-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, D/LXX7cfHEihUmR6tqODxF4oyq9e1tTqlbBpzr64fcmqxmQXpCus0J26Ayy4vtco DSicbUp7+J0DfK3W4Cb2xw== 0001047469-97-007868.txt : 19971217 0001047469-97-007868.hdr.sgml : 19971217 ACCESSION NUMBER: 0001047469-97-007868 CONFORMED SUBMISSION TYPE: 10-K/A PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 19961231 FILED AS OF DATE: 19971216 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: DURA PHARMACEUTICALS INC/CA CENTRAL INDEX KEY: 0000882098 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 953645543 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K/A SEC ACT: SEC FILE NUMBER: 000-19809 FILM NUMBER: 97738796 BUSINESS ADDRESS: STREET 1: 7475 LUSK BLVD CITY: SAN DIEGO STATE: CA ZIP: 92121 BUSINESS PHONE: 6194572553 MAIL ADDRESS: STREET 1: 7475 LUSK BLVD CITY: SAN DIEGO STATE: CA ZIP: 92121 10-K/A 1 FORM 10-K/A SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K/A#1 X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES ----- EXCHANGE ACT OF 1934 For fiscal year ended December 31, 1996 OR TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE ----- SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED) For the transition period from ________ to ________. COMMISSION FILE NUMBER: 000-19809 DURA PHARMACEUTICALS, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) CALIFORNIA 95-3645543 (State or other jurisdiction (I.R.S. Employer or incorporation or organization) Identification No.) 5880 Pacific Center Blvd. San Diego, California 92121-4202 (Address of principal executive offices) (zip code) Registrant's telephone number, including area code (619) 457-2553 SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: NONE SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: COMMON STOCK, NO PAR VALUE Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No . ----- ------ Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K [ ]. The aggregate market value of the voting stock held by non-affiliates of the registrant as of February 28, 1997 was $1,457,451,662. For the purposes of this calculation, shares owned by officers, directors (and their affiliates) and 10% or greater shareholders known to the registrant have been deemed to be affiliates. The number of shares of the Registrant's Common Stock outstanding as of February 28, 1997 was 43,437,978. Portions of Registrant's Proxy Statement for the Annual Meeting of Shareholders scheduled to be held on May 28, 1997, to be filed with the Securities and Exchange Commission on or about April 16, 1997, referred to herein as the "Proxy Statement," are incorporated as provided in Part III, and portions of the Registrant's Annual Report to Shareholders for the fiscal year ended December 31, 1996, attached hereto as Exhibit 13, referred to herein as the "Annual Report," are incorporated as provided in parts II and IV. 2 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized. Date: December 16, 1997 DURA PHARMACEUTICALS, INC. --------------------------- By: /s/ Cam L. Garner ------------------------------- Cam L. Garner, Chairman, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Cam L. Garner and James W. Newman, or either of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Annual Report on Form 10-K, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THIS ANNUAL REPORT ON FORM 10-K/A HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS ON BEHALF OF THE REGISTRANT AND IN THE CAPACITIES AND ON THE DATES INDICATED. SIGNATURE TITLE DATE /s/ Cam L. Garner Chairman, President and December 16, 1997 - --------------------- Chief Executive Officer (Cam L. Garner) (Principal Executive Officer) /s/ David S. Kabakoff Executive Vice President December 16, 1997 - --------------------- and Director (David S. Kabakoff) /s/ James W. Newman Senior Vice President, Finance and December 16, 1997 - --------------------- Administration, and Chief (James W. Newman) Financial Officer (Principal Financial and Accounting Officer) /s/ Walter F. Spath Senior Vice President, December 16, 1997 - --------------------- Sales and Marketing and Director (Walter F. Spath) /s/ James C. Blair Director December 16, 1997 - --------------------- (James C. Blair) /s/ Herbert J. Conrad Director December 16, 1997 - --------------------- (Herbert J. Conrad) /s/ Joseph C. Cook Director December 16, 1997 - --------------------- (Joseph C. Cook) /s/ David F. Hale Director December 16, 1997 - --------------------- (David F. Hale) /s/ Gordon V. Ramseier Director December 16, 1997 - --------------------- (Gordon V. Ramseier) /s/ Charles G. Smith Director December 16, 1997 - --------------------- (Charles G. Smith) 3 PART IV ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K (a) 1. INDEX TO CONSOLIDATED FINANCIAL STATEMENTS Consolidated Balance Sheets Consolidated Statements of Operations Consolidated Statements of Shareholders' Equity Consolidated Statements of Cash Flows Notes to Consolidated Financial Statements Independent Auditors' Report (a) 2. INDEX TO FINANCIAL STATEMENT SCHEDULES Financial statement schedules are omitted because they are not required, are not applicable or the information is included in the consolidated financial statements or notes thereto. (a) 3. EXHIBITS EXHIBIT NO. DESCRIPTION ------- ----------- 15) 3.1 Articles of Incorporation of the Company, as amended 2) 3.2 By-laws, as amended 1) 10.1 Assumption Agreement, dated December 2, 1991, between the Company and Silicon Valley Bank. 1) 10.6 Loan and Security Agreement, dated September 30, 1991, between the Company and Silicon Valley Bank. 1) 10.7 Security Agreement, dated September 30, 1991, between the Company and Silicon Valley Bank. 1) 10.8 Securities Purchase Agreement, dated August 20, 1991, between the Company and the Investors listed on Schedule A thereto, together with the related Form of Promissory Note, Form of Stock Purchase Warrant, Form of Security Agreement and Form of Registration Rights Agreement. 1) 10.19 License Agreement by and between the Company and Sterling Drug Inc. currently known as Sterling Winthrop, Inc., dated June 26, 1991 (with certain confidential portions omitted). 4 1) 10.26 License Agreement by and between the Company and Mark B. Mecikalski, M.D., dated June 1, 1990 (with certain confidential portions omitted). 1) + 10.52 Form of Employee Restricted Bonus Stock Agreement. + 10.54 Form of Indemnification Agreement between the Company and each of its directors. + 10.55 Form of Indemnification Agreement between the Company and each of its officers. 2) 10.58 Bitolterol Mesylate 0.2% Inhalation Solution and Tornalate-Registered Trademark- (Bitolterol Mesylate) Metered Dose Inhaler License Agreement by and between Sterling Winthrop, Inc. and Company, dated June 24, 1992 (with certain confidential portions omitted). 2) 10.59 Silicon Valley Bank Amendment to Loan Agreement regarding Real Estate Loan. 15) + 10.60 The Company's 1992 Stock Option Plan, as amended. 2) + 10.61 Form of Employee Non-Statutory Stock Option Agreement. 2) + 10.62 Form of Employee Incentive Stock Option Agreement. 2) + 10.63 Form of Officer Incentive Stock Option Agreement. 2) + 10.64 Form of Automatic Grant Non-Employee Director Agreements. 2) + 10.65 Employment Agreement - Cam L. Garner dated May 7, 1990. 4) 10.72 Form of Series W Warrant. 5) 10.73 Assignment Agreement by and between the Company and Mark B. Mecikalski, M.D., dated March 12, 1993 (with certain confidential portions omitted). 6) 10.80 Registration Rights Agreement by and between the Company and Elan International Services Limited, as successor in interest, dated April 17, 1994. 10.81 Letter Agreements between the Company and Elan International Services Limited, dated March 1, 1995 and September 3, 1996. 10.82 Form of Common Stock Purchase Warrant between the Company and Elan International Services Ltd. 7) 10.83 Product Licensing Agreement among Elan Corporation, plc, Dura Delivery Systems, Inc. and the Company (with certain confidential portions omitted). 5 7) 10.84 Protein and Peptide Development Agreement between Elan Corporation, plc and the Company (with certain confidential portions omitted). 7) 10.85 Technology Access Agreement between Elan Corporation, plc and the Company (with certain confidential portions omitted). 8) 10.86 Silicon Valley Bank Amendment to Loan Agreement regarding Real Estate Loan dated November 10, 1994. 9) 10.87 Business Combination Agreement dated March 15, 1995 between Quintex, Ltd., Health Script Pharmacy Services, Inc. and the Company (including Schedules B, C, D and E). 10) 10.88 Purchase Agreement dated June 14, 1995 between the Company and Abbott Laboratories, Ross Products Division, including list of Schedules and Exhibits thereto (with certain confidential portions omitted). 11) 10.89 Restated Certificate of Incorporation of DDSI. 11) 10.90 Agreement and Plan of Merger dated December 29, 1995 among the Company, DDSI and Safari Acquisition Corporation. 11) 10.91 Purchase Agreement by and among the Company, Spiros Corp. and the entities listed on the Schedule of Purchasers. 11) 10.92 Investors' Rights Agreement by and among the Company and the investors listed on Schedule A thereto, dated December 29, 1995. 11) 10.93 Stockholders' Agreement by and among Spiros Corp., the Company and the persons listed on Schedule A thereto, dated December 29, 1995. 11) 10.94 Form of Series S Warrant. 11) 10.95 Technology License Agreement by and among the Company, DDSI and Spiros Corp., dated December 29, 1995. 11) 10.96 Development and Management Agreement by and between the Company and Spiros Corp., dated December 29, 1995 (with certain confidential portions omitted). 11) 10.97 Interim Manufacturing and Marketing Agreement by and between the Company and Spiros Corp., dated December 29, 1995. 11) 10.98 Albuterol Purchase Option Agreement by and between the Company and Spiros Corp., dated December 29, 1995. 11) 10.99 Restated Certificate of Incorporation of Spiros Corp. 13) 10.100 Agreement for Purchase and Sale of Assets, dated June 17, 1996 between the Company and Procter & Gamble Pharmaceuticals, Inc. (with certain confidential portions omitted). 14) 10.101 Licensing Agreement dated August 21, 1996 between the Company and Eli Lilly and Company (with certain confidential portions omitted). 10.102 Manufacturing Agreement dated August 21, 1996 between the Company and Eli Lilly and Company (with certain confidential portions omitted). 11 Statements Re Computations of Net Income (Loss) Per Share. 13 1996 Annual Report to Shareholders (Only items incorporated by reference) 23 Independent Auditors' Consent. 24 Power of Attorney. 6 27 Financial Data Schedule. 1) Incorporated by reference to the Company's Registration Statement on Form S-1 (No. 33-44525), filed on December 13, 1991, as amended. 2) Incorporated by reference to the Company's Form 10-K, filed on March 31, 1993, as amended. 3) Incorporated by reference to the Company's Form 8-K, filed on September 15, 1993. 4) Incorporated by reference to the Company's Registration Statement on Form S-3 (No. 33-71798), filed on December 13, 1993. 5) Incorporated by reference to the Company's Form 10-K, filed on March 31, 1994, as amended. 6) Incorporated by reference to the Company's Form 10-Q, filed on August 5, 1994. 7) Incorporated by reference to the Company's Form 10-Q, filed on October 17, 1994, as amended. 8) Incorporated by reference to the Company's Form 10-K, filed on March 31, 1995. 9) Incorporated by reference to the Company's Form 8-K, filed on April 6, 1995. 10) Incorporated by reference to the Company's Form 8-K, filed on June 20, 1995, as amended. 11) Incorporated by reference to the Company's Form 8-K, filed on January 9, 1996, as amended. 13) Incorporated by reference to the Company's Form 8-K, filed on July 17, 1996. 14) Incorporated by reference to the Company's Form 8-K, filed on September 19, 1996, as amended. 15) Incorporated by reference to the Company's Form 10-Q, filed on August 14, 1996. + Management contract or compensation plan or arrangement. (b) REPORTS ON FORM 8-K. On December 20, 1996, the Company filed a Current Report on Form 8-K/A dated September 5, 1996 (which amended the Current Report of the Company on Form 8-K filed on September 19, 1996) transmitting a revised Exhibit 2.1, with certain confidential portions omitted. SUPPLEMENTAL INFORMATION No Annual Report to Shareholders or Proxy materials have been sent to shareholders as of the date of this report. The Annual Report to Shareholders and Proxy material will be furnished to the Company's shareholders subsequent to the filing of this report and the Company will furnish such material to the Securities and Exchange Commission at that time. 7 INDEPENDENT AUDITORS' REPORT To the Board of Directors and Shareholders of Dura Pharmaceuticals, Inc.: We have audited the accompanying consolidated balance sheets of Dura Pharmaceuticals, Inc. and subsidiaries as of December 31, 1995 and 1996, and the related consolidated statements of operations, shareholders' equity, and cash flows for each of the three years in the period ended December 31, 1996. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, such consolidated financial statements present fairly, in all material respects, the financial position of Dura Pharmaceuticals, Inc. and subsidiaries as of December 31, 1995 and 1996, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 1996 in conformity with generally accepted accounting principles. /s/ Deloitte & Touche LLP San Diego, California January 20, 1997 8 EX-23.2 2 EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in Registration Statement No. 333-10513 on Form S-8 and Registration Statement Nos. 33-71798, 33-99722 and 33-93914 on Form S-3 of Dura Pharmaceuticals, Inc. of our report dated January 20, 1997, incorporated by reference in this Annual Report on Form 10-K/A of Dura Pharmaceuticals, Inc. for the year ended December 31, 1996. /s/ DELOITTE & TOUCHE LLP San Diego, California March 24, 1997 -----END PRIVACY-ENHANCED MESSAGE-----