<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 17, 1996
REGISTRATION NO. 33-80362
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2 TO
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 OF OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
545 MIDDLEFIELD ROAD, SUITE 200
MENLO PARK, CA 94025
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, ZIP CODE)
1991 INCENTIVE STOCK PLAN
(FULL TITLE OF THE PLAN)
DAVID YNTEMA
CHIEF FINANCIAL OFFICER
VIVUS, INC.
545 MIDDLEFIELD ROAD, SUITE 200
MENLO PARK, CA 94025
(415) 325-5511
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT
FOR SERVICE)
Copy to:
ROBERT D. BROWNELL, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(415) 493-9300
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- - - -----------------------------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM
REGISTERED AMOUNT TO BE REGISTERED(1) PRICE PER SHARE AGGREGATE OFFERING PRICE AMOUNT OF REGISTRATION FEE
- - - -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (no par 1,700,000 $33.50 (2) $56,950,000 (3) $19,638
value per share)
- - - -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The shares covered by this Registration Statement represent shares of
Common Stock which have become available for issuance under the
Registrant's 1991 Incentive Stock Plan as a result of an amendment
approved by the shareholders at the Registrant's Annual Meeting held on
May 24, 1995 increasing the number of shares authorized for issuance
thereunder from 1,400,000 to 3,100,000.
(2) Calculated solely for the purpose of determining the registration fee on
the basis of the average of the bid and ask prices of the Registrant's
Common Stock as reported by the Nasdaq National Market System on December
11, 1996 in accordance with Rule 457(h)(1) and (c).
(3) Calculated in accordance with Rule 457(h) under the Act based on the
aggregate exercise price for options available for grant.
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STATEMENT UNDER GENERAL INSTRUCTION E REGISTRATION OF ADDITIONAL SECURITIES.
Unless as noted herein, the contents of the Registrant's Registration
Statement on Form S-8 (File No. 33-80362) are hereby incorporated by reference
into this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS.
5.1 Opinion of counsel as to legality of Securities being registered.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page 5).
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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
Post-Effective Amendment No. 2 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Menlo Park,
State of California, on this 17th day of December, 1996.
VIVUS, INC.
By: /s/ DAVID C. YNTEMA
----------------------------------------
David C. Yntema
Chief Financial Officer
By: /s/ LELAND F. WILSON
----------------------------------------
Leland F. Wilson
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Robert D. Brownell, David C.
Yntema and Leland F. Wilson, jointly and severally, his attorneys-in-fact, each
with the power of substitution, for him in any and all capacities, to sign any
amendments to this Post-Effective Amendment No. 2 to the 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 by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
<S> <C> <C>
/s/ LELAND F. WILSON President and Chief Executive Officer December 17, 1996
- - - -------------------------------- (Principal Executive Officer)
Leland F. Wilson
/s/ VIRGIL A. PLACE, M.D. Chairman of the Board of Directors December 17, 1996
- - - -------------------------------
Virgil A. Place, M.D.
/s/ DAVID C. YNTEMA Chief Financial Officer (Principal December 17, 1996
- - - ------------------------------- Financial and Accounting Officer)
David C. Yntema
/s/ RICHARD L. CASEY Director December 17, 1996
- - - -------------------------------
Richard L. Casey
/s/ SAMUEL D. COLELLA Director December 17, 1996
- - - -------------------------------
Samuel D. Colella
/s/ BRIAN H. DOVEY Director December 17, 1996
- - - -------------------------------
Brian H. Dovey
/s/ ELIZABETH A. FETTER Director December 17, 1996
- - - -------------------------------
Elizabeth A. Fetter
/s/ PETER BARTON HUTT Director December 17, 1996
- - - -------------------------------
Peter Barton Hutt
/s/ LINDA JENCKES Director December 17, 1996
- - - -------------------------------
Linda Jenckes
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Number Description of Document Page
5.1 Opinion of counsel as to legality of Securities being registered.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page 5).
<PAGE> 1
EXHIBIT 5.1
December 17, 1996
VIVUS, Inc.
545 Middlefield Road, Suite 200
Menlo Park, CA 94025
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Post-Effective Amendment No. 2 to the
Registration Statement on Form S-8 (the "Registration Statement") to be filed by
VIVUS, Inc., a Delaware corporation (the "Registrant" or "you"), with the
Securities and Exchange Commission on or about December 17, 1996, in connection
with the registration under the Securities Act of 1933, as amended, of shares of
your Common Stock, no par value (the "Shares"), reserved for issuance pursuant
to the 1991 Incentive Stock Plan, as amended (the "Plan"). As your legal counsel
in connection with this transaction, we have reviewed the proceedings taken by
you in connection with the issuance and sale of the Shares pursuant to the Plan.
It is our opinion that, when issued and sold in the manner
described in the Plan and pursuant to the agreements that accompany each grant
under the Plan, the Shares 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 subsequent amendment thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Post-Effective Amendment No. 2 to the
Registration Statement on Form S-8 (No. 33-80362) pertaining to the 1991
Incentive Stock Plan of VIVUS, Inc., of our report dated January 25, 1996
included in or made part of this Registration Statement for VIVUS, Inc.
Arthur Andersen LLP
Oakland, California
December 17, 1996
