As filed with the Securities and Exchange Commission on August 1, 2011
Registration No. 333-
UNITED STATES
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)
1994 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Leland F. Wilson
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:
John Slebir, Esq.
General Counsel
VIVUS, Inc.
1172 Castro Street
Mountain View, CA 94040
(650) 934-5200
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer, and smaller reporting company in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (check one):
Large accelerated filer x |
Accelerated Filer o |
Non-accelerated filer o |
Smaller Reporting Company o |
(Do not check if a smaller reporting company) |
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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 |
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600,000 shares |
(1) |
$ |
8.08(2) |
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$ |
4,848,000.00 |
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$ |
563.00 |
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Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement shall also cover any additional securities of Common Stock of VIVUS, Inc. (the Registrant) that became issuable under the Registrants 1994 Employee Stock Purchase Plan (the Plan) set forth herein by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number or outstanding shares of Common Stock.
(1) Represents shares of Common Stock which have become available for issuance under the Plan as a result of an amendment approved by the board of directors on April 29, 2011 and by the stockholders at the Registrants Annual Meeting held on June 17, 2011 increasing the number of shares authorized for issuance thereunder by an aggregate of 600,000 shares.
(2) Estimated in accordance with Rule 457(c) and Rule 457(h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of $8.08 per share, which represents the average of the high and low prices reported on the NASDAQ Global Market on July 27, 2011.
Explanatory Note
This Registration Statement registers additional shares of Common Stock of the Registrant to be issued pursuant to the Plan. Unless noted herein, the contents of the previous Registration Statements on Form S-8 filed by the Registrant with the Securities and Exchange Commission on (i) June 14, 1994 (File No. 033-80362), (ii) June 24, 1996 (File No. 033-75698), (iii) March 21, 2001 (File No. 333-57374) and (iv) July 14, 2003 (File No. 333-107006) (collectively, the Previous Form S-8s), including periodic reports that the Registrant filed after the Previous Form S-8s to maintain current information about the Registrant, are incorporated by reference into this Registration Statement pursuant to General Instruction E of Form S-8.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 8. Exhibits.
Exhibit |
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Description |
5.1 |
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Opinion of Hogan Lovells US LLP |
10.1 |
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1994 Employee Stock Purchase Plan, as amended (incorporated by reference to the current report on Form 8-K filed on July 29, 2011) |
23.1 |
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Consent of Odenberg, Ullakko, Muranishi & Co. LLP, Independent Registered Public Accounting Firm |
23.2 |
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Consent of Hogan Lovells US LLP (included in Exhibit 5.1) |
24.1 |
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Power of Attorney (see signature page hereto) |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 1st day of August, 2011.
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VIVUS, INC. | |
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By: |
/s/ Timothy E. Morris |
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Timothy E. Morris |
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Senior Vice President, Finance and Chief Financial Officer |
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, as amended, 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.
Signature |
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Title |
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Date |
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/s/ Leland F. Wilson |
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Chief Executive Officer and Director |
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August 1, 2011 |
Leland F. Wilson |
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(Principal Executive Officer) |
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/s/ Timothy E. Morris |
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Senior Vice President, Finance and Chief Financial Officer |
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August 1, 2011 |
Timothy E. Morris |
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(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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August 1, 2011 |
Lee B. Perry |
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(Principal Accounting Officer) |
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/s/ Peter Y. Tam |
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President and Director |
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August 1, 2011 |
Peter Y. Tam |
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/s/ Mark B. Logan |
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Chairman of the Board |
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August 1, 2011 |
Mark B. Logan |
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/s/ Charles J. Casamento |
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Director |
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August 1, 2011 |
Charles J. Casamento |
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/s/ Linda M. Dairiki Shortliffe, M.D. |
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Director |
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August 1, 2011 |
Linda M. Dairiki Shortliffe, M. D. |
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INDEX TO EXHIBITS
Exhibit |
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Description |
5.1 |
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Opinion of Hogan Lovells US LLP |
10.1 |
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1994 Employee Stock Purchase Plan, as amended (incorporated by reference to the current report on Form 8-K filed on July 29, 2011) |
23.1 |
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Consent of Odenberg, Ullakko, Muranishi & Co. LLP, Independent Registered Public Accounting Firm |
23.2 |
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Consent of Hogan Lovells US LLP (included in Exhibit 5.1) |
24.1 |
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Power of Attorney (see signature page hereto) |