As filed with the Securities and Exchange Commission on April 25, 2007
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
VIVUS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE |
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94-3136179 |
(State or other
jurisdiction of |
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(I.R.S. Employer |
1172 CASTRO STREET
MOUNTAIN VIEW, CA 94040
(Address of principal executive offices)
2001 STOCK OPTION PLAN, AS AMENDED
(Full title of the plan)
Leland F. Wilson
President and Chief Executive Officer
VIVUS, Inc.
1172 Castro Street
Mountain View, CA 94040
(650) 934-5200
(Name, address, and telephone number, including area code, of agent for service)
Copy to:
Mario M. Rosati, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
(650) 493-9300
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to |
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Amount to be |
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Proposed Maximum |
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Proposed Maximum |
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Amount of |
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Common Stock, par value $0.001 per share (1) |
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1,000,000 shares |
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$ |
5.33 |
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$ |
5,330,000.00 |
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$ |
163.63 |
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(1) Shares of Common Stock of VIVUS, Inc. to be registered under the 2001 Stock Option Plan, as amended.
(2) Estimated in accordance with Rules 457(c) and 457(h) under the Securities Act of 1933 solely for the purpose of calculating the registration fee. In accordance with Rules 457(c) and 457(h), the computation uses $5.33 per share price, which represents the average of the high and low prices of the Common Stock as reported on the NASDAQ Global Market on April 20, 2007.
VIVUS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and information previously filed with the Securities and Exchange Commission (the SEC) by VIVUS, Inc. (the Registrant) are hereby incorporated by reference in this Registration Statement:
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the filing of this Registration Statement, and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Mario M. Rosati, a member of the law firm Wilson Sonsini Goodrich & Rosati (WSGR) and a director and the Secretary of the Registrant, beneficially owned as of April 1, 2007, an aggregate of 5,892 shares of the Registrants Common Stock. Mr. Rosati also holds options to purchase 130,000 shares of the Registrants Common Stock. WSGR is giving an opinion upon the validity of the shares being registered.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the Delaware Law) authorizes a court to award, or a corporations Board of Directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the Securities Act). Article VII of the Registrants Certificate of Incorporation and Article VI of the Registrants Bylaws provide for indemnification of the Registrants directors and officers and authorize indemnification of employees and
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other agents to the maximum extent permitted by Delaware Law. In addition, the Registrant has entered into Indemnification Agreements with its officers and directors and certain stockholders.
Insofar as indemnification by Registrant for liabilities arising under the Securities Act may be permitted to its directors, officers and controlling persons pursuant to the provisions referenced above or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by Registrant of expenses incurred or paid by one of Registrants directors, officers, or controlling persons in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, Registrant will, unless in the opinion of Registrants counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number |
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Description |
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4.1 |
(1) |
2001 Stock Option Plan, as amended. |
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5.1 |
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Opinion of Wilson Sonsini Goodrich & Rosati, P.C. |
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23.1 |
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Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1). |
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23.2 |
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Consent of Odenberg, Ullakko, Muranishi & Co. LLP, Independent Registered Public Accounting Firm. |
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23.3 |
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Consent of KPMG LLP, Independent Registered Public Accounting Firm. |
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24.1 |
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Power of Attorney (see page II-4). |
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(1) Incorporated by reference to the Registrants Form 8-K filed with the SEC on July 13, 2006.
Item 9. Undertakings.
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Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement.
(4) That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, the Registrant undertakes that in a primary offering of securities of the Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) any preliminary prospectus or prospectus of the Registrant relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating to the offering prepared by or on behalf of the Registrant or used or referred to by the Registrant; (iii) the portion of any other free writing prospectus relating to the offering containing material information about the Registrant or its securities provided by or on behalf of the Registrant; and (iv) any other communication that is an offer in the offering made by the Registrant to the purchaser.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mountain View, State of California, on this 25th day of April, 2007.
VIVUS, INC. |
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By: |
/s/ Timothy E. Morris |
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Timothy E. Morris |
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Vice President, Finance and Chief Financial Officer |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, jointly and severally, Leland F. Wilson and Timothy E. Morris, and each one of them individually, as his attorneys-in-fact, each with the power of substitution, for him in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorney-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
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Title |
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Date |
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/s/ Leland F. Wilson |
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President and Chief Executive Officer |
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April 23, 2007 |
Leland F. Wilson |
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(Principal Executive Officer) and Director |
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/s/ Timothy E. Morris |
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Vice President of Finance and Chief |
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April 23, 2007 |
Timothy E. Morris |
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Financial Officer (Principal Financial Officer) |
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/s/ Lee B. Perry |
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Vice President and Chief Accounting Officer |
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April 23, 2007 |
Lee B. Perry |
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(Principal Accounting Officer) |
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/s/ Virgil A. Place |
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Chairman of the Board and |
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April 23, 2007 |
Virgil A. Place |
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Chief Scientific Officer |
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/s/ Mark B. Logan |
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Director |
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April 23, 2007 |
Mark B. Logan |
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/s/ Mario M. Rosati |
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Director |
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April 20, 2007 |
Mario M. Rosati |
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/s/ Linda M. Dairiki Shortliffe |
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Director |
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April 23, 2007 |
Linda M. Dairiki Shortliffe |
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/s/ Graham Strachan |
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Director |
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April 23, 2007 |
Graham Strachan |
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INDEX TO EXHIBITS
Exhibit Number |
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Description |
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4.1 |
(1) |
2001 Stock Option Plan, as amended. |
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5.1 |
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Opinion of Wilson Sonsini Goodrich & Rosati, P.C. |
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23.1 |
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Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1). |
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23.2 |
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Consent of Odenberg, Ullakko, Muranishi & Co. LLP, Independent Registered Public Accounting Firm |
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23.3 |
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Consent of KPMG LLP, Independent Registered Public Accounting Firm |
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24.1 |
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Power of Attorney (see page II-4). |
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(1) Incorporated by reference to exhibit 10.1 filed with the Registrants Form 8-K filed on July 13, 2006.
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