-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BA82QCG29gKdBFQbqx57S9cUE2CrPup4dJo0+qqQ/41iahS6vADf6z5aCcQZkCIR ASqnBkh20DlH6f+z5M8now== 0000950124-02-003033.txt : 20020924 0000950124-02-003033.hdr.sgml : 20020924 20020924164733 ACCESSION NUMBER: 0000950124-02-003033 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20020924 EFFECTIVENESS DATE: 20020924 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ESPERION THERAPEUTICS INC/MI CENTRAL INDEX KEY: 0001066745 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 383419139 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-100053 FILM NUMBER: 02771244 BUSINESS ADDRESS: STREET 1: 3621 S STATE STREET 695KMS PLACE STREET 2: 734-332-0506 CITY: ANN ARBOR STATE: MI ZIP: 48108 MAIL ADDRESS: STREET 1: 3621 STATE STREET STREET 2: 695 KMS PLACE CITY: ANN ARBOR STATE: MI ZIP: 48108 S-8 1 k71976sv8.txt FORM S-8 As filed with the Securities and Exchange Commission on September 24, 2002 Registration No. 333- ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------------- ESPERION THERAPEUTICS, INC. (Exact name of registrant as specified in its charter) DELAWARE 38-3419139 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 3621 SOUTH STATE STREET 695 KMS PLACE 48108 ANN ARBOR, MI (Address of principal executive offices) (Zip code) ESPERION THERAPEUTICS, INC. 2000 EQUITY COMPENSATION PLAN, AS AMENDED AND RESTATED (Full title of the plan) ROGER S. NEWTON, PH.D. PRESIDENT AND CHIEF EXECUTIVE OFFICER ESPERION THERAPEUTICS, INC. 3621 SOUTH STATE STREET 695 KMS PLACE ANN ARBOR, MI 48108 (Name and address of agent for service) (734) 332-0506 (Telephone number, including area code, of agent for service) ---------------------- Copy of all communications to: LINDA L. GRIGGS, ESQ. MORGAN, LEWIS & BOCKIUS LLP 1111 PENNSYLVANIA AVENUE, N.W. WASHINGTON, D.C. 20004 (202) 739-3000 CALCULATION OF REGISTRATION FEE
==================================================================================================================================== Title of securities Amount to be Proposed maximum Proposed maximum Amount of to be registered Registered (1) offering price aggregate registration fee (2) per share (2) offering price (2) - ------------------------------------------------------------------------------------------------------------------------------------ Common Stock, $0.001 par 1,369,000 $ 5.75 $ 7,871,750 $ 724.20 value ====================================================================================================================================
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the "Securities Act"), the number of shares of Common Stock registered shall be adjusted to include any additional shares which may become issuable as a result of stock splits, stock dividends or similar transactions in accordance with the anti-dilution provisions of the Esperion Therapeutics, Inc. 2000 Equity Compensation Plan. (2) Estimated pursuant to Paragraphs (c) and (h) of Rule 457 under the Securities Act solely for the purpose of calculating the registration fee, based upon the average of the high and low sales prices per share of the Common Stock on September 20, 2002, as reported on The Nasdaq National Market. ================================================================================ EXPLANATORY NOTE This registration statement on Form S-8 is filed by Esperion Therapeutics, Inc. pursuant to General Instruction E to Form S-8 to register an additional 1,369,000 shares of Common Stock which may be offered and sold to participants under the Esperion Therapeutics, Inc. 2000 Equity Compensation Plan (the "Plan"), as amended and restated. The contents of registration statements on Form S-8, file numbers 333-69828 and 333-55080, previously filed by Esperion and relating to the registration of shares of Common Stock for issuance under the Plan, including as it has been amended and restated, are hereby incorporated by reference to this registration statement in accordance with General Instruction E to Form S-8. ITEM 8. EXHIBITS. EXHIBIT NUMBERS EXHIBIT 5 Opinion of Morgan, Lewis & Bockius LLP 23 Consent of Morgan, Lewis & Bockius LLP (included as part of Exhibit 5) 24 Power of Attorney (included as part of the signature page) Our annual report on Form 10-K for the fiscal year ended December 31, 2001 contains our consolidated financial statements, which were audited by Arthur Andersen LLP ("Andersen"), and Andersen's report dated January 18, 2002 ("Andersen's Report") with respect to those consolidated financial statements. After making reasonable efforts, we have been unable to obtain Andersen's consent to incorporate into this registration statement Andersen's Report. Under these circumstances, Rule 437(a) under the Securities Act permits us to file this registration statement without such consent. The absence of such consent means that investors will not be able to assert any claims they may have against Andersen under Section 11 of the Securities Act relating to the consolidated financial statements covered by Andersen's Report and incorporated by reference into 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 Ann Arbor, State of Michigan on September 24, 2002. ESPERION THERAPEUTICS, INC. By: /s/ Roger S. Newton -------------------------- Name: Roger S. Newton, Ph.D. Title: President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on September 24, 2002. Each person whose signature appears below hereby appoints Roger S. Newton, Timothy M. Mayleben and any other person appointed as attorney-in-fact, or any of them as his or her true and lawful attorney-in-fact, with full power of substitution and resubstitution, with the authority to execute in the name of each such person and to file with the Securities and Exchange Commission, together with any exhibits and other documents, any and all amendments (including post-effective amendments) to this registration statement and any registration statements filed pursuant to General Instruction E to Form S-8 in respect of this registration statement and any and all amendments thereto (including post-effective amendments) necessary or advisable to enable the registrant to comply with the Securities Act of 1933 and any rules, regulations and requirements of the Securities and Exchange Commission in respect thereof, which amendments or registration statements may make such other changes in the registration statement as the aforesaid attorney-in-fact executing the same deems appropriate. Name Title /s/ Roger S. Newton President, Chief Executive Officer, and - ----------------------------- Director (Principal Executive Officer) Roger S. Newton /s/ Timothy M. Mayleben Chief Operating Officer and Chief - ----------------------------- Financial Officer (Principal Financial Timothy M. Mayleben Officer) /s/ Frank E. Thomas Vice President, Finance and Investor - --------------------------------- Relations (Principal Accounting Frank E. Thomas Officer) /s/ David I. Scheer Chairman - --------------------------------- David I. Scheer /s/ Susan B. Bayh Director - --------------------------------- Susan B. Bayh /s/ Henry E. Blair Director - --------------------------------- Henry E. Blair /s/ Ronald M. Cresswell Director - --------------------------------- Ronald M. Cresswell /s/ Antonio M. Gotto, Jr. Director - --------------------------------- Antonio M. Gotto, Jr. /s/ Eileen M. More Director - --------------------------------- Eileen M. More INDEX TO EXHIBITS EXHIBIT NUMBERS EXHIBIT 5 Opinion of Morgan, Lewis & Bockius LLP 23 Consent of Morgan, Lewis & Bockius LLP (included as part of Exhibit 5) 24 Power of Attorney (included as part of the signature page) Our annual report on Form 10-K for the fiscal year ended December 31, 2001 contains our consolidated financial statements, which were audited by Arthur Andersen LLP ("Andersen"), and Andersen's report dated January 18, 2002 ("Andersen's Report") with respect to those consolidated financial statements. After making reasonable efforts, we have been unable to obtain Andersen's consent to incorporate into this registration statement Andersen's Report. Under these circumstances, Rule 437(a) under the Securities Act permits us to file this registration statement without such consent. The absence of such consent means that investors will not be able to assert any claims they may have against Andersen under Section 11 of the Securities Act relating to the consolidated financial statements covered by Andersen's Report and incorporated by reference into this registration statement. EX-5 3 k71976exv5.txt OPINION OF MORGAN, LEWIS & BOCKIUS LLP EXHIBIT 5 September 24, 2002 Esperion Therapeutics, Inc. 3621 South State Street 695 KMS Place Ann Arbor, MI 48108 Ladies and Gentlemen: We have acted as counsel to Esperion Therapeutics, Inc., a Delaware corporation (the "Company"), in connection with the preparation of a registration statement on Form S-8 (the "Registration Statement") to be filed pursuant to the Securities Act of 1933, as amended (the "Act"), and relating to 1,369,000 shares of common stock of the Company, par value $0.001 per share (the "Shares"). The Shares covered by the Registration Statement will be issued pursuant to the Esperion Therapeutics, Inc. 2000 Equity Compensation Plan, as Amended and Restated (the "Plan"). We have examined the Registration Statement and such corporate records, statutes and other documents as we have deemed relevant in rendering this opinion. As to matters of fact, we have relied on representations of officers of the Company. In our examination, we have assumed the genuineness of documents submitted to us as originals and the conformity with originals of documents submitted to us as copies thereof. Based on the foregoing, it is our opinion that, when issued and delivered in accordance with the terms and conditions of the Plan, the Shares will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Securities and Exchange Commission thereunder. Very truly yours, MORGAN, LEWIS & BOCKIUS LLP -----END PRIVACY-ENHANCED MESSAGE-----