Exhibit 10.1


 


FIRST
AMENDMENT TO THE VIVUS, INC.


LELAND
F. WILSON EMPLOYMENT AGREEMENT


DATED
DECEMBER 20, 2007


 


This First Amendment to
the VIVUS, Inc. Leland F. Wilson Employment Agreement is made as of January
___, 2009, by and between VIVUS, Inc., a Delaware corporation (the “Company”), and Leland F. Wilson (“Executive”)
dated December 20, 2007, with an effective date of June 1, 2007 (the “Effective Date”).


 


WHEREAS, the parties
entered into the VIVUS, Inc. Leland F. Wilson Employment Agreement dated December 20,
2007 (the “Original Agreement”), and the
Original Agreement had an initial term of two (2) years commencing upon
the Effective Date (the “Initial Term”).


 


WHEREAS, the parties wish
to amend the Original Agreement to increase the Initial Term to three (3) years
and to extend other dates in the Original Agreement that were predicated on a
two (2) year Initial Term.


 


WHEREAS, the Original
Agreement, as set forth in Section 20 provides that any amendments to the
Original Agreement must be in a writing executed by the parties.


 


WHEREAS, the parties
enter this First Amendment to amend the Original Agreement as set forth below
to allow for an Initial Term of three (3) years commencing on the
Effective Date.


 


NOW THEREFORE, the
parties agree as follows:


 


1.             Section 3 of the
Original Agreement shall be amended and restated in its entirety to read as
follows:


 


3              Term of Agreement.  This Agreement will have an initial term of
three (3) years commencing on the Effective Date (the “Initial Term”).  On
the third anniversary of the Effective Date, this Agreement will renew for an
additional one (1) year term (the “Additional Term”)
unless either party provides the other party with written notice of non-renewal
at least ninety (90) days prior to the date of automatic renewal.  If the Company provides Executive with a
notice of non-renewal, and such non-renewal is for reasons other than Cause,
Executive will be entitled to the amounts and benefits specified in Section 8
of this Agreement.


 


2.             Section 12(a)(v) of
the Original Agreement shall be amended and restated in its entirety to read as
follows:


 


(a)           Cause.  For purposes of this Agreement, “Cause” will mean:


 


(v)      Executive’s failure to
identify to the Board (with such identification to be made in writing to the
Board) an appropriate individual to serve as President of the 


 


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Company and as a
successor to Executive (the “Successor”) by January 31,
2010 (with any determination relating to the appropriateness of the Successor
identified by Executive to be made in writing by the Board and in the sole
discretion of the Board in good faith); or


 


3.             Section 12(g) of
the Original Agreement shall be amended and restated in its entirety to read as
follows:


 


(g)           Retirement.  For purposes of this Agreement, “Retirement” will mean Executive’s voluntary termination at
any time following the date that is forty-two (42) months from the Effective
Date, provided Executive has given the Company ninety (90) days notice of his
intent to terminate his employment due to his Retirement and the Company has
consented to such termination.


 


4.             This First Amendment
may be executed in one or more counterparts, each of which shall for all
purposes be deemed to be an original and all of which shall constitute the same
instrument.  This First Amendment may be
executed by facsimile signature, which shall be deemed to be effective.


 


5.             Upon the execution of
this First Amendment by the Company and Executive, this First Amendment shall
be binding upon the parties to the Original Agreement.


 


6.             Except as set forth
above, the remainder of the Original Agreement shall remain in full force and
effect and shall be binding on all parties thereto.  All terms not otherwise defined in this First
Amendment shall have the meanings prescribed to them in the Original Agreement.


 


IN WITNESS WHEREOF, the
parties have duly executed this First Amendment to the VIVUS, Inc. Leland
F. Wilson Employment Agreement dated December 20, 2007 as of the date set
forth below.


 


	
  COMPANY

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
  VIVUS, Inc.

  	
   

  	
   

  
	
  a Delaware corporation

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Signature)

  	
   

  	
  (Signature)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Print Name)

  	
   

  	
  (Print Name)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Print Title if signing
  on behalf of an entity)

  	
   

  	
  (Print Title if signing
  on behalf of an entity)

  
	
   

  	
   

  	
   

  
	
  Date:  

  	
   

  	
  Date:  

  



 


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