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As filed with the Securities and Exchange Commission on May 7, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SPIROS DEVELOPMENT CORPORATION II, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0774233
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
7475 LUSK BOULEVARD
SAN DIEGO, CALIFORNIA 92121
(Address of principal executive offices) (Zip Code)
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1997 STOCK OPTION PLAN
(Full title of the Plan)
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DAVID S. KABAKOFF
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
SPIROS DEVELOPMENT CORPORATION II, INC.
7475 LUSK BOULEVARD
SAN DIEGO, CALIFORNIA 92121
(Name and address of agent for service)
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(Telephone number, including area code, of agent for service)
(619) 457-2553
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share(2) Price(2) Fee
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<S> <C> <C> <C> <C>
Callable Common Stock,
$.001 par value 948,750 shares $16.69 $15,834,638 $4,672
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</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Callable Common Stock which become issuable under the 1997 Stock
Option Plan 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 Registrant's outstanding shares of Callable 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 prices per Unit, each Unit consisting of one share of
Callable Common Stock of the Registrant and one warrant to purchase
one-fourth of one share of Common Stock of Dura Pharmaceuticals, Inc., on
May 5, 1998, as reported by the Nasdaq National Market.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Spiros Development Corporation II, 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 filed March 30,
1998 with the Commission pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), which
sets forth the Registrant's audited financial statements for the
fiscal year ended December 31, 1997.
(b) the Registrant's Definitive Proxy Statement filed April 9,
1998 with the Commission, pursuant to Section 14(a) of the 1934 Act.
(c) the Registrant's Registration Statement No. 000-23501 on Form 8-A
filed December 11, 1997 with the Commission, pursuant to Section 12
of the 1934 Act which describes the terms, rights and provisions
applicable to the Registrant's Common Stock.
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
Section 145 of the Delaware General Corporation Law permits
indemnification of officers and directors of the Registrant under certain
conditions and subject to certain limitations. Section 145 of the Delaware
General Corporation Law also provides that a corporation 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.
Article VII, Section 7 of the Amended and Restated Bylaws of the
Registrant provides that the Registrant shall indemnify its directors and
executive officers to the fullest extent not prohibited by the Delaware General
Corporation Law. The rights to indemnity thereunder continue as to a person who
has ceased to be a director, officer,
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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
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.
As permitted by Section 102(b)(7) of the Delaware General Corporation
Law, Article VIII, Section 8.1(a) of the Registrant's Amended and Restated
Certificate of Incorporation provides that a director of the Registrant shall
not be personally liable for monetary damages for breach of 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.
The Registrant has entered into indemnification agreements with each
of its officers and directors. The Registrant has directors' and officers'
liability insurance in effect which insures its directors and officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
Exhibit Number Exhibit
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4.0 Instruments Defining Rights of Stockholders.
Reference is made to Registrant's Registration
Statement No. 000-23501 on Form 8-A, which is
incorporated herein by reference pursuant to Item
3 of this Registration Statement.
5.0 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.
24.0 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1+ Spiros Development Corporation II, Inc. 1997 Stock Option Plan.
99.2+ 1997 Stock Option Plan Form of Notice of Grant of Stock Option.
99.3+ 1997 Stock Option Plan Form of Stock Option Agreement.
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+ Incorporated by reference to the Company's Annual Report on Form
10-K (File No. 000 23501), filed on March 30, 1998.
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 Securities 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
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Exchange Act that are incorporated by reference into this Registration
Statement; (2) that for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Brobeck, Phleger & Harrison LLP 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 upon the termination of the
offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the 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
Securities Act may be permitted to directors, officers or controlling persons of
the Registrant pursuant to the Delaware General Corporation Law, or the
indemnication provisions summarized in Item 6, or otherwise, the Registrant has
been informed that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
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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 7th day of May, 1998.
SPIROS DEVELOPMENT CORPORATION II, INC.
By /s/ DAVID S. KABAKOFF
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DAVID S. KABAKOFF
Chairman, President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Spiros Development
Corporation II, Inc. a Delaware corporation, do hereby constitute and appoint
David S. Kabakoff as his true and lawful attorney-in-fact and agent with full
power and authority to do any and all acts and things and to execute any and all
instruments which said attorney and agent determines may be necessary or
advisable or required to enable said corporation to comply with the Securities
Act, as amended, and any rules or regulations or requirements of the 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 said attorney and agent 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.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ DAVID S. KABAKOFF Chairman, President, Chief Executive Officer May 7, 1998
- ------------------------------------- and Director (Principal Executive Officer)
David S. Kabakoff
/s/ ERLE T. MAST Vice President and Chief Financial Officer May 7, 1998
- ------------------------------------- (Principal Financial and Accounting Officer)
Erle T. Mast
/s/ CAM L. GARNER Director May 7, 1998
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Cam L. Garner
/s/ ROBERT S. WHITEHEAD Director May 7, 1998
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Robert S. Whitehead
/s/ ALAIN B. SCHREIBER Director May 7, 1998
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Alain B. Schreiber
/s/ SOL LIZERBRAM Director May 7, 1998
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Sol Lizerbram
</TABLE>
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EXHIBIT INDEX
Exhibit Number Exhibit
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4.0 Instruments Defining Rights of Stockholders. Reference is made
to Registrant's Registration Statement No. 000-23501 on Form 8-A,
which is incorporated herein by reference pursuant to Item 3
of this Registration Statement.
5.0 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.
24.0 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1+ Spiros Development Corporation II, Inc. 1997 Stock Option Plan.
99.2+ 1997 Stock Option Plan Form of Notice of Grant of Stock Option.
99.3+ 1997 Stock Option Plan Form of Stock Option Agreement.
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+ Incorporated by reference to the Company's Annual Report on Form
10-K (File No. 000 2350)1, filed on March 30, 1998.
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Exhibit 5.0
Opinion and consent of Brobeck, Phleger & Harrison LLP
<PAGE>
May 7, 1998
Spiros Development Corporation II, Inc.
7475 Lusk Boulevard
San Diego, CA 92121
Re: Spiros Development Corporation II, Inc. Registration
Statement on Form S-8 For Offering of 948,750 Shares of
Common Stock
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Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration Statement")
under the Securities Act of 1933, as amended, of 948,750 shares of common stock
("Common Stock") of Spiros Development Corporation II, Inc. (the "Registrant")
for issuance under the Registrant's 1997 Stock Option Plan (the "Plan"). We
advise you that, in our opinion, when such shares have been issued and sold
pursuant to the applicable provisions of the Plan and in accordance with the
Registration Statement, such shares will be validly issued, fully paid and
non-assessable shares of the Registrant's Common Stock.
We hereby consent to the filing of this opinion as Exhibit 5.0 to the
Registration Statement. In giving this consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
This opinion is expressed as of the date hereof and we disclaim any
undertaking to advise you of any subsequent changes in applicable law or in the
facts stated or assumed herein which may alter, affect or modify the opinion
expressed herein. Our opinion is expressly limited to those matters set forth
above and we render no opinion, whether by implication or otherwise, as to any
other matters relating to the Registrant or the Common Stock.
Very truly yours,
/s/ BROBECK, PHLEGER & HARRISON LLP
BROBECK, PHLEGER & HARRISON LLP
<PAGE>
Exhibit 23.1
Consent of Deloitte & Touche LLP, Independent Auditors
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Spiros Development Corporation II, Inc. on Form S-8 of our report dated
February 12, 1998, appearing in the Annual Report on Form 10-K for the year
ended December 31, 1997.
/s/ DELOITTE & TOUCHE LLP
San Diego, California
May 7, 1998
