As filed with the Securities and Exchange Commission on February 16, 2010
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
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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
Chief Executive Officer
VIVUS, Inc.
1172 Castro Street
Mountain View, CA 94040
(650) 934-5200
(Name , address, and telephone number, including are 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 Exchange Act:
Large accelerated filer x |
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Accelerated Filer o |
Non-accelerated filer o |
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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 $0.001 per share |
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1,000,000 shares |
(1) |
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8.45 |
(2) |
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8,450,000 |
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$ |
602.49 |
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(1) Represents shares of Common Stock that were automatically added to the shares reserved for issuance under the VIVUS, Inc. 2001 Stock Option Plan, as amended (the 2001 Plan), on January 1, 2010 pursuant to an evergreen provision contained in the 2001 Plan. Pursuant to such provision, on January 1, from 2003 until 2011, the number of shares authorized for issuance under the 2001 Plan is automatically increased by a number equal to the lesser of: 1,000,000 shares of Common Stock; two and one-half percent of the number of shares of Common Stock outstanding on such date; or a lesser number of shares of Common Stock that may be determined each year by the Registrants board of directors.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of $8.45 per share, which represents the average of the high and low prices reported on the NASDAQ Global Market on February 12, 2010.
Statement Under General Instruction E
Registration of Additional Securities
This Registration Statement registers additional shares of VIVUS, Inc.s Common Stock to be issued pursuant to the VIVUS, Inc. 2001 Stock Option Plan, as amended. Unless noted herein, the contents of VIVUS, Inc.s Form S-8 Registration Statement filed with the Securities and Exchange Commission (the Commission) on November 15, 2001 (File No. 333-73394) are incorporated by reference into this Registration Statement.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and information previously filed with the Commission by VIVUS, Inc. (the Registrant) are hereby incorporated by reference in this Registration Statement:
(c) The Registrants Current Reports on Form 8-K filed with the Commission on January 7, 2009, January 13, 2009, January 29, 2009, February 3, 2009, February 11, 2009, March 9, 2009, March 11, 2009, March 19, 2009, April 9, 2009, May 11, 2009, July 15, 2009, August 11, 2009, August 17, 2009, September 3, 2009, September 8, 2009, September 9, 2009 (both of the Current Reports on Form 8-K filed on that day), September 14, 2009, September 18, 2009, October 26, 2009, November 2, 2009, November 3, 2009, November 6, 2009, November 13, 2009, November 17, 2009, November 18, 2009, November 24, 2009, December 29, 2009, January 7, 2010, January 12, 2010 and January 26, 2010 (except that any reports or portions thereof which are furnished and not filed shall not be deemed incorporated by reference in this Registration Statement).
(d) The description of the Registrants Common Stock contained in the Registrants Registration Statement on Form 8-A filed with the Commission on February 24, 1994 registering such shares pursuant to Section 12 of the Exchange Act, including any amendment or report updating such descriptions.
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 5. Interests of Named Experts and Counsel.
John Slebir, an attorney at Wilson Sonsini Goodrich & Rosati (WSGR), also serves as the Registrants General Counsel and Assistant Secretary. Mr. Slebir holds an option to purchase 10,000 shares of the Registrants Common Stock. WSGR is giving an opinion upon the validity of the shares being registered.
Item 8. Exhibits.
Exhibit
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Description |
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4.1 |
(1) |
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2001 Stock Option Plan, as amended. |
5.1 |
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Opinion of Wilson Sonsini Goodrich & Rosati, P.C. |
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 Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1). |
24.1 |
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Power of Attorney (see page II-5). |
(1) Incorporated by reference to exhibit 10.1 filed with the Registrants Current Report on Form 8-K filed on July 13, 2006.
Item 9. Undertakings.
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 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.
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 16th day of February, 2010.
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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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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, 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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February 16, 2010 |
Leland F. Wilson |
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(Principal Executive Officer) |
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/s/ Timothy E. Morris |
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Vice President of Finance and Chief Financial Officer |
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February 16, 2010 |
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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February 16, 2010 |
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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February 16, 2010 |
Peter Y. Tam |
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/s/ Mark B. Logan |
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Chairman of the Board |
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February 16, 2010 |
Mark B. Logan |
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/s/ Charles J. Casamento |
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Director |
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February 16, 2010 |
Charles J. Casamento |
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Signature |
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Title |
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Date |
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/s/ Virgil A. Place |
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Director |
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February 16, 2010 |
Virgil A. Place |
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/s/ Linda M. Dairiki Shortliffe, M.D. |
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Director |
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February 16, 2010 |
Linda M. Dairiki Shortliffe, M. D. |
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/s/ Graham Strachan |
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Director |
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February 15, 2010 |
Graham Strachan |
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INDEX TO EXHIBITS
Exhibit
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Description |
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4.1 |
(1) |
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2001 Stock Option Plan, as amended. |
5.1 |
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Opinion of Wilson Sonsini Goodrich & Rosati, P.C. |
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 Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1). |
24.1 |
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Power of Attorney (see page II-5). |
(1) Incorporated by reference to exhibit 10.1 filed with the Registrants Current Report on Form 8-K filed on July 13, 2006.
Exhibit 5.1
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
February 16, 2010
VIVUS, Inc.
1172 Castro Street
Mountain View, CA 94040
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about February 16, 2010 (the Registration Statement) in connection with the registration under the Securities Act of 1933, as amended, of 1,000,000 shares of your Common Stock (the Shares) reserved for issuance under the 2001 Stock Option Plan, as amended (the Stock Plan). As your legal counsel, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the sale and issuance of the Shares under the Stock Plan.
It is our opinion that, when issued and sold in the manner referred to in the Stock Plan and pursuant to the standard agreements which accompany any sale under the Stock Plan, the Shares will be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever it appears in the Registration Statement and any amendment thereto.
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Very truly yours, |
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/s/ WILSON SONSINI GOODRICH & ROSATI |
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WILSON SONSINI GOODRICH & ROSATI |
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Professional Corporation |
Exhibit 23.1
CONSENT OF ODENBERG, ULLAKKO, MURANISHI & CO. LLP
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to the 2001 Stock Option Plan, as amended, of our reports dated March 9, 2009 relating to the consolidated financial statements and the effectiveness of internal control over financial reporting of VIVUS, Inc. included in its Annual Report on Form 10-K for the year ended December 31, 2008.
/s/ Odenberg, Ullakko, Muranishi & Co. LLP
Odenberg, Ullakko, Muranishi & Co. LLP
San Francisco, California
February 16, 2010