As filed with the Securities and Exchange Commission on September 24, 2002
Registration No. 333-
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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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)
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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
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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)
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Common Stock, $0.001 par 1,369,000 $ 5.75 $ 7,871,750 $ 724.20
value
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(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.
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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
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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
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Susan B. Bayh
/s/ Henry E. Blair Director
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Henry E. Blair
/s/ Ronald M. Cresswell Director
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Ronald M. Cresswell
/s/ Antonio M. Gotto, Jr. Director
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Antonio M. Gotto, Jr.
/s/ Eileen M. More Director
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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.