Exhibit 10.1


 


SECURITIES
PURCHASE AGREEMENT


 


This SECURITIES PURCHASE AGREEMENT (this “Agreement”),
dated as of August 5, 2008, by and among VIVUS, Inc., a Delaware
corporation (the “Company”), and the investors named on Exhibit A
hereto (each an “Investor” and collectively the “Investors”).


 


WITNESSETH


 


WHEREAS, the Company has filed with the Securities and
Exchange Commission (the “Commission”) a Registration Statement (as
defined below) relating to the offer and sale from time to time of the Company’s
securities, including shares of its Common Stock, $0.001 value (“Common
Stock”);


 


WHEREAS, the Company is offering for sale shares of
Common Stock (the “Offered Shares”) to the Investors pursuant to the
Registration Statement; and


 


WHEREAS, each Investor, severally and not jointly,
desires to purchase from the Company Offered Shares on the terms and conditions
set forth herein.


 


NOW, THEREFORE, in consideration of the recitals
(which are deemed to be a part of this Agreement), mutual covenants,
representations, warranties and agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:


 


1.             Definitions. 
As used herein, the following terms have the meanings indicated:


 


“Person” shall
mean any individual, partnership, limited liability company, joint venture,
firm, corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.


 


“Prospectus” shall
mean the prospectus forming a part of the Registration Statement and the
prospectus supplement relating to the Offered Shares in the form first filed
pursuant to Rule 424(b) under the Securities Act, as amended (the “Securities
Act”), as further amended or supplemented prior to the execution of this
Agreement, and shall include all information and documents incorporated by
reference in such prospectus.


 


“Registration
Statement” shall mean the registration statement on Form S-3 (File No. 333-150649),
including a prospectus, relating to the offer and sale of certain of the
Company’s Common Stock, which was declared effective by the Commission on May 29,
2008.  References herein to the term “Registration
Statement” as of any date shall mean such effective registration statement, as
amended or supplemented to such date, including all information and documents
incorporated by reference therein.


 

















 


2.                                       Purchase
of Common Stock.  Subject and
pursuant to the terms and conditions set forth in this Agreement, the Company
agrees that it will issue and sell to each Investor and each Investor, severally
and not jointly, agrees that it will purchase from the Company, the number of
Offered Shares set forth on Schedule I attached hereto (the “Investor
Shares”).  The aggregate purchase
price for the Investor Shares (the “Aggregate Purchase Price”) and the
purchase price per Investor Share is set forth on Schedule I
hereto.  The closing of the purchase and
sale of the Investor Shares will be on the date and at the time set forth on Schedule I
hereto, or such other date or time as the parties may agree upon in writing
(the “Closing”).


 


3.                                       Deliveries
at Closing.


 


(a)           Deliveries by the Investor.  Promptly after receipt of the shares by the
Investor’s custodian each Investor shall deliver to the Company the Aggregate
Purchase Price by wire transfer of immediately available funds to an account
designated by the Company as set forth on Schedule I hereto, which
funds will be delivered to the Company in consideration of the Investor Shares
issued at the Closing.


 


(b)           Deliveries by the Company.  Prior to the Closing, the Company shall
deliver to each Investor the Investor Shares through The Depository Trust
Company DWAC system to the account that the Investor has specified in writing
to the Company.


 


4.                                       Representations,
Warranties, Covenants and Agreements.


 


(a)           Investor Representations,
Warranties and Covenants.  Each
Investor, severally and not jointly, represents, warrants and agrees as
follows:


 


(1)                                  Investor
has received copies of the Registration Statement and the Prospectus, including
all documents and information incorporated by reference therein and amendments
thereto, and understands that no Person has been authorized to give any
information or to make any representations that were not contained in the
Registration Statement and the Prospectus, and Investor has not relied on any
such other information or representations in making a decision to purchase the
Investor Shares.  Investor hereby
consents to receiving delivery of the Registration Statement and the
Prospectus, including all documents and information incorporated by reference
therein and any amendments thereto, by electronic mail.


 


(2)                                  Investor
acknowledges that it has sole responsibility for its own due diligence
investigation and its own investment decision, and that in connection with its
investigation of the accuracy of the information contained or incorporated by
reference in the Registration Statement and the Prospectus and its investment
decision, Investor has not relied on any representation or information not set
forth in this Agreement, the Registration Statement or the Prospectus.


 


(3)                                  The
execution and delivery of this Agreement by Investor and the performance of
this Agreement and the consummation by Investor of the transactions
contemplated hereby have been duly authorized by all necessary (corporate,
partnership or limited liability in the case of a corporation, partnership or
limited liability company) action of Investor, and this Agreement, when duly
executed and delivered by Investor, will constitute a valid and legally binding



 


2

















 


instrument, enforceable in accordance with its terms
against Investor, except as enforcement hereof may be limited by the effect of
any applicable bankruptcy, insolvency, reorganization or similar laws or court
decisions affecting enforcement of creditors’ rights generally and except as
enforcement hereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).


 


(4)                                  No
state, federal or foreign regulatory approvals, permits, licenses or consents
are required for Investor to enter into this Agreement or purchase the Investor
Shares.


 


(b)           Company Representations,
Warranties and Covenants.  The
Company hereby represents, warrants and agrees as follows:


 


(1)                                  The
Company has been duly incorporated and has a valid existence and the
authorization to transact business as a corporation under the laws of the State
of Delaware, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
except for such jurisdictions wherein the failure to be so qualified and in
good standing would not individually or in the aggregate have a material
adverse effect on the business, results of operations or financial condition of
the Company and its subsidiaries taken as a whole (a “Material Adverse
Effect”).


 


(2)                                  Each
subsidiary of the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
except for such jurisdictions wherein the failure to be so qualified and in
good standing would not individually or in the aggregate have a Material
Adverse Effect.  All subsidiaries and
their respective jurisdictions of incorporation are identified on Schedule
II hereto.  Except as disclosed in Schedule
II, all of the outstanding capital stock or other voting securities of each
subsidiary is owned by the Company, directly or indirectly, free and clear of
any lien and free of any other limitation or restriction (including any
restriction on the right to vote, sell or otherwise dispose of such capital
stock or other voting securities).  There
are no outstanding (i) securities of the Company or any of the
subsidiaries of the Company which are convertible into or exchangeable for
shares of capital stock or voting securities of any subsidiary of the Company
or (ii) options or other rights to acquire from the Company or any
subsidiary of the Company, or other obligation of the Company or any subsidiary
of the Company to issue, any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting securities of any
subsidiary of the Company (collectively, the “Subsidiary Securities”).  There are no outstanding obligations of the
Company or any subsidiary of the Company to repurchase, redeem or otherwise
acquire any outstanding Subsidiary Securities.


 


(3)                                  The
execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby are within the corporate
powers of the Company and have been duly authorized by all necessary corporate
action on the part 


 


3

















 


of the Company, and this Agreement, when duly executed
and delivered by the parties hereto, will constitute a valid and legally
binding instrument of the Company enforceable in accordance with its terms,
except as enforcement hereof may be limited by the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws or court decisions
affecting enforcement of creditors’ rights generally and except as enforcement
hereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).


 


(4)                                  The
Investor Shares have been duly authorized by the Company, and when issued and
delivered by the Company against payment therefor as contemplated by this
Agreement, the Investor Shares will be validly issued, fully paid and
nonassessable, and will conform to the description of the Common Stock contained
in the Prospectus.


 


(5)                                  The
execution and delivery of this Agreement do not, and the compliance by the
Company with the terms hereof will not, (i) violate the Certificate of
Incorporation (as amended to date) of the Company or the By-Laws (as amended to
date) of the Company, (ii) result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of their properties or assets are
subject, or (iii) result in a violation of, or failure to be in compliance
with, any applicable statute or any order, judgment, decree, rule or
regulation of any court or governmental, regulatory or self-regulatory agency
or body having jurisdiction over the Company or any of its subsidiaries or any
of their properties or assets, except where such breach, violation, default or the
failure to be in compliance would not individually or in the aggregate have a
Material Adverse Effect or adversely affect the ability of the Company to issue
and sell the Investor Shares; and no consent, approval, authorization, order,
registration, filing or qualification of or with any such court or
governmental, regulatory or self-regulatory agency or body is required for the
valid authorization, execution, delivery and performance by the Company of this
Agreement or the issuance of the Investor Shares, except for such consents,
approvals, authorizations, registrations, filings or qualifications as may be
required under the Securities Act or state securities or “blue sky” laws and
have been or will be obtained and which have been or will be made in connection
with the listing of the Investor Shares on the Nasdaq Global Market.


 


(6)                                  The
Company meets the requirements for the use of Form S-3 under the
Securities Act for the primary issuance of securities.  The Registration Statement has been declared
effective by the Commission and at the time it became effective, and as of the
date hereof, the Registration Statement complied and complies with Rule 415
under the Securities Act.  No stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose has been initiated or, to the Company’s
knowledge, threatened by the Commission. 
On the effective date of the Registration Statement, the Registration
Statement complied, on the date of the Prospectus, the Prospectus will comply,
and at the date of the Closing, the Registration Statement and the Prospectus
will comply, in all material respects with the applicable provisions of the
Securities Act and the applicable rules and regulations of the Commission
thereunder; on the effective date of the Registration Statement, the
Registration Statement did not, on the date of the Prospectus, the Prospectus
did not, and at the date of the Closing, the Registration Statement and the
Prospectus, will not, contain an untrue statement of a material fact or omit to
state a material fact 


 


4

















 


required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made (with respect to the Prospectus), not misleading; and when filed with
the Commission, the documents incorporated by reference in the Registration
Statement and the Prospectus, complied or will comply in all material respects
with the applicable provisions of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and the applicable rules and
regulations of the Commission thereunder. 
There is no material document of a character required to be described in
the Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement that is not described or filed as required.


 


(7)                                  The
consolidated financial statements and financial schedules of the Company
included or incorporated by reference in the Registration Statement and the
Prospectus comply as to form with the applicable accounting requirements of the
Securities Act and have been prepared in conformity with generally accepted
accounting principles (except, with respect to the unaudited consolidated
financial statements, for the footnotes and subject to customary audit
adjustments) applied on a consistent basis, are consistent in all material
respects with the books and records of the Company, and accurately present in
all material respects the consolidated financial position, results of
operations and cash flow of the Company and its subsidiaries as of and for the
periods covered thereby.


 


(8)                                  There
are no material liabilities of the Company or any subsidiary of the Company of
any kind whatsoever, whether accrued, contingent, absolute, determined,
determinable or otherwise, and there is no existing condition, situation or set
of circumstances which could reasonably be expected to result in such a
liability, other than liabilities disclosed in the consolidated financial
statements and financial schedules of the Company, and other undisclosed
liabilities which, individually or in the aggregate, are not material to the
Company and any of its subsidiaries, taken as a whole.


 


(9)                                  Neither
the Company nor any of its subsidiaries has sustained since the respective
dates of the latest audited financial statements included or incorporated by
reference in the Registration Statement and Prospectus any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as disclosed in or
contemplated by the Registration Statement and Prospectus; and, since the
respective dates as of which information is given in the Registration Statement
and Prospectus, there has not been any material change in the capital stock or
long-term debt of the Company or any of its subsidiaries, the Company and its
subsidiaries have not incurred any material liabilities or obligations, direct
or contingent, nor entered into any material transactions, except for entering
into purchase orders in the ordinary course of business, and there has not been
any material adverse change in or affecting the general affairs, management,
financial position, stockholders’ equity or results of operations of the
Company and its subsidiaries considered as a whole, otherwise than as disclosed
in or contemplated by the Registration Statement and Prospectus.


 


(10)                            Other
than as disclosed in the Prospectus, there are no legal, governmental or
regulatory proceedings pending to which the Company or any of its subsidiaries
is a party or of which any material property of the Company or any of its
subsidiaries is the subject which, taking into account the likelihood of the
outcome, the damages or other relief sought and 


 


5

















 


other relevant factors, would individually or in the
aggregate reasonably be expected to have a Material Adverse Effect or adversely
affect the ability of the Company to issue and sell the Investor Shares; to the
best of the Company’s knowledge, no such proceedings are threatened or
contemplated by governmental or regulatory authorities or threatened by others.


 


(11)                            The
Company and each of its subsidiaries have good and marketable title to all the
real property and owns all other properties and assets, reflected as owned in
the financial statements included or incorporated by reference in the
Registration Statement and the Prospectus, subject to no lien, mortgage,
pledge, charge or encumbrance of any kind except those, if any, reflected in
such financial statements or which are not material to the Company and its
subsidiaries taken as a whole.  The
Company and each of its subsidiaries hold their respective leased real and
personal properties under valid and binding leases, except where the failure to
do so would not reasonably be expected to individually or in the aggregate have
a Material Adverse Effect.


 


(12)                            The
Company has filed all necessary federal and state income and franchise tax
returns and has paid all taxes shown as due thereon or has filed all necessary
extensions, and there is no tax deficiency that has been, or to the knowledge
of the Company might be, asserted against the Company or any of its properties
or assets that would in the aggregate or individually reasonably be expected to
have a Material Adverse Affect.


 


(13)                            There
are no authorized options, warrants, preemptive rights, rights of first refusal
or other rights to purchase, or equity or debt securities convertible into or
exchangeable or exercisable for, any capital stock of the Company or its
subsidiaries other than those accurately described in the Registration
Statement and the Prospectus.  There are
no holders or beneficial owners of securities of the Company having rights to
registration thereof whose securities have not been previously registered or
who have not waived such rights with respect to the registration of the Company’s
securities on the Registration Statement, except where the failure to obtain
such waiver would not individually or in the aggregate reasonably be expected
to have a Material Adverse Effect.


 


(14)                            The
Company has not taken and will not take any action that constitutes or is
designed to cause or result, or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Offered Shares.


 


(15)                            Other
than as disclosed in the Prospectus, the Company together with its subsidiaries
owns and possesses all right, title and interest in and to, or, to the Company’s
knowledge, has duly licensed from third parties, all patents, patent rights,
trade secrets, inventions, know-how, trademarks, trade names, copyrights,
service marks and other proprietary rights (“Intellectual Property”)
material to the business of the Company and each of its subsidiaries taken as a
whole as currently conducted and as described in the Prospectus.  To the Company’s knowledge and except as
would not individually or in the aggregate have a Material Adverse Effect,
there is no infringement or other violation by third parties of any of the
Intellectual Property of the Company. 
Neither the Company nor any of its subsidiaries has received any notice
of infringement or misappropriation from any third party that has not been
resolved or disposed of and, to the Company’s knowledge, neither the Company
nor any of its subsidiaries has infringed or misappropriated the Intellectual
Property of any third party, which infringement or misappropriation 


 


6

















 


would individually or in the aggregate have a Material
Adverse Effect.  Further, there is no
pending or, to the Company’s knowledge and except as would not individually or
in the aggregate have a Material Adverse Effect, threatened action, suit,
proceeding or claim by governmental authorities or others that the Company is
infringing a patent, and there is no pending or, to the Company’s knowledge and
except as would not individually or in the aggregate have a Material Adverse
Effect, threatened legal or administrative proceeding relating to patents and
patent applications of the Company, other than proceedings initiated by the
Company before the United States Patent and Trademark Office and the patent
offices of certain foreign jurisdictions which are in the ordinary course of
patent prosecution.  To the Company’s
knowledge, the patent applications of the Company presently on file disclose
patentable subject matter, and the Company is not aware of any inventorship
challenges, any interference which has been declared or provoked, or any other
material fact that (i) would preclude the issuance of patents with respect
to such applications, or (ii) would lead outside patent counsel for the
Company to conclude that such patents, when issued, would not be valid and
enforceable in accordance with applicable regulations.


 


(16)                            The
conduct of the business of the Company and each of its subsidiaries is in
compliance in all respects with applicable laws, rules and regulations of
governmental and regulatory bodies, except where the failure to be in
compliance would not individually or in the aggregate have a Material Adverse
Effect.


 


(17)                            The
Company is not, and does not intend to conduct its business in a manner in
which it would become, an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.


 


(18)                            All
offers and sales of the Company’s capital stock prior to the date hereof were
at all relevant times registered pursuant to the Securities Act or exempt from
the registration requirements of the Securities Act and were duly registered
with or the subject of an available exemption from the registration
requirements of the applicable state securities or blue sky laws, except where
the failure to do so would not individually or in the aggregate reasonably be
expected to have a Material Adverse Effect.


 


(19)                            The
Company has filed with the Nasdaq Global Market a Notification of Listing of
Additional Shares with respect to the Investor Shares required by the rules of
the Nasdaq Global Market and has not received a notice from the Nasdaq Global
Market that such notification is insufficient. 
The offer and sale of the Offered Shares does not require stockholder
approval under Rule 4350 of the Nasdaq Stock Market Rules.


 


(20)                            Neither
the Company nor its subsidiaries nor, to the best of the Company’s knowledge,
any employee or agent of the Company or its subsidiaries, has made any
contribution or other payment to any official of, or candidate for, any
federal, state or foreign office in violation of any law or of the character
required to be disclosed in the Prospectus.


 


(21)                            There
is no broker, finder or other party that is entitled to receive from the
Company any brokerage or finder’s fee or other fee or commission as a result of
any transactions contemplated by this Agreement, except as disclosed on Schedule
III.


 


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(22)                            There
are no outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees or indebtedness by
the Company to, or for the benefit of, any of the officers or directors of the
Company.


 


(23)                            To the
extent that the Company or any other Person acting on its behalf has provided
the Investor or its agents or counsel with any information that the Company
believes constitutes material, non-public information, any such material,
non-public information will be disclosed to the public by the Company no less
than 48 hours prior to the Closing.


 


5.                                       Conditions.  The obligation of each Investor to purchase
and acquire the Investor Shares hereunder shall be subject to the condition
that all representations and warranties and other statements of the Company
shall be true and correct as of and on each of the date of this Agreement and
the date of the Closing, the condition that the Company shall have performed
all of its obligations hereunder theretofore to be performed, and the following
additional conditions:


 


(a)           The Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) under the Securities Act
within the applicable time period prescribed for such filing, no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission, and the Investor shall have received
the Prospectus in accordance with the federal securities laws.


 


(b)           The Offered Shares shall have been
authorized for quotation on the Nasdaq Global Market.


 


6.                                       Miscellaneous.


 


(a)           Fees and Expenses.  Each of the parties hereto shall be
responsible for their own expenses incurred in connection with the transactions
contemplated hereby.


 


(b)           Binding Agreement; Assignment.  This Agreement shall be binding upon, and
shall inure solely to the benefit of, each of the parties hereto, and each of
their respective heirs, executors, administrators, successors and permitted
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement.  The Investors may not
assign any of these rights or obligations hereunder to any other person or
entity without the prior written consent of the Company.


 


(c)           Entire Agreement.  This Agreement, including Exhibit A
and Schedules I, II and III hereto, constitutes the
entire understanding between the parties hereto with respect to the subject
matter hereof and may be amended only by written execution by each of the
parties hereto.  Upon execution by the
Company and the Investors, this Agreement shall be binding on each of the
parties hereto.


 


(d)           Consent To Jurisdiction.  THIS AGREEMENT SHALL BE ENFORCED, GOVERNED
AND CONSTRUED IN ALL RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS PRINCIPLES.


 


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(e)           Notices.  All notices, requests, consents and other communication
hereunder shall be in writing, shall be mailed by first class registered or
certified mail, or nationally recognized overnight express courier postage
prepaid, and shall be deemed given when so mailed and shall be delivered as
addressed as follows:


 


if to the Company, to:


 


VIVUS, Inc.

1172 Castro Street

Mountain View, CA 94040

Attn: Chief Financial Officer


 


with a copy mailed to:


 


Wilson Sonsini Goodrich & Rosati

650 Page Mill Road

Palo Alto, CA 94304

Attn: Mark Reinstra, Esq.


 


or to such other Person
at such other place as the Company shall designate to the Investors in writing;
and if to the Investors, at the addresses as set forth on Exhibit A
hereto, or at such other address or addresses as may have been furnished to the
Company in writing.


 


(f)            Counterparts.  This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one in the same agreement.


 


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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.


 


	
   

  	
   

  	
  VIVUS, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Timothy E. Morris

  
	
   

  	
   

  	
  Name:
  Timothy E. Morris

  
	
   

  	
   

  	
  Title:
  Chief Financial Officer

  



 
















 


Accepted and agreed to as
of the date

first above written:


 


 


CAXTON INTERNATIONAL
LIMITED


 


 


	
  By:

  	
  /s/John G.
  Forbes, Jr.

  	
   

  	
  By:

  	
   

  
	
   

  	
  Name: John G.
  Forbes, Jr.

  	
   

  	
   

  	
  Name:

  
	
   

  	
  Title: Chief
  Financial Officer

  	
   

  	
   

  	
  Title:

  
	
   

  	
  Address:

  	
   

  	
   

  	
   

  



 


 


Telephone:


Facsimile:


Email
Address:


 


Nominee (name in which
Investor Shares are to be registered, 

if different than name of Investor):


 


Address of Nominee:


 


 


Taxpayer ID. Number: N/A


(if acquired in the name
of a nominee, the taxpayer ID. number of such nominee)


 


Broker:


Broker Contact Name:


Broker Contact Telephone:


Broker Contact Facsimile:


Broker Contact E-mail
Address:


 


DTC account number:


 

















 


Accepted and agreed to as
of the date

first above written:


 


 


CHILTON SMALL CAP
INTERNATIONAL, L.P.


 


By: Chilton Investment
Company, LLC as General Partner


 


 


	
  By:

  	
  /s/Norman B.
  Champ III

  	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Norman B.
  Champ III

  	
   

  	
   

  	
  Name:

  
	
   

  	
  Title: Executive
  Vice President

  	
   

  	
   

  	
  Title:

  
	
   

  	
  Address:

  	
   

  	
   

  	
   

  



 


 


Telephone:


Facsimile:


Email
Address:


 


Nominee (name in which
Investor Shares are to be registered, 

if different than name of Investor):


 


Address of Nominee:


 


 


Taxpayer ID. Number: N/A


(if acquired in the name
of a nominee, the taxpayer ID. number of such nominee)


 


Broker:


Broker Contact Name:


Broker Contact Telephone:


Broker Contact Facsimile:


Broker Contact E-mail Address:


 


DTC account number:


 

















 


Accepted and agreed to as
of the date

first above written:


 


 


CUDD & CO. (DEKA
INVESTMENTS)


 


 


	
  By:

  	
  /s/Kai Briming

  	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Kai
  Briming

  	
   

  	
   

  	
  Name:

  
	
   

  	
  Title: Portfolio
  Manager

  	
   

  	
   

  	
  Title:

  
	
   

  	
  Address:

  	
   

  	
   

  	
   

  



 


 


Telephone:


Facsimile:


Email
Address:


 


Nominee (name in which
Investor Shares are to be registered, 

if different than name of Investor):


 


Address of Nominee:


 


 


Taxpayer ID. Number: N/A


(if acquired in the name
of a nominee, the taxpayer ID. number of such nominee)


 


Broker:


Broker Contact Name:


Broker Contact Telephone:


Broker Contact Facsimile:


Broker Contact E-mail
Address:


 


DTC account number:


 

















 


Accepted and agreed to as
of the date

first above written:


 


 


DEERFIELD PRIVATE DESIGN
FUND, LP


 


 


	
  By:

  	
  /s/Darren Levine

  	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Darren
  Levine

  	
   

  	
   

  	
  Name:

  
	
   

  	
  Title: Chief
  Financial Officer

  	
   

  	
   

  	
  Title:

  
	
   

  	
  Address:

  	
   

  	
   

  	
   

  



 


 


Telephone:


Facsimile:


Email
Address:


 


Nominee (name in which
Investor Shares are to be registered, 

if different than name of Investor):


 


Address of Nominee:


 


 


Taxpayer ID. Number: N/A


(if acquired in the name
of a nominee, the taxpayer ID. number of such nominee)


 


Broker:


Broker Contact Name:


Broker Contact Telephone:


Broker Contact Facsimile:


Broker Contact E-mail
Address:


 


DTC account number:


 

















 


Accepted and agreed to as
of the date

first above written:


 


 


DEERFIELD PRIVATE DESIGN
FUND INTERNATIONAL, LP


 


 


	
  By:

  	
  /s/Darren Levine

  	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Darren
  Levine

  	
   

  	
   

  	
  Name:

  
	
   

  	
  Title: Chief
  Financial Officer

  	
   

  	
   

  	
  Title:

  
	
   

  	
  Address:

  	
   

  	
   

  	
   

  



 


 


Telephone:


Facsimile:


Email
Address:


 


Nominee (name in which
Investor Shares are to be registered, 

if different than name of Investor):


 


Address of Nominee:


 


 


Taxpayer ID. Number: N/A


(if acquired in the name
of a nominee, the taxpayer ID. number of such nominee)


 


Broker:


Broker Contact Name:


Broker Contact Telephone:


Broker Contact Facsimile:


Broker Contact E-mail
Address:


 


DTC account number:


 

















 


Accepted and agreed to as
of the date

first above written:


 


 


DOMAIN PUBLIC EQUITY
PARTNERS, L.P.


 


By: Domain Public Equity
Associates, L.L.C.


 


 


	
  By:

  	
  /s/Nicole
  Vitullo

  	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Nicole
  Vitullo

  	
   

  	
   

  	
  Name:

  
	
   

  	
  Title: Managing
  Member

  	
   

  	
   

  	
  Title:

  
	
   

  	
  Address:

  	
   

  	
   

  	
   

  



 


 


Telephone:


Facsimile:


Email
Address:


 


Nominee (name in which
Investor Shares are to be registered, 

if different than name of Investor):


 


Address of Nominee:


 


 


Taxpayer ID. Number: N/A


(if acquired in the name
of a nominee, the taxpayer ID. number of such nominee)


 


Broker:


Broker Contact Name:


Broker Contact Telephone:


Broker Contact Facsimile:


Broker Contact E-mail
Address:


 


DTC account number:


 

















 


Accepted and agreed to as
of the date

first above written:


 


 


FIDELITY CONTRAFUND ON
BEHALF OF ITS SERIES FIDELITY CONTRAFUND


 


 


	
  By:

  	
  /s/Adrien
  Deberghes

  	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Adrien
  Deberghes

  	
   

  	
   

  	
  Name:

  
	
   

  	
  Title: Deputy
  Treasurer

  	
   

  	
   

  	
  Title:

  
	
   

  	
  Address:

  	
   

  	
   

  	
   

  



 


 


Telephone:


Facsimile:


Email
Address:


 


Nominee (name in which
Investor Shares are to be registered, 

if different than name of Investor):


 


Address of Nominee:


 


 


Taxpayer ID. Number: N/A


(if acquired in the name
of a nominee, the taxpayer ID. number of such nominee)


 


Broker:


Broker Contact Name:


Broker Contact Telephone:


Broker Contact Facsimile:


Broker Contact E-mail
Address:


 


DTC account number:


 

















 


Accepted and agreed to as
of the date

first above written:


 


 


FIDELITY CONTRAFUND ON
BEHALF OF ITS SERIES FIDELITY NEW INSIGHTS FUND


 


 


	
  By:

  	
  /s/Adrien
  Deberghes

  	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Adrien
  Deberghes

  	
   

  	
   

  	
  Name:

  
	
   

  	
  Title: Deputy
  Treasurer

  	
   

  	
   

  	
  Title:

  
	
   

  	
  Address:

  	
   

  	
   

  	
   

  



 


 


Telephone:


Facsimile:


Email
Address:


 


Nominee (name in which
Investor Shares are to be registered, 

if different than name of Investor):


 


Address of Nominee:


 


 


Taxpayer ID. Number: N/A


(if acquired in the name
of a nominee, the taxpayer ID. number of such nominee)


 


Broker:


Broker Contact Name:


Broker Contact Telephone:


Broker Contact Facsimile:


Broker Contact E-mail
Address:


 


DTC account number:


 

















 


Accepted and agreed to as
of the date

first above written:


 


 


UBS O’CONNOR LLC F/B/O: O’CONNOR
PIPES CORPORATE STRATEGIES MASTER LIMITED


 


 


	
  By:

  	
  /s/Jeffrey
  Putnam

  	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Jeffrey
  Putnam

  	
   

  	
   

  	
  Name:

  
	
   

  	
  Title: Executive
  Director

  	
   

  	
   

  	
  Title:

  
	
   

  	
  Address:

  	
   

  	
   

  	
   

  



 


 


Telephone:


Facsimile:


Email
Address:


 


Nominee (name in which
Investor Shares are to be registered, 

if different than name of Investor):


 


Address of Nominee:


 


 


Taxpayer ID. Number: N/A


(if acquired in the name
of a nominee, the taxpayer ID. number of such nominee)


 


Broker:


Broker Contact Name:


Broker Contact Telephone:


Broker Contact Facsimile:


Broker Contact E-mail
Address:


 


DTC account number:


 

















 


Accepted and agreed to as
of the date

first above written:


 


 


VISIUM LONG BIAS OFFSHORE
FUND, LTD


VISIUM LONG BIAS FUND, LP


VISIUM BALANCED OFFSHORE
FUND, LTD


VISIUM BALANCED FUND, LP


 


 


	
  By:

  	
  /s/Mark Gottlieb

  	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Mark
  Gottlieb

  	
   

  	
   

  	
  Name:

  
	
   

  	
  Title:
  Authorized Signatory

  	
   

  	
   

  	
  Title:

  
	
   

  	
  Address:

  	
   

  	
   

  	
   

  



 


 


Telephone:


Facsimile:


Email
Address:


 


Nominee (name in which
Investor Shares are to be registered, 

if different than name of Investor):


 


Address of Nominee:


 


 


Taxpayer ID. Number: N/A


(if acquired in the name
of a nominee, the taxpayer ID. number of such nominee)


 


Broker:


Broker Contact Name:


Broker Contact Telephone:


Broker Contact Facsimile:


Broker Contact E-mail
Address:


 


DTC account number:


 
















 


Exhibit A


Investors


 


Caxton International
Limited


 


Chilton Small Cap
International, L.P.


 


Cudd & Co. (Deka
Investments)


 


Deerfield Private Design
Fund, LP


Deerfield Private Design
Fund International, LP


 


Domain Public Equity
Partners, L.P.


 


Fidelity Contrafund:
Fidelity Contrafund


Fidelity Contrafund:
Fidelity Advisor New Insights Fund


 


UBS O’Connor LLC F/B/O:
O’Connor Pipes Corporate Strategies Master Limited


 


Visium Long Bias Offshore
Fund, LTD


Visium Long Bias Fund, LP


Visium Balanced Offshore
Fund, LTD


Visium Balanced Fund, LP


 

















 


SCHEDULE I

to

Securities Purchase Agreement


 


Closing:
August 5, 2008


 


	
  Name of Investor

  	
   

  	
  Aggregate Purchase Price

  	
   

  	
  Number of Offered Shares 

  to be Purchased by Investor

  	
   

  
	
  Caxton
  International Limited

  	
   

  	
  $

  	
  19,986,242.64

  	
   

  	
  2,572,232

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Chilton Small
  Cap International, L.P.

  	
   

  	
  $

  	
  3,885,000.00

  	
   

  	
  500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cudd &
  Co.

  	
   

  	
  $

  	
  2,000,005.77

  	
   

  	
  257,401

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Deerfield
  Private Design Fund, LP

  	
   

  	
  $

  	
  478,748.55

  	
   

  	
  61,615

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Deerfield
  Private Design Fund International, LP

  	
   

  	
  $

  	
  771,250.20

  	
   

  	
  99,260

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Domain Public
  Equity Partners, L.P.

  	
   

  	
  $

  	
  1,554,000.00

  	
   

  	
  200,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fidelity
  Contrafund: Fidelity Contrafund

  	
   

  	
  $

  	
  25,448,226.30

  	
   

  	
  3,275,190

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fidelity
  Contrafund: Fidelity Advisor New Insights Fund

  	
   

  	
  $

  	
  3,883,523.70

  	
   

  	
  499,810

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UBS O’Connor LLC
  F/B/O: O’Connor Pipes Corporate Strategy Master Limited

  	
   

  	
  $

  	
  3,885,000.00

  	
   

  	
  500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Visium Long Bias
  Offshore Fund, LTD

  	
   

  	
  $

  	
  393,263.01

  	
   

  	
  50,613

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Visium Long Bias
  Fund, LP

  	
   

  	
  $

  	
  123,978.12

  	
   

  	
  15,956

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Visium Balanced
  Offshore Fund, LTD

  	
   

  	
  $

  	
  1,848,086.73

  	
   

  	
  237,849

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Visium Balanced
  Fund, LP

  	
   

  	
  $

  	
  742,672.14

  	
   

  	
  95,582

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Purchase Price
  Per Share of Common Stock

  	
   

  	
  $

  	
  7.77

  	
   

  	
   

  	
   

  



 


Date and Time of Closing:
August 5, 2008 at 1:00 p.m., Pacific Standard Time


 


WIRE
INSTRUCTIONS


 


Aggregate Purchase Price
to be wired to:


 


Bank:


Address:


Account
Name:


SWIFT
Code:


Account
Number:


ABA
Number:


E-mail
confirmation to:


 

















 


SCHEDULE II


to


Securities Purchase Agreement


 


	
  List of Subsidiaries

  	
   

  	
  Percent Owned

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ·      VIVUS UK Limited (United Kingdom)

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  ·      VIVUS BV (Netherlands)

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  ·      VIVUS Real Estate, LLC (New Jersey)

  	
   

  	
  100

  	
  %

  



 

















 


SCHEDULE III

to

Securities Purchase Agreement


 


List
of Firm Receiving a Fee:


 


·                  Trout Capital LLC


740 Broadway


New York, NY 10003


Phone: 
646-378-2900


Attn: Jonathan Fassberg


 


·                  Amount of Broker’s Fee = $1,300,000