As filed with the Securities and Exchange Commission on April 3, 2003
Registration No. 333-_______
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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 94-3136179
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
2834
(PRIMARY STANDARD INDUSTRIAL
CLASSIFICATION CODE NUMBER)
1172 CASTRO STREET
MOUNTAIN VIEW, CA 94040
(650) 934-5200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
2001 STOCK OPTION PLAN
(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, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
MARIO M. ROSATI, ESQ.
MARK J. CASPER, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: AS SOON AS
PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON
A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, CHECK THE FOLLOWING BOX. [X]
CALCULATION OF REGISTRATION FEE
========================================= ========================= ====================== ===================== ===================
PROPOSED
MAXIMUM PROPOSED
TITLE OF EACH CLASS OF SECURITIES TO AMOUNT OFFERING MAXIMUM
- ----------------------------------------- TO BE PRICE AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
- ----------------------------------------- ------------------------- ---------------------- --------------------- -------------------
- ----------------------------------------- ------------------------- ---------------------- --------------------- -------------------
Common Stock, $0.001 par value, to be 824,979 Shares $3.91 $3,225,667.89 $260.96= Proposed
issued under the 2001 Stock Option Maximum Aggregate
Plan(1) Offering Price x
$0.00008090
($80.90 per $1
million)
- ----------------------------------------- ------------------------- ---------------------- --------------------- -------------------
TOTAL REGISTRATION FEES: $ 260.96
========================================= ========================= ====================== ===================== ===================
(1) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee of shares reserved for future
issuance under the Registrant's 2001 Stock Option Plan. The computation is
based on the average of the high and low price of the Registrant's Common
Stock as reported on the Nasdaq National Market on April 1, 2003 because
the price at which the options to be granted in the future may be exercised
is not currently determinable.
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STATEMENT UNDER GENERAL INSTRUCTION E - REGISTRATION OF
ADDITIONAL SECURITIES
This Registration Statement registers additional shares of the Registrant's
Common Stock to be issued pursuant to the Registrant's 2001 Stock Option Plan.
Accordingly, the contents of the previous Registration Statements on Form S-8
filed by the Registrant with the Securities and Exchange Commission on November
15, 2001 (File No. 333-73394), or the Previous Form S-8, including periodic
reports that the Registrant filed after the Previous Form S-8 to maintain
current information about the Registrant, are incorporated by reference into
this Registration Statement pursuant to General Instruction E of Form S-8. The
reports the Registrant has most recently filed with the Securities and Exchange
Commission are listed below:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2002, as filed on March 17, 2003 pursuant to Section
13(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(b) Proxy Statement filed as of April 24, 2002 in connection with the
Annual Meeting of Stockholders held on June 5, 2002.
(c) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 2002, as filed pursuant to Section 13 (a) of
the Exchange Act on May 3, 2002.
(d) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 2002, as filed pursuant to Section 13 (a) of the
Exchange Act on August 9, 2002.
(e) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 2002, as filed pursuant to Section 13 (a)
of the Exchange Act on November 8, 2002.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS.
The Exhibits listed on the accompanying Index to Exhibits are filed as part
hereof, or incorporated by reference into, this Registration Statement. (See
Exhibit Index below).
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 April 3, 2003.
VIVUS, INC.
By: /s/ Richard Walliser
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Richard Walliser
Vice President and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Leland F. Wilson and Richard Walliser,
jointly and severally, their attorneys-in-fact, each with the power of
substitution, for them in any and all capacities, to sign any 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
attorneys-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 by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Leland F. Wilson Chief Executive Officer and April 3, 2003
- -------------------------------------- President (Principal Executive
Leland F. Wilson Officer)
/s/ Virgil A. Place Chairman of the Board, Chief April 3, 2003
- -------------------------------------- Scientific Officer and Director
Virgil A. Place
/s/ Richard Walliser Vice President of Finance and April 3, 2003
- -------------------------------------- Chief Financial Officer (Principal
Richard Walliser Financial and Accounting Officer)
/s/ Graham Strachan Director April 3, 2003
- --------------------------------------
Graham Strachan
/s/ Mark B. Logan Director April 3, 2003
- --------------------------------------
Mark B. Logan
/s/ Linda M. Dairiki Shortliffe, M.D. Director April 3, 2003
- --------------------------------------
Linda M. Dairiki Shortliffe, M.D.
/s/ Mario M. Rosati Director April 3, 2003
- --------------------------------------
Mario M. Rosati
INDEX TO EXHIBITS
EXHIBIT NUMBER EXHIBIT DOCUMENT
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, as to the legality of securities being registered
(Counsel to the Registrant)
*10.44 2001 Stock Option Plan
23.1 Consent of KPMG LLP, Independent Auditors
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1 hereto)
24.1 Power of Attorney (see signature page)
* Incorporated by reference to the same number exhibit filed with Registrant's
Registration Statement on Form S-8 filed as of November 15, 2001 (File No.
333-73394).
EXHIBIT 5.1
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[LETTERHEAD OF WILSON SONSINI GOODRICH & ROSATI]
April 3, 2003
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 April 3, 2003 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of recently authorized shares to be issued
under the 2001 Stock Option Plan (as to 824,979 shares) (the "Plan" and the
"Shares" as appropriate). As your counsel in connection with this transaction,
we have examined the proceedings taken and are familiar with the proceedings
proposed to be taken by you in connection with the issuance and sale of the
Shares pursuant to the Plan.
It is our opinion that the Shares, when issued and sold in the manner
described in the Plan and pursuant to the agreement that accompanies each grant
under the Plan, will be legally and validly issued, fully-paid and
non-assessable.
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 appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
EXHIBIT 23.1
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CONSENT OF KPMG LLP, INDEPENDENT AUDITORS
The Board of Directors and Stockholders
VIVUS,
Inc.:
We consent to the use of our report dated January 17, 2003, with respect to the
consolidated balance sheet of VIVUS, Inc. and subsidiaries as of December 31,
2002, and the related consolidated statements of operations and other
comprehensive (loss) income, stockholders' equity and cash flows for the year
ended December 31, 2002, and the related financial statement schedule
incorporated herein by reference.
/s/ KPMG, LLP
San Francisco, California
April 3, 2003