<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 16, 1997
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
SPIROS DEVELOPMENT CORPORATION II, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 5122 33-0774288
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) IdentificationNumber)
incorporation or organization)
</TABLE>
7475 LUSK BOULEVARD, SAN DIEGO, CALIFORNIA 92121 (415) 457-2553
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
DURA PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 5122 95-3645543
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification
incorporation or organization) Number)
</TABLE>
7475 LUSK BOULEVARD, SAN DIEGO, CALIFORNIA 92121 (415) 457-2553
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
CAM L. GARNER DAVID S. KABAKOFF
Chairman, President and Chief Chairman, President and Chief
Executive Officer Executive Officer
DURA PHARMACEUTICALS, INC. SPIROS DEVELOPMENT CORPORATION II,
INC.
7475 Lusk Boulevard c/o Dura Pharmaceuticals, Inc.
San Diego, California 92121 7475 Lusk Boulevard
(619) 457-2553 San Diego, California 92121
(619) 457-2553
(Name, address, including zip code, (Name, address, including zip code,
and telephone and telephone
number, including area code, of agent number, including area code, of agent
for service) for service)
------------------------
WITH COPIES TO:
FAYE H. RUSSELL, ESQ. MARK KESSELL, ESQ.
BROBECK, PHLEGER & HARRISON LLP SHERMAN & STERLING
550 West"C" Street, Suite 1300 599 Lexington Avenue
San Diego, California 92101 New York, New York 10022
(619) 234-1966 (212) 848-4000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
------------------------
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, 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/ 333-37673/37673-01
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: / /
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT PRICE(1) FEE
Units, each consisting of one share of
Spiros Development Corporation II,[nb]Inc.
Callable Common Stock, par value $.001 per
share, and one warrant to purchase one-
fourth of one share of Dura Common Stock... 934,375 $16.00 $14,950,000 $4,411
<S> <C> <C> <C> <C>
Spiros Development Corporation II, Inc.
Callable Common Stock included in the
Units...................................... 934,375 -- -- --
Dura Common Stock Purchase Warrants included
in the Units............................... 934,375 -- -- --
Dura Common Stock issuable upon exercise of
the Purchase Option(2)..................... (3) (3) $27,479,969 $8,107
Dura Common Stock issuable upon exercise of
Dura Common Stock Purchase Warrants
included in the Units(4)................... 233,594 $44.94(4) $10,497,714 $3,097
Total................................... $52,927,683 $15,615
</TABLE>
(1) Assumes the exercise of the Underwriters' over-allotment option.
(2) Shares to be issued if Dura exercises the Purchase Option described in the
Prospectus contained herein at any time before January 1, 2001 and pays the
exercise price in shares of Dura Common Stock.
(3) Omitted pursuant to Rule 457(o) under the Securities Act of 1933, as
amended.
(4) Pursuant to Rule 457(g)(3) under the Securities Act of 1933, as amended,
based on the offering price of securities of the same class as determined in
accordance with Rule 457(c) under the Securities Act of 1933, as amended.
<PAGE>
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This Registration Statement filed under the Securities Act of 1933, as
amended, by Spiros Development Corporation II, Inc. ("SDC II") and Dura
Pharmaceuticals, Inc. ("Dura") with the Securities and Exchange Commission (the
"Commission") hereby incorporate by reference the contents of the Registration
Statement on Forms S-1/S-3 (File Nos. 333-37673/37673-01) relating to the
offering of an aggregate amount of $101,200,000 of Units by SDC II and Dura.
CERTIFICATION
SDC II and Dura hereby certify to the Commission that they have instructed
their bank to pay the Commission the filing fee of $15,615 for the additional
securities being registered hereby as soon as practicable (but in any event no
later than the close of business on December 17, 1997); 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 December 17, 1997.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Spiros
Development Corporation II, Inc. has duly caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of San Diego, County of San Diego, State of California, on the 16th day of
December, 1997.
<TABLE>
<S> <C> <C>
SPIROS DEVELOPMENT CORPORATION II, INC.
By: /s/ DAVID S. KABAKOFF
------------------------------------------
David S. Kabakoff
CHAIRMAN, PRESIDENT AND
CHIEF EXECUTIVE OFFICER
</TABLE>
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.
NAME TITLE DATE
- ------------------------------ -------------------------- -------------------
Chairman, President and
/s/ DAVID S. KABAKOFF Chief Executive Officer
- ------------------------------ (Principal Executive December 16, 1997
(David S. Kabakoff) Officer)
Vice President and Chief
* Financial Officer
- ------------------------------ (Principal Financial and December 16, 1997
(Erle T. Mast) Accounting Officer)
*
- ------------------------------ Director December 16, 1997
(Cam L. Garner)
*By: /s/ DAVID S. KABAKOFF
-------------------------
David S. Kabakoff
David S. Kabakoff,
ATTORNEY-IN-FACT
II-1
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Dura
Pharmaceuticals, Inc. 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, County of San Diego, State of
California, on the 16th day of December, 1997.
<TABLE>
<S> <C> <C>
DURA PHARMACEUTICALS, INC.
By: /s/ CAM L. GARNER
-----------------------------------------
Cam L. Garner
CHAIRMAN, PRESIDENT AND
CHIEF EXECUTIVE OFFICER
</TABLE>
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>
NAME TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
Chairman, President and
/s/ CAM L. GARNER Chief Executive Officer
- ------------------------------ (Principal Executive December 16, 1997
(Cam L. Garner) Officer)
Senior Vice President,
Finance and
/s/ JAMES W. NEWMAN Administration, and
- ------------------------------ Chief Financial Officer December 16, 1997
(James W. Newman) (Principal Financial and
Accounting Officer)
/s/ DAVID S. KABAKOFF
- ------------------------------ Executive Vice President December 16, 1997
(David S. Kabakoff) and Director
Senior Vice President,
* Sales and Marketing,
- ------------------------------ Director and Marketing, December 16, 1997
(Walter F. Spath) Director
*
- ------------------------------ Director December 16, 1997
(James C. Blair)
*
- ------------------------------ Director December 16, 1997
(Herbert J. Conrad)
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
NAME TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
*
- ------------------------------ Director December 16, 1997
(Joseph C. Cook)
*
- ------------------------------ Director December 16, 1997
(David F. Hale)
*
- ------------------------------ Director December 16, 1997
(Gordon V. Ramseier)
*
- ------------------------------ Director December 16, 1997
(Charles G. Smith)
</TABLE>
*By: /s/ CAM L. GARNER
-------------------------
Cam L. Garner
Cam L. Garner,
ATTORNEY-IN-FACT
II-3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ----------- ---------------------------------------------------------------------------------------------------------
<C> <S>
5.1 Opinion of Brobeck, Phleger & Harrison LLP as to the legality of the securities being registered,
including consent.
8.1 Opinion of Brobeck, Phleger & Harrison LLP as to certain tax matters, including consent.
23.1 Consent of Brobeck, Phleger & Harrison LLP (included in exhibits 5.1 and 8.1).
23.2 Consent of Deloitte & Touche LLP, Independent Auditors.
23.3 Consent of Kleinfeld, Kaplan and Becker.
24.1* Powers of Attorney.
</TABLE>
- ------------------------
* Incorporated by reference to the same-numbered exhibit to the Registration
Statement on Forms S-1/S-3 (No. 333-37673/37673-01) filed on October 12,
1997, as amended.
<PAGE>
EXHIBIT 5.1
[BROBECK, PHLEGER & HARRISON LLP LETTERHEAD]
December 16, 1997
Dura Pharmaceuticals, Inc.
7475 Lusk Boulevard
San Diego, CA 92121
Spiros Development Corporation II, Inc.
7475 Lusk Boulevard
San Diego, CA 92121
Re: PUBLIC OFFERING OF UNITS
Ladies and Gentlemen:
We have acted as counsel to Dura Pharmaceuticals, Inc., a Delaware
corporation ("Dura"), and Spiros Development Corporation II, Inc., a Delaware
corporation ("Spiros Corp. II"), in connection with the proposed issuance and
sale, pursuant to a Registration Statement on Forms S-1/S-3 (the
"Registration Statement"), of up to 934,375 units (the "Units"), including
97,500 and 24,375 Units which the U.S. Underwriters and International
Underwriters, respectively, have the option to purchase to cover
over-allotments, if any. Each Unit consists of one share of the callable
common stock of Spiros Corp. II (the "Callable Common Stock") and one warrant
to purchase one-fourth of one share of the common stock of Dura (the
"Warrants"). The Registration Statement relates to (i) the offer and sale of
the Callable Common Stock, (ii) the offer and sale of the Warrants and the
shares of Dura common stock underlying the Warrants (the "Warrant Shares")
and (iii) the shares of Dura common stock issuable, if any, if Dura exercises
the Purchase Option as described in the Registration Statement and related
prospectuses (the "Prospectuses") and pays the exercise price in shares of
Dura common stock (the "Purchase Option Shares"). The Units, the Callable
Common Stock, the Warrants, the Warrant Shares and the Purchase Option Shares
are hereinafter collectively referred to as the "Securities." Capitalized
terms not otherwise defined herein shall have the meanings given to them in
the Registration Statement.
This opinion is being furnished in accordance with the requirements of
Item 16(a) of Form S-1, Item 16(a) of Form S-3 and Item 601(b)(5)(i) of
Regulation S-K under the Securities Act of 1933, as amended (the "Act").
In connection with this opinion, we have examined the Registration
Statement and related Prospectuses; Dura's Amended and Restated Certificate of
Incorporation, as amended through the date hereof; Spiros Corp. II's Certificate
of Incorporation, as amended through the date hereof; the Amended and Restated
Certificate of Incorporation of Spiros
<PAGE>
Dura Pharmaceuticals, Inc. December 16, 1997
Spiros Development Corporation II, Inc. Page 2
Corp. II, which the Registration Statement contemplates will become effective
immediately prior to the issuance and sale of the Units; Dura's Amended and
Restated Bylaws, as amended through the date hereof; Spiros Corp. II's Bylaws,
as amended through the date hereof; the Amended and Restated Bylaws of Spiros
Corp. II, which the Registration Statement contemplates will become effective
immediately prior to the issuance and sale of the Units; 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 Securities, if, as and when sold and issued in
accordance with and in the manner referred to in the Registration Statement
and Prospectuses (as amended and supplemented through the date of issuance)
and, in the case of the Warrant Shares or the Purchase Option Shares, when
issued in compliance with the terms of the respective Warrants or Purchase
Option, will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Prospectuses. 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 Act 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 the matters set forth
above and we render no opinion, whether by implication or otherwise, as to any
other matters relating to Dura, Spiros Corp. II or the Securities.
Very truly yours,
/s/ Brobeck, Phleger & Harrison LLP
BROBECK, PHLEGER & HARRISON LLP
<PAGE>
EXHIBIT 8.1
December 16, 1997
Dura Pharmaceuticals, Inc.
7475 Lusk Boulevard
San Diego, California 92121
Spiros Development Corporation II, Inc.
7475 Lusk Boulevard
San Diego, California 92121
Ladies and Gentlemen:
We have acted as counsel to Dura Pharmaceuticals, Inc., a Delaware
corporation ("Dura"), and, in certain limited matters, to Spiros Development
Corporation II, Inc., a Delaware corporation ("Spiros Corp. II"), in
connection with the offering ("Offering") of units consisting of one share of
the Callable Common Stock of Spiros Corp. II ("Spiros Corp. II Common Stock")
and one warrant ("Warrant") to purchase one-fourth of one share of the Common
Stock of Dura (the "Units"), pursuant to Spiros Corp. II's and Dura's
Registration Statement on Forms S-1/S-3 (the "Registration Statement").
In connection with this opinion, we have examined the Registration
Statement and related Prospectuses, Dura's Amended and Restated Certificate
of Incorporation, as amended through the date hereof, Dura's bylaws, as
amended through the date hereof, Spiros Corp. II's Certificate of
Incorporation (including a copy of the Amended and Restated Certificate of
Incorporation to be filed by Spiros Corp. II immediately prior to the closing
of the Subscription Offering), and Spiros Corp. II's bylaws, as amended
through the date hereof. We have also reviewed the originals, or copies
certified to our satisfaction, of the Technology License Agreement, the
Development Agreement, the Manufacturing and Marketing Agreement, the
Services Agreement, the Albuterol and Product Option Agreement and such other
agreements (the "Agreements") and 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 the Registration Statement, the Agreements and the
Documents.
In rendering the opinions set forth below, we have relied (or will rely)
upon the following additional representations and assumptions:
<PAGE>
Dura Pharmaceuticals, Inc. December 16, 1997
Spiros Development Corporation II, Inc. Page 2
1. The form of Agreements and Documents supplied to us that we reviewed
in connection with rendering opinions hereunder will be validly
executed in substantially the same form in which they have been filed
as exhibits to the Registration Statement and will be binding and
enforceable in accordance with their terms.
2. All parties will perform under such Agreements in accordance with
their terms.
3. There are no other or further agreements which would alter, amend or
otherwise materially affect the relationships created by or described
in the above listed Agreements and Documents or described in the
Registration Statement.
Our opinions represent only our best judgment regarding the application
of federal income tax laws under the Internal Revenue Code of 1986, as
amended (the "Code"), existing judicial decisions, administrative regulations
and published rulings and procedures. Our opinion is not binding upon the
Internal Revenue Service or the courts, and there is no assurance that the
Internal Revenue Service will not successfully assert contrary positions.
Furthermore, no assurance can be given that future legislative, judicial
decisions or administrative changes, applicable either on a prospective or
retroactive basis, might not materially alter our opinions. Nevertheless, we
undertake no responsibility to advise you of any new developments in the
application or interpretation of the federal income tax laws.
Based on and subject to the foregoing, we are of the opinion that the
statements in the Registration Statement and the Prospectuses (as amended and
supplemented through the date of issuance) under the captions "United States
Federal Income Tax Consequences" and "United States Taxation of Non-U.S.
Persons," to the extent they constitute matters of law or legal conclusions
with respect thereto, have been prepared or reviewed by us and are correct in
all material respects.
We express no opinion as to any other tax issues affecting persons
acquiring, holding or disposing of the Units, the Spiros Corp. II Common
Stock, the Warrants or the Common Stock of Dura issuable upon exercise of the
Warrants or Dura's Purchase Option (as defined in the Registration Statement)
or any other party to any of the Agreements, nor does our opinion address
state, local or foreign tax consequences that may result from the
transactions.
<PAGE>
Dura Pharmaceuticals, Inc. December 16, 1997
Spiros Development Corporation II, Inc. Page 3
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Respectfully,
/s/ Brobeck, Phleger & Harrison LLP
BROBECK, PHLEGER & HARRISON LLP
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this combined
Registration Statement of Spiros Development Corporation II, Inc. ("Spiros
II") on Form S-1 and of Dura Pharmaceuticals, Inc. ("Dura") on Form S-3
pursuant to Rule 462(b) under the Securities Act of 1933, as amended,
(collectively, the "Registration Statement") of our report dated January 20,
1997, relating to the consolidated financial statements of Dura, incorporated
by reference in the Annual Report on Form 10-K of Dura for the year ended
December 31, 1996.
We also consent to the incorporation by reference in this Registration
Statement of our report dated March 21, 1997 (November 6, 1997 as to Note 7),
relating to the financial statements of Spiros Development Corporation (a
development stage enterprise) as of December 31, 1995 and 1996 and for the
periods then ended appearing in the Current Report of Dura on Form 8-K filed
on October 10, 1997, as amended. We also consent to the incorporation by
reference in this Registration Statement of our report dated October 9, 1997,
relating to the balance sheet of Spiros II (a development stage enterprise)
as of September 30, 1997.
We also consent to the references to us under the heading "Experts" in
the Prospectus, which is part of the combined Registration Statement No.
333-37673/37673-01 of Spiros II on Form S-1 and Dura on Form S-3,
incorporated by reference in this Registration Statement.
DELOITTE & TOUCHE LLP
San Diego, California
December 16, 1997
<PAGE>
EXHIBIT 23.3
KLEINFELD, KAPLAN AND BECKER LETTERHEAD
The undersigned hereby consent to the use of our name and the statement with
respect to us that appears under the heading "Experts" contained in the
Registration Statement on Forms S-1/S-3 and related Prospectus of Spiros
Development Corporation II, Inc. and Dura Pharmaceuticals, Inc.
KLEINFELD, KAPLAN AND BECKER
/s/ Richard S. Morey
----------------------------
Richard S. Morey
Dated: December 16, 1997
