<PAGE> 1
As filed with the Securities and Exchange Commission on November 12, 1996
Registration No. 333-_______
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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.
Martin C. Nichols, Esq. George A. Gucker, Esq.
BROBECK, PHLEGER & HARRISON LLP PILLSBURY MADISON & SUTRO LLP
550 West C Street, Suite 1300 P.O. Box 7880
San Diego, California 92101 San Francisco, California 94120-7880
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/ 333-14321
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>
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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 UNIT OFFERING PRICE(3) FEE (4)
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<S> <C> <C> <C> <C>
Common Stock, no par value.... 690,000 shares $33.25 $22,942,500 $6,953
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</TABLE>
(1) Includes 90,000 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 4,600,000 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.
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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. 333-14321) relating
to the offering of up to 4,600,000 Shares of Common Stock of the Company filed
on October 17, 1996.
CERTIFICATION
The Company hereby certifies to the Commission that it has instructed
its bank to pay the Commission the filing fee of $6,953 for the additional
securities being registered hereby as soon as practicable (but in any event no
later than the close of business on November 13, 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 November 13, 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 San Diego, State of California, on the 12th day of
November, 1996.
DURA PHARMACEUTICALS, INC.
By: /s/ Cam L. Garner
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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 November 12, 1996
- --------------------------------- (Principal Executive Officer)
(Cam L. Garner)
/s/ James W. Newman Senior Vice President, Finance and Administration, November 12, 1996
- --------------------------------- and Chief Financial Officer (Principal
(James W. Newman) Financial and Accounting Officer)
* Executive Vice President November 12, 1996
- --------------------------------- and Director
(David S. Kabakoff)
* Senior Vice President, Sales November 12, 1996
- --------------------------------- and Marketing, and Director
(Walter F. Spath)
* Director November 12, 1996
- ---------------------------------
(James C. Blair)
* Director November 12, 1996
- ---------------------------------
(Herbert J. Conrad)
* Director November 12, 1996
- ---------------------------------
(Joseph C. Cook)
* Director November 12, 1996
- ---------------------------------
(David F. Hale)
* Director November 12, 1996
- ---------------------------------
(Gordon V. Ramseier)
* Director November 12, 1996
- ---------------------------------
(Charles G. Smith)
*/s/ Cam L. Garner November 12, 1996
- ---------------------------------
(Cam L. Garner, Attorney-in-Fact)
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequentially
No. Description Numbered Page
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<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. 333-14321) filed on October 17,
1996.
<PAGE> 1
EXHIBIT 5.1
OPINION OF BROBECK, PHLEGER & HARRISON LLP
November 12, 1996
Dura Pharmaceuticals, Inc.
5880 Pacific Center Blvd.
San Diego, California 92121
Re: 690,000 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 690,000 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.
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,
BROBECK, PHLEGER & HARRISON LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF BROBECK, PHLEGER & HARRISON LLP
(Contained in Exhibit 5.1)
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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. 333-14321 on Form S-3,
as supplemented pursuant to Rule 424(a) under the Securities Act of 1933 by the
preliminary prospectus dated October 21, 1996 and as amended (collectively,
"Registration Statement No. 333-14321"). Registration Statement No. 333-14321 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. 333-14321, 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.
San Diego, California
November 11, 1996
<PAGE> 1
EXHIBIT 23.3
CONSENT OF KLEINFELD, KAPLAN AND BECKER
[KLEINFELD, KAPLAN AND BECKER LETTERHEAD]
CONSENT FORM
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.
333-14321) and related Prospectus of Dura Pharmaceuticals, Inc.
KLEINFELD, KAPLAN AND BECKER
/s/ ALAN H. KAPLAN
------------------
Alan H. Kaplan
Dated: November 11, 1996
