<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 16, 1997
REGISTRATION NO. 333-37673/37673-01
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
AMENDMENT NO. 5
TO 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
(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 (619) 457-2553
(Address and telephone number, including area code, of registrant's principal
executive offices)
------------------------------
AMENDMENT NO. 5
TO 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 (619) 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)
------------------------------
COPIES TO:
FAYE H. RUSSELL, ESQ. MARK KESSEL, ESQ.
BROBECK, PHLEGER & HARRISON LLP SHEARMAN & 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 THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
------------------------------
* If the securities being registered on this form are being offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: /X/
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: / /
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 this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration 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: / /
------------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THE REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A)
MAY DETERMINE.
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* SOLELY WITH RESPECT TO THE FORM S-3.
<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.
SPIROS DEVELOPMENT CORPORATION II, INC.
By: /s/ DAVID S. KABAKOFF
-----------------------------------------
DAVID S. KABAKOFF
CHAIRMAN, PRESIDENT AND
CHIEF EXECUTIVE OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED OF BEHALF OF SPIROS DEVELOPMENT
CORPORATION II, INC. BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES
INDICATED.
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- ----------------
Chairman, President and
/s/ DAVID S. KABAKOFF Chief Executive Officer December 16,
- ------------------------------ (Principal Executive 1997
DAVID S. KABAKOFF Officer)
Vice President and Chief
* Financial Officer December 16,
- ------------------------------ (Principal Financial and 1997
ERLE T. MAST Accounting Officer)
*
- ------------------------------ Director December 16,
CAM L. GARNER 1997
*/s/ DAVID S. KABAKOFF
- ------------------------------
BY: DAVID S. KABAKOFF,
ATTORNEY-IN-FACT
II-6
<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 ON BEHALF OF DURA PHARMACEUTICALS, INC.
BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- ----------------
<C> <S> <C>
Chairman, President and
/s/ CAM L. GARNER Chief Executive Officer December 16,
- ------------------------------ (Principal Executive 1997
CAM L. GARNER Officer)
Senior Vice President,
Finance and
/s/ JAMES W. NEWMAN Administration, and Chief December 16,
- ------------------------------ Financial Officer 1997
JAMES W. NEWMAN (Principal Financial and
Accounting Officer)
/s/ DAVID S. KABAKOFF
- ------------------------------ Executive Vice President December 16,
DAVID S. KABAKOFF and Director 1997
* Senior Vice President,
- ------------------------------ Sales and Marketing, and December 16,
WALTER F. SPATH Director 1997
*
- ------------------------------ Director December 16,
JAMES C. BLAIR 1997
*
- ------------------------------ Director December 16,
HERBERT J. CONRAD 1997
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- ----------------
<C> <S> <C>
*
- ------------------------------ Director December 16,
JOSEPH C. COOK, JR. 1997
*
- ------------------------------ Director December 16,
DAVID F. HALE 1997
*
- ------------------------------ Director December 16,
GORDON V. RAMSEIER 1997
*
- ------------------------------ Director December 16,
CHARLES G. SMITH 1997
*/s/ CAM S. GARNER
- ------------------------------
BY: CAM L. GARNER,
ATTORNEY-IN-FACT
</TABLE>
II-8
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- -------------------------------------------------------------------------------------------------------
<C> <S>
1.1++ Form of U.S. Purchase Agreement.
1.2++ Form of International Purchase Agreement.
3.1++ Certificate of Incorporation of Spiros Corp. II.
3.2++ By-laws of Spiros Corp. II.
3.3++ Amended and Restated Certificate of Incorporation of Spiros Corp. II (to be effective immediately prior
to closing).
3.4++ Amended and Restated By-laws of Spiros Corp. II (to be effective immediately prior to closing).
4.1++ Purchase Option (included in Exhibit 3.3).
4.2++ Form of Warrant Agreement, including form of Warrant.
4.3++ Form of Warrant (included in Exhibit 4.2).
4.4+++ Specimen Unit Certificate.
4.5+++ Specimen Stock Certificate for Dura Common Stock.
4.6+++ Specimen Stock Certificate for Spiros Corp. II Common Stock.
4.7+++ Specimen Stock Certificate for Spiros Corp. II Special Shares.
5.1++ Opinion of Brobeck, Phleger & Harrison LLP as to legality of the securities being registered, including
consent.
8.1+ Opinion of Brobeck, Phleger & Harrison LLP as to certain tax matters, including consent.
10.1++ Form of Technology License Agreement.
10.2++ Form of Development Agreement.
10.3++ Form of Albuterol and Product Option Agreement.
10.4++ Form of Manufacturing and Marketing Agreement.
10.5++ Form of Services Agreement.
10.6++ Spiros Corp. II 1997 Stock Option Plan.
10.7++ Form of Spiros Corp. II Notice of Grant of Stock Option
10.8++ Form of Spiros Corp. II Stock Option Agreement
10.9++ Form of Addendum to Stock Option Agreement
10.10++ Form of Spiros Corp. II Indemnification Agreement for Directors.
10.11++ Form of Spiros Corp. II Indemnification Agreement for Officers.
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, regulatory counsel.
24.1++ Powers of Attorney.
27.1++ Financial Data Schedule of Spiros Corp. II.
</TABLE>
- ------------------------
+ As amended.
++ Previously filed.
+++ Previously filed and incorporated herein by reference in the Company's
Registration Statement on Form 8-A, File No. 333-37673/37673-01 filed on
December 11, 1997.
<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
