended or unless the
Rights are earlier redeemed or exchanged by the Company, in each case as
described below.
The Purchase Price payable, and the number of Units of Series A
Preferred Stock or other securities or property issuable, upon exercise of the
Rights are subject to adjustment from time to time to prevent dilution (i) in
the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Series A Preferred Stock, (ii) upon the grant to
holders of the Units of Series A Preferred Stock of certain rights or warrants
to subscribe for or purchase Units of Series A Preferred Stock at a price, or
securities convertible into Units of Series A Preferred Stock with a conversion
price, less than the then current market price of the Units of Series A
Preferred Stock or (iii) upon the distribution to holders of the Units of Series
A Preferred Stock of evidences of indebtedness or assets (excluding regular
periodic cash dividends paid out of earnings or retained earnings or dividends
payable in Units of Series A Preferred Stock) or of subscription rights or
warrants (other than those referred to above).
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The number of outstanding Rights and the number of Units of Series A
Preferred Stock issuable upon exercise of each Rights are also subject to
adjustment in the event of a stock split of the Common Stock or a stock dividend
on the Common Stock payable in Common Stock or subdivisions, consolidations or
combinations of the Common Stock occurring, in any such case, prior to the
Distribution Date.
Units of Series A Preferred Stock purchasable upon exercise of the
Rights will not be redeemable. Each Unit of Series A Preferred Stock will be
entitled to an aggregate dividend of 1,000 times the dividend declared per share
of Common Stock. In the event of liquidation, the holders of the Units of
Series A Preferred Stock will be entitled to an aggregate payment of 1,000 times
the payment made per share of Common Stock. Each Unit of Series A Preferred
Stock will have 1,000 votes, voting together with the Common Stock. Finally, in
the event of any merger, consolidation or other transaction in which shares of
Common Stock are exchanged, each Unit of Series A Preferred Stock will be
entitled to receive 1,000 times the amount received per share of Common Stock.
These rights are protected by customary antidilution provisions.
Because of the nature of the dividend, liquidation and voting
rights, the value of each Unit of Series A Preferred Stock purchasable upon
exercise of each Right should approximate the value of one share of Common
Stock.
In the event that, after the Rights become exercisable, the Company is
acquired in a merger or other business combination transaction with an Acquiring
Person or an affiliate thereof, or 50% or more of its consolidated assets or
earning power are sold to an Acquiring Person or an affiliate thereof, proper
provision will be made so that each holder of a Rights will thereafter have the
right to receive, upon exercise thereof at the then current exercise price of
the Rights, that number of shares of common stock of the acquiring company which
at the time of such transaction will have a market value of two times the
exercise price of the Rights.
In the event that any person or group of affiliated or associated
persons becomes the beneficial owner of 15% or more of the outstanding shares of
Common Stock, proper provision shall be made so that each holder of a Right,
other than Rights beneficially owned by the Acquiring Person (which will
thereafter be void), will thereafter have the right to receive upon exercise
that number of shares of Common Stock or Units of Series A Preferred Stock (or
cash, other securities or property) having a market value of two times the
exercise price of the Rights.
At any time after the acquisition by a person or group of affiliated
or associated persons of beneficial ownership of 15% or more of the outstanding
shares of Common Stock and prior to the acquisition by such person or group of
50% or more of the outstanding Common Stock, the Continuing Directors of the
Company may exchange the Rights (other than Rights owned by such person or group
which have become void), in whole or in part, at an exchange ratio of one Unit
of Series A Preferred Stock (subject to adjustment) which shall equal, subject
to adjustment to reflect stock splits, stock dividends and similar transactions
occurring after the date hereof, that number obtained by dividing the Purchase
Price by the then current per share market price per Unit of Series A Preferred
Stock on the earlier of (i) the date on which any Person becomes an Acquiring
Person and (ii) the date on which a tender or exchange offer is announced by any
Person, if upon consummation thereof such Person would be the Beneficial Owner
of 15% or more of the shares of Company Common Stock then outstanding.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional shares of Series A Preferred Stock will be
issued (other than fractions which are integral multiples of one one-thousandth
of a share of Series A Preferred Stock, which may, at the election of the
Company, be evidenced by depositary receipts) and, in lieu thereof, an
adjustment in cash will be made based on the market price of the Units of Series
A Preferred Stock on the last trading day prior to the date of exercise.
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At any time on or prior to the close of business on the first date of
a public announcement that a person or group of affiliated or associated persons
acquire beneficial ownership of 15% or more of the outstanding Common Stock
(unless the Continuing Directors extends such ten-day period), the Board of
Directors of the Company may redeem the Rights in whole, but not in part, at a
price of $.01 per Right (the "Redemption Price"), upon the approval of a
majority of the Continuing Directors. The redemption of the rights may be made
effective at such time on such basis and with such conditions as the Board of
Directors, upon the approval of the Continuing Directors in its sole discretion
may establish. Immediately upon any redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the holders of Rights
will be to receive the Redemption Price. The Rights are also redeemable under
other circumstances as specified in the Rights Agreement.
The terms of the Rights may be amended by the Board of Directors of
the Company without the consent of the holders of the Rights upon the approval
of a majority of the Continuing Directors except that from and after a
Distribution Date no such amendment may adversely affect the interests of the
holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Company's Board of Directors, except pursuant to an
offer conditioned on a substantial number of Rights being acquired. The Rights
should not interfere with any merger or other business combination approved by
the Board of Directors since the Rights may be redeemed by the Company at the
Redemption Price prior to the occurrence of a Distribution Date.
The Rights Agreement, dated as of May 21, 1998 between the Company and
the Rights Agent, specifying the terms of the Rights, is attached hereto as an
exhibit and is incorporated herein by reference. The foregoing description of
the Rights is qualified in its entirety by reference to such exhibit.
Item 2. EXHIBITS.
+3.1 Certificate of Incorporation of the Company
3.2 Certificate of Amendment of Certificate of Incorporation of the
Company
+3.3 Bylaws of the Company
4. Rights Agreement, dated as of May 21, 1998 between the Company and
ChaseMellon Shareholder, which includes the form of Certificate of
Designation for the Series A Junior Participating Preferred Stock
as Exhibit A, the form of Rights Certificate as Exhibit B and the
Summary of Rights to Purchase Series A Preferred Stock as Exhibit
C. Pursuant to the Rights Agreement, printed Right Certificates
will not be mailed until as soon as practicable after the earlier
of (i) the close of business on the first date of a public
announcement that a person or group has acquired beneficial
ownership of 15% or more of the shares of Common Stock or (ii) the
tenth (10th) business day (or such later date as may be determined
by action of the Board of Directors) after a person commences, or
announces its intention to commence, a tender offer or exchange
offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of the shares of
Common Stock.
+ These exhibits were previously filed as part of, and are hereby
incorporated by reference to, the same exhibits filed with the
Company's Report on Form 10-Q filed on July 15, 1997.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
DURA PHARMACEUTICALS, INC.
DATE: May 21, 1998 By: /s/ CAM L. GARNER
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Name: Cam L. Garner
Title: Chairman, President and Chief
Executive Officer
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EXHIBIT INDEX
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
+3.1 Certificate of Incorporation of the Company
3.2 Certificate of Amendment of Certificate of Incorporation of the
Company
+3.3 Bylaws of the Company
4. Rights Agreement, dated as of May 21, 1998 between the Company and
ChaseMellon Shareholder Services, L.L.C., which includes the form of
Certificate of Designation for the Series A Junior Participating
Preferred Stock as Exhibit A, the form of Rights Certificate as
Exhibit B and the Summary of Rights to Purchase Preferred Stock as
Exhibit C. Pursuant to the Rights Agreement, printed Right
Certificates will not be mailed until as soon as practicable after
the earlier of (i) the close of business on the first date of a
public announcement that a person or group has acquired beneficial
ownership of 15% or more of the shares of Common Stock or (ii) the
tenth (10th) business day (or such later date as may be determined
by action of the Board of Directors) after a person commences, or
announces its intention to commence, a tender offer or exchange
offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of the shares of
Common Stock.
+ These exhibits were previously filed as part of, and are hereby
incorporated by reference to, the same exhibits filed with the
Company's Report on Form 10-Q filed on July 15, 1997.
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