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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1 TO SCHEDULE 13E-3
(RULE 13e-100)
RULE 13E-3 TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE
SECURITIES EXCHANGE ACT OF 1934
SPIROS DEVELOPMENT CORPORATION II, INC.
(Name of the Issuer)
DURA PHARMACEUTICALS, INC.
SPIROS DEVELOPMENT CORPORATION II, INC.
(Name of Person(s) Filing Statement)
CALLABLE COMMON STOCK, PAR VALUE $.001 PER SHARE
(Title of Class of Securities)
848936 10 0
(CUSIP Number of Class of Securities)
CAM L. GARNER
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
DURA PHARMACEUTICALS, INC.
7475 LUSK BOULEVARD
SAN DIEGO, CALIFORNIA 92121
(858) 457-2553
DAVID S. KABAKOFF
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
SPIROS DEVELOPMENT CORPORATION II, INC.
7475 LUSK BOULEVARD
SAN DIEGO, CALIFORNIA 92121
(858) 457-2553
(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications on
Behalf of Person(s) Filing Statement)
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Copies to:
FAYE H. RUSSELL JOSEPH J. GIUNTA
RICHARD S. CHERNICOFF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
BROBECK, PHLEGER & HARRISON LLP 300 SOUTH GRAND AVENUE
12390 EL CAMINO REAL LOS ANGELES, CALIFORNIA 90071-3144
SAN DIEGO, CALIFORNIA 92130 (213) 687-5000
(858) 720-2500
This statement is filed in connection with (check the appropriate box):
a. / / The filing of solicitation materials or an information statement
subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the
Securities Exchange Act of 1934.
b. /X/ The filing of a registration statement under the Securities Act of
1933.
c. / / A tender offer.
d. / / None of the above.
Check the following box if the soliciting materials or information statement
referred to in checking box (a) are preliminary copies: / /
CALCULATION OF FILING FEE
Transaction Valuation (1) $87,978,620 Amount of Filing Fee: $17,596
/X/ Check box if any part of the fee is offset as provided by Rule
11(a)(2) and identify the filing with which the offsetting fee was previously
paid.
Identify the previous filing by registration statement number or the
form or schedule and the date of its filing.
Amount Previously Paid: $16,391(2) Filing Parties: Dura
Pharmaceuticals, Inc.
Form or Registration No.: 333-35512 Schedule Date Filed: April 25, 2000
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(1) Estimated solely for the purpose of determining the filing fee in
accordance with Exchange Act Rule 0-11(b), based on the average of the high and
low prices for shares of the Issuer as reported by The Nasdaq Stock Market on
April 18, 2000.
(2) Represents the fees paid by Dura Pharmaceuticals, Inc. in
connection with the filing of its registration statement on Form S-4 on
April 25, 2000.
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INTRODUCTION
This Rule 13e-3 Transaction Statement on Schedule 13E-3 is being
filed with the Securities and Exchange Commission (the "SEC") by Dura
Pharmaceuticals, Inc. ("Dura") and Spiros Development Corporation II, Inc.
("Spiros Corp. II") with respect to a proposed merger of Starfish Acquisition
Corp., Inc., a wholly owned subsidiary of Dura, into Spiros Corp. II.
ITEM 1. SUMMARY TERM SHEET.
Not applicable.
ITEM 2. SUBJECT COMPANY INFORMATION.
(a) NAME AND ADDRESS. The information set forth under the caption
"SUMMARY--The companies" in the Proxy Statement/Prospectus is incorporated
herein by reference pursuant to General Instruction F to Schedule 13E-3.
(b) SECURITIES. The information set forth under the caption "THE
SPECIAL MEETING" in the Proxy Statement/Prospectus is incorporated herein by
reference pursuant to General Instruction F to Schedule 13E-3.
(c) TRADING MARKET AND PRICE. The information set forth under the
caption "MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS" in the
Proxy Statement/Prospectus is incorporated herein by reference pursuant to
General Instruction F to Schedule 13E-3.
(d) DIVIDENDS. The information set forth under the caption
"SUMMARY--Market price and dividend information" in the Proxy
Statement/Prospectus is incorporated herein by reference pursuant to General
Instruction F to Schedule 13E-3.
(e) PRIOR PUBLIC OFFERINGS. The information set forth under the
caption "DESCRIPTION OF OUR BUSINESS--Overview" in the Proxy
Statement/Prospectus is incorporated herein by reference pursuant to General
Instruction F to Schedule 13E-3.
(f) PRIOR STOCK PURCHASES. Not applicable
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
(a) NAME AND ADDRESS. The information set forth on the Form S-4
cover page to the Proxy Statement/Prospectus and under the captions "ELECTION
OF DIRECTORS", "SECURITY OWNERSHIP OF MANAGEMENT" and "EXECUTIVE OFFICERS" in
Dura's Proxy Statement on Schedule 14A dated April 19, 2000 incorporated by
reference in the Proxy Statement/Prospectus is incorporated herein by
reference pursuant to General Instruction F to Schedule 13E-3. In addition,
Spiros Development Corporation II, Inc., the subject company, is located at
7475 Lusk Boulevard, San Diego, California 92121 and their business phone
number is (858) 457-2553. The information set forth under the captions
"ELECTION OF DIRECTORS", "SECURITY OWNERSHIP OF MANAGEMENT" and "EXECUTIVE
OFFICERS" in Spiros Corp. II's Form 10-K for the year ended December 31, 1999
incorporated by reference in this Schedule 13E-3 is incorporated herein by
reference pursuant to General Instruction F to Schedule 13E-3.
(b) BUSINESS AND BACKGROUND OF ENTITIES. The information set forth
under the caption "SUMMARY--The companies" in the Proxy Statement/Prospectus
is incorporated herein by reference pursuant to General Instruction F to
Schedule 13E-3.
(c) BUSINESS AND BACKGROUND OF NATURAL PERSONS. The information set
forth under the captions "ELECTION OF DIRECTORS" and "EXECUTIVE OFFICERS" in
Dura's Proxy Statement on Schedule 14A dated April 19, 2000 and Spiros Corp.
II's Form 10-K for the year ended December 31, 1999 incorporated by reference
in this Schedule 13E-3 is incorporated herein by reference pursuant to
General Instruction F to Schedule 13E-3.
ITEM 4. TERMS OF THE TRANSACTION.
(a)(1) Not applicable.
(a)(2) (i) The information set forth under the caption "SUMMARY--The
merger" in the Proxy Statement/Prospectus is incorporated herein by reference
pursuant to General Instruction F to Schedule 13E-3.
(ii) The information set forth under the caption
"SUMMARY--The merger" in the Proxy Statement/Prospectus is incorporated herein
by reference pursuant to General Instruction F to Schedule 13E-3.
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(iii) The information set forth under the captions "SPECIAL
FACTORS--Recommendation of our board of directors; our reasons for the
merger; fairness of the merger" and "SPECIAL FACTORS--Dura's reasons for the
merger" in the Proxy Statement/Prospectus is incorporated herein by reference
pursuant to General Instruction F to Schedule 13E-3.
(iv) The information set forth under the captions
"SUMMARY--Vote required of our stockholders" and "THE SPECIAL MEETING" in the
Proxy Statement/Prospectus is incorporated herein by reference pursuant to
General Instruction F to Schedule 13E-3.
(v) The information set forth under the captions
"SUMMARY--Comparison of rights of Dura's stockholders and our stockholders" and
"THE MERGER--Comparison of rights of Dura's stockholders and our stockholders"
in the Proxy Statement/Prospectus is incorporated herein by reference pursuant
to General Instruction F to Schedule 13E-3.
(vi) The information set forth under the captions
"SUMMARY--Accounting treatment" and "THE MERGER--Accounting treatment and future
reporting" in the Proxy Statement/Prospectus is incorporated herein by reference
pursuant to General Instruction F to Schedule 13E-3.
(vii) The information set forth under the captions
"SUMMARY--The merger will be a taxable transaction" and "THE MERGER
AGREEMENT--Federal income tax considerations" in the Proxy
Statement/Prospectus is incorporated herein by reference pursuant to General
Instruction F to Schedule 13E-3.
(c) Not Applicable.
(d) The information set forth under the captions "SUMMARY--Dissenters'
rights" and "RIGHTS OF DISSENTING STOCKHOLDERS" in the Proxy
Statement/Prospectus is incorporated herein by reference pursuant to General
Instruction F to Schedule 13E-3.
(e) The information set forth under the captions "THE SPECIAL
MEETING" in the Proxy Statement/Prospectus is incorporated herein by
reference pursuant to General Instruction F to Schedule 13E-3.
(f) The information set forth under the caption "SUMMARY--Stock
exchange listing" in the Proxy Statement/Prospectus is incorporated herein by
reference pursuant to General Instruction F to Schedule 13E-3
ITEM 5. PAST CONTRACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(a)(1) TRANSACTIONS. The information set forth under the captions
"THE MERGER--Relationship between us and Dura", "RELATED PARTY TRANSACTIONS"
and "INTERESTS OF CERTAIN PERSONS IN THE MERGER" in the Proxy/Statement
Prospectus is incorporated herein by reference pursuant to General
Instruction F to Schedule 13E-3.
(a)(2)Not Applicable
(b)(1)-(6) The information set forth under the caption "SPECIAL
FACTORS--Background of the merger" in the Proxy Statement/Prospectus is
incorporated herein by reference pursuant to General Instruction F to
Schedule 13E-3.
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(c) The information set forth under the caption "SPECIAL
FACTORS--Background of the merger" in the Proxy Statement/Prospectus is
incorporated herein by reference pursuant to General Instruction F to
Schedule 13E-3.
(e) The information set forth under the captions "SUMMARY--The merger,"
"THE MERGER--Relationship between us and Dura," "THE MERGER AGREEMENT" and
"DESCRIPTION OF THE WARRANTS" in the Proxy Statement/Prospectus is incorporated
herein by reference pursuant to General Instruction F to Schedule 13E-3.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
(b) The information set forth under the caption "THE MERGER" in the
Proxy Statement/Prospectus is incorporated herein by reference pursuant to
General Instruction F to Schedule 13E-3.
(c)(1) The information set forth under the caption "THE MERGER" in the
Proxy Statement/Prospectus is incorporated herein by reference pursuant to
General Instruction F to Schedule 13E-3.
(c)(2) Not applicable.
(c)(3) The information set forth under the caption
"SUMMARY--Unaudited pro forma condensed consolidated financial data" in the
Proxy Statement/Prospectus is incorporated herein by reference pursuant to
General Instruction F to Schedule 13E-3.
(c)(4) The information set forth under the caption "SPECIAL
FACTORS--Purposes of the merger and plans or proposals" in the Proxy
Statement/Prospectus is incorporated herein by reference pursuant to General
Instruction F to Schedule 13E-3.
(c)(5) Not applicable.
(c)(6) The information set forth under the caption "SPECIAL
FACTORS--Purposes of the merger and plans or proposals" in the Proxy
Statement/Prospectus is incorporated herein by reference pursuant to General
Instruction F to Schedule 13E-3.
(c)(7) The information set forth under the caption "SPECIAL
FACTORS--Purposes of the merger and plans or proposals" in the Proxy
Statement/Prospectus is incorporated herein by reference pursuant to General
Instruction F to Schedule 13E-3.
(c)(8) The information set forth under the caption "SPECIAL
FACTORS--Purposes of the merger and plans or proposals" in the Proxy
Statement/Prospectus is incorporated herein by reference pursuant to General
Instruction F to Schedule 13E-3.
ITEM 7. PURPOSES, ALTERNATIVES, REASONS AND EFFECTS.
(a) The information set forth under the caption "SPECIAL
FACTORS--Purposes of the merger and plans or proposals" in the Proxy
Statement/Prospectus is incorporated herein by reference pursuant to General
Instruction F to Schedule 13E-3.
(b) The information set forth under the caption "SPECIAL FACTORS" in
the Proxy Statement/Prospectus is incorporated herein by reference pursuant
to General Instruction F to Schedule 13E-3.
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(c) The information set forth under the caption "SPECIAL FACTORS" in
the Proxy Statement/Prospectus is incorporated herein by reference pursuant
to General Instruction F to Schedule 13E-3.
(d) The information set forth under the captions "THE MERGER
AGREEMENT" and "SUMMARY--Unaudited pro forma condensed consolidated financial
data" in the Proxy Statement/Prospectus is incorporated herein by reference
pursuant to General Instruction F to Schedule 13E-3
ITEM 8. FAIRNESS OF THE TRANSACTION.
(a) The information set forth under the caption
"SUMMARY--Recommendation of the special committee and our board of directors"
in the Proxy Statement/Prospectus is incorporated herein by reference
pursuant to General Instruction F to Schedule 13E-3.
(b) The information set forth under the caption "SPECIAL FACTORS" in
the Proxy Statement Prospectus is incorporated herein by reference pursuant
to General Instruction F to Schedule 13E-3
(c) The information set forth under the caption "SUMMARY--Vote
required of our stockholders" in the Proxy Statement/Prospectus is
incorporated herein by reference pursuant to General Instruction F to
Schedule 13E-3.
(d) The information set forth under the caption "SPECIAL FACTORS" in
the Proxy Statement/Prospectus is incorporated herein by reference pursuant
to General Instruction F to Schedule 13E-3.
(e) The information set forth under the caption
"SUMMARY--Recommendation of the special committee and our board of directors"
in the Proxy Statement/Prospectus is incorporated herein by reference
pursuant to General Instruction F to Schedule 13E-3.
(f) Not applicable.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS.
(a) The information set forth under the captions "SUMMARY--Opinion
of our financial advisor," "SPECIAL FACTORS--Opinion of SG Cowen Securities
Corporation" and "SPECIAL FACTORS--Opinion of Merrill Lynch Pierce Fenner &
Smith Incorporated" in the Proxy Statement/Prospectus is incorporated herein
by reference pursuant to General Instruction F to Schedule 13E-3.
(b)(1)-(6) The information set forth under the caption "SPECIAL
FACTORS--Opinion of SG Cowen Securities Corporation" and "SPECIAL
FACTORS--Opinion of Merrill Lynch Pierce Fenner & Smith Incorporated" in the
Proxy Statement/Prospectus is incorporated herein by reference pursuant to
General Instruction F to Schedule 13E-3.
(c) The information set forth under the caption "WHERE YOU CAN FIND
MORE INFORMATION" in the Proxy Statement/Prospectus is incorporated herein by
reference pursuant to General Instruction F to Schedule 13E-3.
ITEM 10. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION.
(a) The information set forth under the caption "SUMMARY--The merger"
and "THE MERGER--Dura's funding of the merger" in the Proxy Statement/Prospectus
is incorporated herein by reference pursuant to General Instruction F to
Schedule 13E-3.
(b) The information set forth under the captions
"SUMMARY--Conditions to the merger" and "THE MERGER AGREEMENT--Conditions to
the merger" in the Proxy Statement/Prospectus is incorporated herein by
reference pursuant to General Instruction F to Schedule 13E-3.
(c) The information set forth under the caption "THE MERGER--Expenses"
in the Proxy Statement/Prospectus is incorporated herein by reference pursuant
to General Instruction F to Schedule 13E-3.
(d) Not applicable.
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ITEM 11. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) The information set forth under the captions "OUR PRINCIPAL
STOCKHOLDERS" and "SECURITY OWNERSHIP OF OUR MANAGEMENT" in the Proxy
Statement/Prospectus is incorporated herein by reference pursuant to General
Instruction F to Schedule 13E-3.
(b) Not applicable.
ITEM 12. THE SOLICITATION OR RECOMMENDATION.
(d) The information set forth under the captions "THE SPECIAL
MEETING--Voting by our directors and executive officers and Dura" and
"RELATED AGREEMENTS" in the Proxy Statement/Prospectus is incorporated herein
by reference pursuant to General Instruction F to Schedule 13E-3.
(e) The information set forth under the captions "SPECIAL FACTORS"
in the Proxy Statement/Prospectus is incorporated herein by reference
pursuant to General Instruction F to Schedule 13E-3.
ITEM 13. FINANCIAL STATEMENTS.
(a) The information set forth under the caption "SUMMARY--Selected
historical financial data" and the information set forth under the caption
"FINANCIAL STATEMENTS--SPIROS DEVELOPMENT CORPORATION II, INC." in the Proxy
Statement/Prospectus is incorporated herein by reference pursuant to General
Instruction F to Schedule 13E-3.
(b) The information set forth under the caption "SUMMARY--Unaudited
pro forma condensed consolidated financial data" and the information set
forth under the caption "FINANCIAL STATEMENTS--UNAUDITED PRO FORMA CONDENSED
CONSOLIDATED FINANCIAL INFORMATION" in the Proxy Statement/Prospectus is
incorporated herein by reference pursuant to General Instruction F to
Schedule 13E-3.
ITEM 14. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED.
(a) The information set forth under the caption "THE SPECIAL MEETING"
in the Proxy Statement/Prospectus is incorporated herein by reference pursuant
to General Instruction F to Schedule 13E-3.
(b) Not applicable.
ITEM 15. ADDITIONAL INFORMATION.
(b) Not applicable.
ITEM 16. EXHIBITS.
(a)(1)-(5) The Proxy Statement/Prospectus included within the SEC
Registration Statement on Form S-4 of Dura filed with the SEC on April 25,
2000 (Registration No. 333-35512) (incorporated herein by reference to Dura's
Registration Statement on Form S-4 filed with the SEC on April 25, 2000
(Registration No. 333-35512)).
(b) Not applicable.
(c) Opinion of SG Cowen Securities Corporation dated March 20, 2000
(incorporated herein by reference to Annex B to the Proxy
Statement/Prospectus) and SG Cowen board presentation filed as exhibit 99.1
hereto and received by the special committee at its meeting on March 20, 2000
conformed to reflect comments made at or prior to the time of such meeting.
Opinion of Merrill Lynch Pierce Fenner & Smith Incorporated dated March 20,
2000 (incorporated herein by reference to Annex C to the Proxy
Statement/Prospectus) and Merrill Lynch board presentation filed as exhibit
99.2 hereto.
(d) Not applicable.
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(f) The Proxy Statement/Prospectus included within the Registration
Statement on Form S-4 of Dura filed with the SEC on April 25, 2000
(Registration No. 333-35512) (incorporated herein by reference to Dura's
Registration Statement on Form S-4 filed with the SEC on April 25, 2000
(Registration No. 333-35512)).
(g) Not applicable.
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SIGNATURES
After due inquiry and to the best of their knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
DURA PHARMACEUTICALS, INC.
By: /s/ John R. Cook
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Name: John R. Cook
Title: Vice President, Associate General Counsel
and Secretary
Dated: June 16, 2000
SPIROS DEVELOPMENT CORPORATION II, INC.
By: /s/ David S. Kabakoff
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Name: David S. Kabakoff
Title: Chairman, President and Chief Executive
Officer
Dated: June 16, 2000
