As filed with the Securities and Exchange Commission on February 27, 2020
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 | | 26-1870780 |
(State or Other Jurisdiction
of Incorporation or Organization) | | (I.R.S. Employer Identification No.) |
Esperion Therapeutics, Inc.
3891 Ranchero Drive, Suite 150
Ann Arbor, MI 48108
(Address of Principal Executive Offices)
Amended and Restated Esperion Therapeutics, Inc. 2013 Stock Option and Incentive Plan
Esperion Therapeutics, Inc. 2017 Inducement Equity Plan
(Full Title of the Plans)
Tim M. Mayleben
President and Chief Executive Officer
Esperion Therapeutics, Inc.
3891 Ranchero Drive, Suite 150
Ann Arbor, MI 48108
(Name and Address of Agent For Service)
(734) 887-3903
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Mitchell S. Bloom, Esq.
Arthur R. McGivern, Esq.
Goodwin Procter LLP
100 Northern Avenue
Boston, Massachusetts 02210
(617) 570-1000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer x | | Accelerated filer ¨ |
| Non-accelerated filer ¨ | | Smaller reporting company ¨ |
| | | Emerging growth company ¨ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
Title of Securities
to be Registered | | Amount
to be
Registered (1) | | | Proposed Maximum
Offering Price
per Share (2) | | | Proposed Maximum
Aggregate
Offering Price | | | Amount of
Registration
Fee | |
| Common Stock, $0.001 par value per share | | 687,447 shares | (3) | | $ | 68.75 | | | $ | 47,261,981 | | | $ | 6,135 | |
| Common Stock, $0.001 par value per share | | 400,000 shares | (4) | | $ | 68.75 | | | $ | 27,500,000 | | | $ | 3,570 | |
| Total | | 1,087,447 shares | | | | | | | $ | 74,761,981 | | | $ | 9,705 | |
| (1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of common stock which become issuable under the above-named plans by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant’s outstanding shares of common stock. |
| (2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act, and based on the average of the high and low sale prices of the Registrant’s common stock, as quoted on the Nasdaq Global Market, on February 20, 2020. |
| (3) | Represents an automatic increase to the number of shares available for issuance under the Plan, effective January 1, 2020. Shares available for issuance under the Plan were previously registered on registration statements on Form S-8 filed with the Securities and Exchange Commission on December 21, 2018 (Registration No. 333-228994), February 20, 2018 (Registration No. 333-223105), February 22, 2017 (Registration No. 333-216169), December 22, 2015 (Registration No. 333-208702), August 6, 2015 (Registration No. 333-206180), January 6, 2015 (Registration No. 333-201378), March 13, 2014 (Registration No. 333-194536), and July 1, 2013 (Registration No. 333-189738). |
| (4) | Consists of 400,000 shares issuable under the 2017 Inducement Equity Plan, pursuant to the terms of such plan. |
EXPLANATORY NOTE
This Registration Statement on Form S-8 registers additional shares of Common Stock under the Registrant’s Amended and Restated 2013 Stock Option and Incentive Plan (the “Option Plan”). The number of shares of Common Stock reserved and available for issuance under the Option Plan is subject to an automatic annual increase on each January 1, beginning in 2016, by an amount equal to two and a half percent of the number of shares of Common Stock issued and outstanding on the immediately preceding December 31 or such lesser number of shares of Common Stock as determined by the Administrator (as defined in the Option Plan). Accordingly, on January 1, 2020, the number of shares of Common Stock reserved and available for issuance under the Plan increased by 687,447 shares. This Registration Statement registers these additional 687,447 shares of Common Stock. This Registration Statement on Form S-8 also registers 400,000 additional shares of Common Stock under the Registrant’s 2017 Inducement Equity Plan (the “Inducement Plan”). On November 20, 2019, the board of directors of the Registrant approved an amendment to the Inducement Plan, pursuant to which the number of shares of Common Stock reserved and available for issuance under the Inducement Plan increased by 400,000 shares. The additional shares are of the same class as other securities relating to the Plan for which the Registrant’s registration statements filed onForm S-8 (Registration No.333-218084) on May 18, 2017, and onForm S-8 (Registration No. 333-189738) on July 1, 2013, are effective. The information contained in the Registrant’s registration statements on Form S-8 (Registration No.333-218084) and Form S-8 (Registration No. 333-189738) is hereby incorporated by reference pursuant to General Instruction E, except for “Item 8. Exhibits.”
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
See the Exhibit Index on the page immediately preceding the exhibits for a list of exhibits filed as part of this registration statement on Form S-8, which Exhibit Index is incorporated herein by reference.
EXHIBIT INDEX
| Exhibit No. | | Description |
| 4.1 | | Specimen common stock certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-188595) filed on June 12, 2013). |
| | | |
| 4.2 | | Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.2 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-188595) filed on June 12, 2013). |
| | | |
| 4.3 | | Amended and Restated Bylaws (incorporated by reference to Exhibit 3.4 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-188595) filed on June 7, 2013). |
| | | |
| 4.4 | | Form of Warrant to Purchase Preferred Stock dated September 4, 2012 (incorporated by reference to Exhibit 4.3 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-188595) filed on May 14, 2013). |
| | | |
| 4.5 | | Investor Rights Agreement by and between the Registrant and certain of its stockholders dated April 28, 2008 (incorporated by reference to Exhibit 4.4 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-188595) filed on May 14, 2013). |
| | | |
| 4.6 | | Amendment No. 1 to Investor Rights Agreement by and between the Registrant and certain of its stockholders dated April 11, 2013 (incorporated by reference to Exhibit 4.5 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-188595) filed on May 14, 2013). |
| | | |
| 4.7 | | Registration Rights and Securityholder Agreement by and between the Registrant and Pfizer Inc. dated April 28, 2008 (incorporated by reference to Exhibit 4.6 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-188595) filed on May 14, 2013). |
| | | |
| 5.1* | | Opinion of Goodwin Procter LLP |
| | | |
| 23.1* | | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm |
| | | |
| 23.2* | | Consent of Goodwin Procter LLP (included in Exhibit 5.1) |
| | | |
| 24.1* | | Power of Attorney (included on signature page) |
| | | |
| 99.1 | | Amended and Restated 2013 Stock Option and Incentive Plan and forms of agreements thereunder (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q, filed on November 3, 2016). |
| | | |
| 99.2 | | 2017 Inducement Equity Plan and form of award agreement thereunder (incorporated by reference to Exhibit 99.1 to the Registrant’s Registration Statement on Form S-8 (Registration No.333-218084), filed on May 18, 2017). |
| | | |
| 99.3 | | First Amendment to 2017 Inducement Equity Plan (incorporated by reference to Exhibit 10.16 to the Registrant’s Annual Report on Form 10-K, filed on February 27, 2020). |
* Filed herewith.
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 Ann Arbor, State of Michigan, on the 27th day of February, 2020.
| | ESPERION THERAPEUTICS, INC. |
| | |
| | By: | /s/ Tim M. Mayleben |
| | | Tim M. Mayleben |
| | | President, Chief Executive Officer and Director |
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Esperion Therapeutics, Inc., hereby severally constitute and appoint Tim M. Mayleben and Richard B. Bartram, and each of them singly (with full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them for him or her and in his or her name, place and stead, and in any and all capacities, to sign for us and in our names in the capacities indicated below any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as full to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully 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 below.
| Signature | | Title | | Date |
| | | | | |
| /s/ Tim M. Mayleben | | President, Chief Executive Officer and Director
(Principal Executive Officer) | | |
| Tim M. Mayleben | | | February 27, 2020 |
| | | | | |
| /s/ Richard B. Bartram | | Chief Financial Officer | | February 27, 2020 |
| Richard B. Bartram | | (Principal Financial Officer and Principal Accounting Officer) | | |
| | | | | |
| /s/ Jeffrey Berkowitz, J.D. | | Director | | February 27, 2020 |
| Jeffrey Berkowitz, J.D. | | | | |
| | | | | |
| /s/ Scott Braunstein, M.D. | | Director | | February 27, 2020 |
| Scott Braunstein, M.D. | | | | |
| | | | | |
| /s/ Antonio M. Gotto, M.D., D.Phil | | Director | | February 27, 2020 |
| Antonio M. Gotto, M.D., D.Phil | | | | |
| | | | | |
| /s/ Daniel Janney | | Director | | February 27, 2020 |
| Daniel Janney | | | | |
| | | | | |
| /s/ Mark E. McGovern, M.D. | | Director | | February 27, 2020 |
| Mark E. McGovern, M.D. | | | | |
| /s/ Jay Shepard | | Director | | February 27, 2020 |
| Jay Shepard | | | | |
| | | | | |
| /s/ Nicole Vitullo | | Director | | February 27, 2020 |
| Nicole Vitullo | | | | |
| | | | | |
| /s/ Tracy M. Woody | | Director | | February 27, 2020 |
| Tracy M. Woody | | | | |
