<PAGE> 1
As filed with the Securities and Exchange Commission on May 22, 1996
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DURA PHARMACEUTICALS, INC.
(Exact name of Registrant as specified in its charter)
CALIFORNIA 95-3645543
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
5880 Pacific Center Blvd., San Diego, California 92121
(619) 457-2553
(Address, including zip code, and telephone
number, including area code, of
Registrant's principal executive
offices)
Cam L. Garner
Chairman, President and Chief Executive Officer
DURA PHARMACEUTICALS, INC.
5880 Pacific Center Blvd., San Diego, California 92121
(619) 457-2553
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Craig S. Andrews, Esq. Thomas E. Sparks, Jr., Esq.
Faye H. Russell, Esq. John L. Donahue, Esq.
John R. Cook, Esq. T. Michael Hird, Esq.
BROBECK, PHLEGER & HARRISON LLP PILLSBURY MADISON & SUTRO LLP
550 West C Street, Suite 1300 235 Montgomery Street
San Diego, California 92101 San Francisco, California 94104
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: \ \
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: \ \
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: \x\ 333-4210
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. \ \
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: \ \
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1)(2) PER SHARE OFFERING PRICE(3) FEE(4)
<S> <C> <C> <C> <C>
Common Stock, no par value..................... 402,500 shares $58.75 $23,646,875 $8,155
====================================================================================================================================
</TABLE>
(1) Includes 52,500 shares of Common Stock that the Underwriters have the
option to purchase to cover over-allotments, if any.
(2) Shares of Common Stock previously registered include 2,300,000 shares for
which the registration fee has previously been paid.
(3) The proposed maximum offering price per share is based on the proposed
offering price for the shares of the Company's Common Stock offered hereby.
(4) Calculated pursuant to Rule 457.
<PAGE> 2
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This Registration Statement filed under the Securities Act of 1933, as
amended, by Dura Pharmaceuticals, Inc. (the "Company") with the Securities and
Exchange Commission (the "Commission") hereby incorporates by reference the
contents of the Registration Statement on Form S-3 (File No. 333-4210) relating
to the offering of up to 2,300,000 Shares of Common Stock of the Company filed
on April 29, 1996.
CERTIFICATION
The Company hereby certifies to the Commission that it has instructed
its bank to pay the Commission the filing fee of $8,155 for the additional
securities being registered hereby as soon as practicable (but in any event no
later than the close of business on May 23, 1996); that it will not revoke such
instructions; that it has sufficient funds in the relevant account to cover the
amount of the filing fee; and that it undertakes to confirm receipt of such
instructions by the bank on May 23, 1996.
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Philadelphia, State of Pennsylvania, on the
22nd day of May, 1996.
DURA PHARMACEUTICALS, INC.
By: /s/ Cam L. Garner
-----------------------------------------------
Cam L. Garner
Chairman, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Cam L. Garner Chairman, President and Chief Executive Officer May 22, 1996
- ------------------------------------------------ (Principal Executive Officer)
(Cam L. Garner)
/s/ James W. Newman Senior Vice President, Finance and Administration, May 22, 1996
- ------------------------------------------------ and Chief Financial Officer (Principal
(James W. Newman) Financial and Accounting Officer)
* Senior Vice President, Sales May 22, 1996
- ------------------------------------------------ and Marketing, and Director
(Walter F. Spath)
* Director May 22, 1996
- ------------------------------------------------
(Jerry C. Benjamin)
* Director May 22, 1996
- ------------------------------------------------
(James C. Blair)
* Director May 22, 1996
- ------------------------------------------------
(Herbert J. Conrad)
* Director May 22, 1996
- ------------------------------------------------
(Joseph C. Cook)
* Director May 22, 1996
- ------------------------------------------------
(David F. Hale)
* Director May 22, 1996
- ------------------------------------------------
(Gordon V. Ramseier)
* Director May 22, 1996
- ------------------------------------------------
(Charles G. Smith)
* /s/ Cam L. Garner May 22, 1996
- ------------------------------------------------
(Cam L. Garner, Attorney-in-Fact)
</TABLE>
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequentially
No. Description Numbered Page
------- ----------- -------------
<S> <C> <C>
5.1 Opinion of Brobeck, Phleger & Harrison LLP with respect to the
Common Stock being registered.
23.1 Consent of Brobeck, Phleger & Harrison LLP (contained in their
opinion filed as Exhibit 5.1).
23.2 Independent Auditors' Consent, Deloitte & Touche LLP.
23.3 Consent of Kleinfeld, Kaplan and Becker.
+24.1 Power of Attorney.
</TABLE>
- -----------------------
+ Incorporated by reference to the same-numbered exhibit to the Company's
Registration Statement on Form S-3 (No. 333-4210) filed on April 29, 1996.
<PAGE> 1
EXHIBIT 5.1
OPINION OF BROBECK, PHLEGER & HARRISON LLP
<PAGE> 2
BROBECK PHLEGER & HARRISON
LETTERHEAD
May 22, 1996
Dura Pharmaceuticals, Inc.
5880 Pacific Center Blvd.
San Diego, California 92121
Re: 402,500 Shares of Common Stock of Dura Pharmaceuticals, Inc.
Ladies and Gentlemen:
We have acted as counsel to Dura Pharmaceuticals, Inc., a
California corporation (the "Company"), in connection with the proposed issuance
and sale by the Company of up to 402,500 shares of the Company's Common Stock
(the "Shares"), pursuant to the Company's Registration Statement on Form S-3
(the "Registration Statement").
In connection with this opinion, we have examined the
Registration Statement and related Prospectus, the Company's Restated Articles
of Incorporation, as amended through the date hereof, the Company's bylaws, as
amended through the date hereof, and the originals, or copies certified to our
satisfaction, of such records, documents, certificates, memoranda and other
instruments as in our judgment are necessary or appropriate to enable us to
render the opinion expressed below (the "Documents"). We are relying (without
any independent investigation thereof) upon the truth and accuracy of the
statements, covenants, representations and warranties set forth in such
Documents.
On the basis of the foregoing, and in reliance thereon, we are
of the opinion that the Shares have been duly authorized, and if, as and when
issued in accordance with the Registration Statement and Prospectus (as amended
and supplemented through the date of issuance) will be validly issued, fully
paid and nonassessable.
<PAGE> 3
[LOGO]
Dura Pharmaceuticals, Inc. May 22, 1996
Page 2
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to all references to us in the
Registration Statement, the Prospectus and any further amendments thereto.
Subject to the foregoing sentence, this opinion is given as of the date hereof
solely for your benefit and may not be relied upon, circulated, quoted or
otherwise referred to for any purpose without our prior written consent.
Very truly yours,
/s/ BROBECK, PHLEGER & HARRISON
BROBECK, PHLEGER & HARRISON LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF BROBECK, PHLEGER & HARRISON LLP
(Contained in Exhibit 5.1)
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT, DELOITTE & TOUCHE LLP
We consent to the incorporation by reference in this Registration Statement of
Dura Pharmaceuticals, Inc. on Form S-3 of our report dated January 29, 1996
(April 26, 1996 as to the reclassifications described in Note 2), included in
the Annual Report on Form 10-K/A of Dura Pharmaceuticals, Inc. for the year
ended December 31, 1995, and to the use of our report dated January 29, 1996
(April 26, 1996 as to the reclassifications described in Note 2), appearing in
the Prospectus, which is part of Registration Statement No. 333-4210 on Form
S-3, as supplemented pursuant to Rule 424(a) under the Securities Act of 1933 by
the preliminary prospectus dated May 2, 1996 (collectively, "Registration
Statement No. 333-4210"). Registration Statement No. 333-4210 is incorporated by
reference in this Registration Statement. We also consent to the incorporation
by reference in this Registration Statement of our report dated February 10,
1995 (March 8, 1995 as to Note 3), which is incorporated by reference in
Registration Statement No. 333-4210, relating to the financial statements of
Dura Delivery Systems, Inc. (a development stage enterprise) as of December 31,
1993 and 1994 and for the periods then ended included in the Current Report on
Form 8-K/A of Dura Pharmaceuticals, Inc. dated December 29, 1995. We also
consent to the reference to us under the heading "Experts" in such Prospectus.
DELOITTE & TOUCHE LLP
San Diego, California
May 20, 1996
<PAGE> 1
EXHIBIT 23.3
[KLEINFELD, KAPLAN AND BECKER LETTERHEAD]
CONSENT OF KLEINFELD, KAPLAN AND BECKER
The undersigned hereby consent to the incorporation by reference into the
Registration Statement on Form S-3 of Dura Pharmaceuticals, Inc. of the use of
our name and the statement with respect to us that appears under the heading
"Experts" contained in the Registration Statement on Form S-3 (Registration
No. 333-4210) and related Prospectus of Dura Pharmaceuticals, Inc.
KLEINFELD, KAPLAN AND BECKER
By: /s/ ALAN H. KAPLAN
--------------------------
Alan H. Kaplan
Dated: May 22, 1996
