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UNITED STATES
SECURITIES AND EXCHANGE COMMISSIONWashington, D.C. 20549



FORM 10-K



ý

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934For the fiscal year ended December 31, 2010ORo

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED)For the transition period
from                                   to


Commission File Number 001-33389

VIVUS, INC.(Exact name of Registrant as specified in its charter)

Delaware(State or other jurisdiction of
incorporation or organization)

94-3136179(IRS employer identification number)1172 Castro Street
Mountain View, California(Address of principal executive office)

94040(Zip Code)


Registrant's
telephone number, including area code:(650) 934-5200

Securities
registered pursuant to Section 12(b) of the Act:

Title of Each Class

Name of Each Exchange on Which RegisteredCommon Stock, $.001 Par Value
(Title of class)

The NASDAQ Global Select MarketPreferred Share Purchase Rights
(Title of class)


Securities registered pursuant to Section 12(g) of the Act: None

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities
Act. Yes ý    No o

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the
Act. Yes o    No ý

Indicate by check mark whether the Registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the
past 90 days. Yes ý    No o

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to
be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that
the registrant was required to submit and post such files). Yes o    No o

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not
be contained, to the best of Registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K. o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer ý

Accelerated filer o

Non-accelerated filer o (Do not check if a smaller reporting company)

Smaller reporting company o


Indicate
by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the
Act). Yes o    No ý

The aggregate market value of the common equity held by non-affiliates of the Registrant as of June 30, 2010 totaled approximately $774,287,837
based on the closing stock price as reported by the NASDAQ Global Market.

As
of February 18, 2011, there were 81,888,089 shares of the Registrant's common stock, $0.001 par value per share, outstanding.

DOCUMENTS INCORPORATED BY REFERENCE

Document Description

10-K partPortions of the Registrant's notice of annual meeting of stockholders and proxy statement to be filed pursuant to Regulation 14A within
120 days after Registrant's fiscal year end of December 31, 2010 are incorporated by reference into Part III of this report.

III, ITEMS 10, 11, 12, 13, 14




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VIVUS, INC.
FISCAL 2010 FORM 10-K
INDEX



PART IItem 1:

Business

4Item 1A:

Risk Factors

27Item 1B:

Unresolved Staff Comments

74Item 2:

Properties

74Item 3:

Legal Proceedings

75Item 4:

Removed and Reserved

77PART IIItem 5:

Market for Registrant's Common Equity, Related Stockholder Matters
and Issuer Purchases of Equity Securities

78Item 6:

Selected Financial Data

81Item 7:

Management's Discussion and Analysis of Financial Conditions and
Results of Operations

82Item 7A:

Quantitative and Qualitative Disclosures about Market
Risk

112Item 8:

Financial Statements and Supplementary
Data

113Item 9:

Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure

159Item 9A:

Controls and Procedures

159Item 9B:

Other Information

160PART IIIItem 10:

Directors, Executive Officers and Corporate
Governance

161Item 11:

Executive Compensation

161Item 12:

Security Ownership of Certain Beneficial Owners and Management and
Related Stockholder Matters

161Item 13:

Certain Relationships and Related Transactions, and Director
Independence

162Item 14:

Principal Accountant Fees and Services

162PART IVItem 15:

Exhibits and Financial Statement
Schedules

163Signatures

164Power of Attorney

165Index to Exhibits

166Certification of Chief Executive OfficerCertification of Chief Financial OfficerCertification of Chief Executive Officer and Chief Financial Officer


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PART I  FORWARD-LOOKING STATEMENTS

This Form 10-K contains "forward-looking" statements that involve risks and uncertainties.
These statements typically may be identified by the use of forward-looking words or phrases such as "may," "will," "believe," "expect," "intend," "anticipate," "predict," "should," "planned,"
"continue," "likely," "opportunity," "estimated," and "potential," the negative use of these words or other similar words. All forward-looking statements included in this document are based on our
current expectations, and we assume no obligation to update any such forward-looking statements. The Private Securities Litigation Reform Act of 1995 provides a "safe harbor" for such forward-looking
statements. In order to comply with the terms of the safe harbor, we note that a variety of factors could cause actual results and experiences to differ materially from the anticipated results or
other expectations expressed in such forward-looking statements. On October 28, 2010, we received a Complete Response Letter, or CRL, regarding the New Drug Application, or NDA, for
QNEXA® as a treatment for obesity. The CRL stated that in its current form, the NDA for QNEXA was not approvable. The CRL included the following areas: clinical, labeling, Risk Evaluation
and Mitigation Strategy, or REMS, safety update, and drug scheduling. In the clinical section of the CRL, the FDA requested a comprehensive assessment of topiramate's and QNEXA's teratogenic potential
including a detailed plan and strategy to evaluate and mitigate the potential teratogenic risks in women of childbearing potential taking the drug for the treatment of obesity. In addition, the FDA
asked us to provide evidence that the elevation in heart rate (mean 1.6 beats per minute on the top dose) associated with QNEXA does not increase the risk for major adverse cardiovascular events. The
FDA requested that we formally submit the results from the completed SEQUEL study (OB-305), a 52-week extension study for a subset of 675 patients who completed the previously
reported 56-week CONQUER study. The FDA reserved the right to comment further on proposed labeling. On REMS, the FDA requested that a discussion of an already-submitted REMS plan be
continued after we have submitted the written response. The agency also requested a safety update of any new adverse events be submitted to the NDA. Finally, the FDA stated that if approved, QNEXA
would be a Schedule IV drug due to the phentermine component. On January 19, 2011, we held an End-of-Review meeting with the FDA to discuss the items contained in
the CRL and the information we plan to include in the resubmission of the NDA for QNEXA. In anticipation of the meeting, we had provided a briefing document that included analyses integrating existing
non-clinical and clinical data to provide a comprehensive assessment of the teratogenic potential of topiramate. In addition, we provided several new analyses to demonstrate that QNEXA
does not increase the risk for major cardiovascular events, which analyses included cardiovascular data from our SEQUEL (OB-305) and Sleep Apnea (OB-204) studies. We also
provided a synopsis of the final study report for the SEQUEL study. No new clinical studies were requested in the CRL. At the meeting, presentations were made on the comprehensive assessment of the
teratogenic potential of topiramate and QNEXA, and evidence was presented that the increase in heart rate of 1.6 beats per minute does not increase the risk for major adverse cardiovascular events.
The discussion also included elements of our proposed REMS program for QNEXA. The FDA chose to focus the meeting on the discussion of teratogenic potential for topiramate, specifically the incidence
of oral clefts observed in the North American AED Pregnancy Registry and in the UK Epilepsy and Pregnancy Registry. As part of this meeting, the FDA requested that we assess the feasibility of
performing a retrospective observational study utilizing existing electronic healthcare databases to review fetal outcomes including the historical incidence of congenital malformations with an
interest in oral cleft and low birth weight (less than 2,500 gm) in the offspring of women who received prophylaxis treatment with 100 mg of topiramate for migraine during pregnancy, or the
Feasibility Assessment. Although no other requests for additional information or studies were made by the FDA at the meeting or in the CRL, there can be no assurance that the FDA will not request or
require us to provide additional information or undertake additional studies in connection
with the QNEXA NDA. In the QNEXA studies, which included 15 offspring from women exposed to QNEXA or topiramate, there were no reports of any congenital malformations or low birth weight. The timing
of the planned resubmission of the QNEXA NDA will be determined after agreement with the FDA is reached on the Feasibility Assessment and whether a retrospective observational study would be needed.
We expect to reach agreement with the FDA, and if

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deemed feasible, initiate the retrospective observational study on fetal outcomes within the next two months. It is our goal to resubmit the NDA for QNEXA to the FDA by the end of 2011. The risks and
uncertainties that may affect the operations, performance, development, and results of our business include but are not limited to: (1) our ability to complete the Feasibility Assessment made
by the FDA during our End-of-Review meeting held January 19, 2011. As no additional guidance was given by the FDA as to the potential parameters of the study it may be
difficult to interpret the definition of feasibility. In addition, we do not know if we will be able to determine if enough live births to mothers exposed to 100 mg of topiramate exist, the condition
of their records and the records of the infants, the ability to properly link records of the mother to those of the infant, the ability to determine other important infant health factors including but
not limited to the health status of the mother and the diagnosis for which she was prescribed topiramate, concomitant use of medications, smoking status during pregnancy, use of alcohol or illegal
substances during pregnancy, mothers weight, nutrition during pregnancy and folic acid supplementation, family history and any other information necessary to determine the nature of any malformations,
in particular oral cleft. If the FDA does not agree with our assessment, we may appeal the decision or amend the NDA to exclude women of childbearing potential; (2) the FDA's interpretation of
the data we submit relating to cardiovascular safety; (3) the FDA's interpretation of the data from our SEQUEL study (OB-305) and Sleep Apnea study (OB-204);
(4) that we may be required to conduct additional clinical trials; (5) impact on future sales based on contraindications contained in the label and extent of the REMS program;
(6) our history of losses and variable quarterly results; (7) substantial competition; (8) risks related to the failure to protect our intellectual property and litigation in
which we may become involved; (9) uncertainties of government or third party payer reimbursement; (10) our reliance on sole source suppliers; (11) our limited sales and marketing
efforts and our reliance on third parties; (12) failure to continue to develop innovative investigational drug candidates and drugs; (13) risks related to the failure to obtain United
States Food and Drug Administration, or FDA, or foreign authority clearances or approvals and noncompliance with FDA regulations; (14) our ability to demonstrate through clinical testing the
safety and effectiveness of our investigational drug candidates; (15) our dependence on the performance of our collaborative partners; (16) the timing of initiation and completion of
clinical trials and submissions to the FDA; (17) the volatility and liquidity of the financial markets; (18) our liquidity and capital resources; (19) our expected future
revenues, operations and expenditures; and (20) other factors that are described from time to time in our periodic filings with the Securities and Exchange Commission, or the SEC, including
those set forth in this filing as "Item 1A. Risk Factors."

Item 1.Business

Overview

VIVUS, Inc. is a biopharmaceutical company, incorporated in 1991 as a California corporation and reincorporated in 1996 as a
Delaware corporation, dedicated to the development and commercialization of therapeutic drugs for large underserved markets, including obesity and related morbidities, such as sleep apnea and diabetes
and men's sexual health. With respect to obesity, it is estimated that the potential worldwide pharmaceutical market for obesity could approach $5 billion annually. Annual sales of approved
drugs for diabetes currently exceed $10 billion. There are currently no approved pharmaceutical therapies for sleep apnea; however, the sales of devices and related consumables used to treat
sleep apnea exceed $2 billion annually. The indications targeted by our investigational drug candidate as a treatment for erectile dysfunction represent a projected market greater than
$1 billion annually.

Currently,
we have one investigational drug candidate, QNEXA, which has been submitted for approval as a treatment for weight loss in the U.S. and the European Union. In the U.S., we
received a CRL for QNEXA in October 2010, which contained requests for additional information. We held an End-of-Review meeting with the FDA on January 19, 2011 to
discuss its requests and our planned resubmission of the NDA for QNEXA. The FDA has requested that we perform the Feasibility Assessment, which is currently in process. We also have investigational
drug candidates in various stages

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of
clinical development for various indications related to obesity, erectile dysfunction and other diseases.

Recent Developments

On January 19, 2011, we held an End-of-Review meeting with the FDA to discuss our planned response to
the CRL received on October 28, 2010, regarding the New Drug Application for QNEXA as a treatment for obesity. The CRL stated that in its current form, the NDA for QNEXA was not approvable. The
CRL included the following areas: clinical, labeling, REMS, safety update, and drug scheduling. In the clinical section of the CRL, the FDA requested a comprehensive assessment of topiramate's and
QNEXA's teratogenic potential including a detailed plan and strategy to evaluate and mitigate the potential teratogenic risks in women of childbearing potential taking the drug for the treatment of
obesity. In addition, the FDA asked us to provide evidence that the elevation in heart rate (mean 1.6 beats per minute on the top dose) associated with QNEXA does not increase the risk for major
adverse cardiovascular events. The FDA requested that we formally submit the results from the completed SEQUEL study (OB-305), a 52-week extension study for a
subset of 675 patients who completed the previously reported 56-week CONQUER study. The FDA reserved the right to comment further on proposed labeling. On REMS, the FDA requested that a
discussion of an already-submitted REMS plan be continued after we have submitted the written response. The agency also requested a safety update of any new adverse events be submitted to the NDA.
Finally, the FDA stated that if approved, QNEXA would be a Schedule IV drug due to the phentermine component. In anticipation of the meeting held with the FDA on January 19, 2011, we had
provided a briefing document that included analyses integrating existing non-clinical and clinical data to provide a comprehensive assessment of the teratogenic potential of topiramate. In
addition, we provided several new analyses to demonstrate that QNEXA does not increase the risk for major cardiovascular events, which analyses included cardiovascular data from our SEQUEL
(OB-305) and Sleep Apnea (OB-204) studies. We also provided a synopsis of the final study report for the SEQUEL study. No new clinical studies were requested in the CRL. At the
meeting, presentations were made on the comprehensive assessment of the teratogenic potential of topiramate and QNEXA, and evidence was presented that the increase in heart rate of 1.6 beats per
minute does not increase the risk for major adverse cardiovascular events. The discussion also included elements of our proposed REMS program for QNEXA. The FDA chose to focus the meeting on the
discussion of teratogenic potential for topiramate. As part of this meeting, the FDA requested that we complete the Feasibility Assessment. Although no other requests for additional information or
studies were made by the FDA at the meeting or in the CRL, there can be no assurance that the FDA will not request or require us to provide additional information or undertake additional studies in
connection with the QNEXA NDA. In the QNEXA studies, which included 15 births from women exposed to QNEXA or topiramate, there were no reports of any congenital malformations or low birth weight. The
timing of the planned resubmission of the QNEXA NDA will be determined after agreement with the FDA is reached on the Feasibility Assessment and whether a retrospective study would be needed. We
expect to reach agreement with the FDA, and if deemed feasible, initiate the retrospective observational study on fetal outcomes within the next two months. It is our goal to resubmit the NDA for
QNEXA to the FDA by the end of 2011.

On
October 1, 2010, we entered into a definitive Asset Purchase Agreement with Meda AB, or Meda, to sell certain rights and assets related to MUSE, transurethral alprostadil, for
the treatment of erectile dysfunction, or the MUSE Transaction. Meda has been our European distributor of MUSE since 2002. The assets sold in the MUSE Transaction include the U.S. and foreign MUSE
patents, existing inventory, and the manufacturing facility located in Lakewood, New Jersey. We retained all of the liabilities associated with the pre-closing operations and products of
the MUSE business and the accounts receivables for pre-closing MUSE sales. The transaction closed on November 5, 2010. Prior to the closing of the MUSE Transaction, we regained all
of the rights to MUSE and avanafil held by Deerfield Management Company, L.P., and affiliates, and Crown Bank, N.A., or Crown.

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On
October 15, 2010, in preparation for the closing of the MUSE Transaction and in accordance with the terms of the agreements with Crown, we paid $4.8 million to Crown in
satisfaction of all obligations owed to them under these agreements. As a result, the security interests and Certificate of Deposit held by Crown were terminated in our favor. On October 21,
2010, we exercised the Option under the
Option and Put Agreement with the Deerfield Affiliates and the Deerfield Sub, dated April 3, 2008, and an Amended and Restated Option and Put Agreement dated March 16, 2009, or the OPA,
and we paid an aggregate amount totaling $27.1 million, which consisted of the Base Option Price of $25 million, less the Option Premium Adjustment of $2 million, plus the Cash
Adjustment of $2.8 million and the Royalty Adjustment of $1.3 million. These payments satisfied all of the financial obligations under the Funding and Royalty Agreement, or FARA, and the
OPA. As a result, all of the outstanding shares and the $2.8 million of cash of the Deerfield Sub are owned by us, all of the outstanding loans owed by the Deerfield Sub have been repaid and
the security interests in the collateral related to MUSE and avanafil held by the Deerfield Sub and the Deerfield Affiliates as part of the FARA and OPA were terminated. In December 2010, the
Deerfield Sub was dissolved.

Under
the terms of the MUSE Transaction, we received an upfront payment of $22 million upon the closing, on November 5, 2010, and are eligible to receive an additional
$1.5 million based on future sales of MUSE, provided that certain sales milestones are reached. Meda is now responsible for the manufacturing, selling and marketing of MUSE. Meda also assumed
all post-closing expenses and liabilities associated with MUSE. We have agreed not to develop, manufacture or sell any transurethral erectile dysfunction drugs for a period of three years
following the closing of the MUSE Transaction. The assets and liabilities and results of operations associated with MUSE have been reported as discontinued operations for all periods presented.

On
December 17, 2010, we filed a Marketing Authorization Application, or MAA, with the European Medicines Agency, or EMA, for QNEXA Controlled-Release Capsules in the European
Union, or EU. The proposed indication in the EU is for the treatment of obesity, including weight loss and maintenance of weight loss, and should be used in conjunction with a mildly hypocaloric diet.
If approved in the EU, QNEXA could be recommended for obese adult patients (BMI 3 30 kg/m2), or overweight patients (BMI
3 27 kg/m2) with weight-related co-morbidities such as hypertension, type 2 diabetes, dyslipidemia, or central adiposity (abdominal
obesity). In Europe, approximately 150 million adults are considered overweight or obese, and the prevalence is rising rapidly. According to EMA guidelines for medicinal products used in weight
control, a demonstration of weight loss of at least 10% of baseline weight, which is at least statistically greater than that associated with placebo, is considered to be a valid primary efficacy
criterion. We believe QNEXA has met this efficacy criterion set by the EMA for obesity therapies. In addition, the mean weight loss for the mid- and top-dose of QNEXA at the
end of two years was 10.4% and 11.4%, respectively, which met the efficacy benchmark set by the EMA for obesity therapies. These results were shown to be sustained over a two-year period
and were associated with significant improvements in weight-related co-morbidities such as hypertension, dyslipidemia and diabetes. The EMA filing is comprised of data from over 4,500
overweight or obese patients with a broad range of weight-related co-morbidities. Two-year, double-blind data from SEQUEL (OB-305) were also included in the filing
to demonstrate durability of treatment response and long-term safety. The EMA's review of QNEXA will follow their centralized marketing authorization procedure. If approved, QNEXA could
receive marketing authorization in all 27 EU member countries. The MAA was officially validated for central procedure on January 19, 2011.

Our Future

Our goal is to build a successful biopharmaceutical company through the development and commercialization of innovative proprietary
drugs. We intend to achieve this by:



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It
is our objective to become a leader in the development and commercialization of drugs for large underserved markets. We believe we have strong intellectual property supporting several
opportunities in obesity and related disorders, such as sleep apnea and diabetes, and men's sexual health. Our future growth depends on our ability to further develop and obtain regulatory approval of
our investigational drug candidates for indications that we have studied, or plan to study, as well as in-licensing and product line extensions.

We
have funded operations primarily through private and public offerings of our common stock, through the sale of the rights to Evamist and through product sales of MUSE (alprostadil).
We expect to generate future net losses due to increases in operating expenses as our various investigational drug candidates are advanced through the various stages of clinical development and for
pre-commercialization activities. In connection with the sale of Evamist, to date we have
received an aggregate of $150 million. The sale of Evamist was a unique transaction. An initial $10.0 million was paid at closing and $140 million was paid upon the FDA's approval
of the Evamist NDA. These payments were non-refundable and were originally recorded as deferred revenue and were recognized as license and other revenue ratably over a
21.5-month period, from August 1, 2007 to May 15, 2009. All of the revenue deferred from the Evamist sale has been recognized. As of December 31, 2010, we have
incurred a cumulative deficit of $300.1 million and expect to incur operating losses in future years.

Our Investigational Drug Candidates

Our investigational drug pipeline includes two late-stage clinical investigational drug candidates. One of these
investigational drug candidates, QNEXA, has completed Phase 3 clinical trials for obesity and Phase 2 clinical trials for diabetes and obstructive sleep apnea. We submitted an NDA to the
FDA for QNEXA in December 2009. On October 28, 2010, we received a CRL from the FDA regarding the QNEXA NDA stating that the NDA could not be approved in its present form. We are currently
working with the FDA on their request for information contained in the CRL. In the EU, the MAA for QNEXA is currently under review through the centralized procedure. Avanafil has completed three
pivotal Phase 3 trials for erectile dysfunction. Our investigational drug candidates are summarized as follows:

Drug

Indication

Status

Commercial rightsQNEXA (phentermine and topiramate CR)

Obesity

Phase 3 studies completed; NDA submitted; CRL received

WorldwideQNEXA (phentermine and topiramate CR)

Obstructive Sleep Apnea

Phase 2 study completed

WorldwideQNEXA (phentermine and topiramate CR)

Diabetes

Phase 2 study completed

WorldwideAvanafil (PDE5 inhibitor)

Erectile dysfunction

Phase 3 completed; NDA preparation and MAA submission in progress

Worldwide license from Mitsubishi Tanabe Pharma Corporation (ex. certain Asian markets)


QNEXA for Obesity

Obesity is a chronic disease condition that affects millions of people and often requires long-term or invasive treatment
to promote and sustain weight loss. In the National Health and Nutrition

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Examination
Survey, or NHANES, conducted for 2007-2008, 68% of adults in the U.S. (72.3% of men and 64.1% of women) were classified as overweight, defined as a body mass index, or BMI >25, and 33.8% were obese
(BMI>30). Data from NHANES also found that almost 17% of school children were
obese and almost 32% were overweight for the 2007-2008 time period. The percentage of American men and women classified as overweight and obese has more than
doubled since 1962. Researchers fear that the percentage of American adults that are obese could climb as high as 43% in the next 10 years. Obesity is the second leading cause of preventable
death in the U.S.. According to a study performed by the Centers for Disease Control and Prevention, or CDC, as reported in the Journal of the American Medical Association, an estimated 112,000 excess
deaths a year in the U.S. are attributable to obesity. Additionally, Americans spend more than $30 billion annually on weight-loss products and services.

QNEXA
is our proprietary oral investigational drug candidate for the treatment of obesity, incorporating low doses of active ingredients from two previously approved drugs, phentermine
and topiramate. We believe that by combining these compounds, QNEXA targets excessive appetite and high threshold for satiety, or the feeling of being full, the two main mechanisms that impact eating
behavior. QNEXA is a once-a-day capsule containing a proprietary formulation of controlled release phentermine and topiramate. Our first U.S patent on QNEXA (U.S. 7,056,890 B2)
and our EU patent on QNEXA (EU EP 1187603) both expire in 2020.

EQUIP (OB-302) AND CONQUER (0B-303) One-Year Phase 3 Studies

The QNEXA development program included two large Phase 3 randomized, double-blind, placebo-controlled, 3-arm,
prospective studies across 93 centers comparing QNEXA to placebo over a 56-week treatment period. All Phase 3 studies utilized our once-a-day formulation of
QNEXA, which at top-dose contains 15 mg phentermine and 92 mg of a proprietary controlled release formulation of topiramate. The Phase 3 studies were designed to prospectively
demonstrate the safety and efficacy of QNEXA in obese and overweight patients with different baseline characteristics. The co-primary endpoints for these studies evaluated the differences
between treatments in mean percent weight loss from baseline to the end of the treatment period and the differences between treatments in the percentage of patients achieving weight loss of 5% or
more. Patients were asked to follow a hypocaloric diet representing a 500-calorie/day deficit and were advised to implement a simple lifestyle modification program.

The
first year-long Phase 3 study, known as EQUIP, enrolled 1,267 morbidly obese patients (1,050 females and 217 males) with a BMI that equaled or exceeded 35 kg/m2
with or without controlled co-morbidities. The average baseline BMI of the study population was 42.1 kg/m2 and baseline weight was 256 pounds. Patients had a 4-week dose
titration period followed by 52 weeks of treatment, with patients randomized to receive once-a-day treatment with low-dose QNEXA, full-dose QNEXA
or placebo. Weight loss results from the study are summarized as follows:

ITT-LOCF

CompletersEQUIP (OB-302) 56 weeks

Placebo
(n=498)

QNEXA
low-dose
(n=234)

QNEXA
top-dose
(n=498)

Placebo
(n=241)

QNEXA
low-dose
(n=138)

QNEXA
top-dose
(n=301)Mean weight loss (%)


1.6
%

5.1
%*

11
%

2.5
%

7
%*

14.7
%*Greater than or equal to 5% weight loss rate


17
%

45
%*

67
%*

26
%

59
%*

84
%*


ITT-LOCF:
Intent-to-treat with last observation carried forward *p<0.0001
vs. placebo


The
EQUIP study met the co-primary endpoints by demonstrating that patients treated with top-dose and low-dose QNEXA had an average weight loss of 11%
and 5.1%, respectively, as compared to weight loss of 1.6% in the placebo group (ITT-LOCF p<0.0001). Average weight loss was 37 pounds and 18 pounds with top-dose
QNEXA and low-dose QNEXA, respectively, as compared to 6

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pounds
in the placebo group. The proportion of patients losing 5% or more of their initial body weight was 67% for top-dose, 45% for low-dose and 17% for placebo
(ITT-LOCF p<0.0001).

The
most common drug-related adverse events reported in the EQUIP study for the top-dose, low-dose and placebo group were tingling of the extremities,
dry mouth, altered taste, headache and constipation. A significantly greater proportion of patients completed the study on QNEXA as compared to placebo patients. Overall average completion rates were
59%, 57% and 47% for patients taking top-dose QNEXA, low-dose QNEXA and placebo, respectively.

The
second year-long Phase 3 trial, known as CONQUER, enrolled 2,487 overweight and obese adult patients (1,737 females and 750 males) with BMI's from 27 kg/m2 to 45
kg/m2 and at least two co-morbid conditions, such as hypertension, dyslipidemia and type 2 diabetes. The average baseline BMI of the study population was 36.6 kg/m2 and baseline
weight was 227 pounds. Patients had a 4-week dose titration period followed by 52 weeks of treatment, with patients randomized to receive once-a-day
treatment with top-dose QNEXA, mid-dose QNEXA or placebo. Weight loss results from the study are summarized as follows:

ITT-LOCF

CompletersCONQUER (OB 303) 56 weeks

Placebo
(n=979)

QNEXA
mid-dose
(n=488)

QNEXA
top-dose
(n=981)

Placebo
(n=564)

QNEXA
mid-dose
(n=344)

QNEXA
top-dose
(n=634)Mean weight loss (%)


1.8
%

8.4
%*

10.4
%*

2.4
%*

10.5
%*

13.2
%*Greater than or equal to 5% weight loss rate


21
%

62
%*

70
%*

26
%

75
%*

85
%*


*p<0.0001
vs. placebo


The
CONQUER study also met the co-primary endpoints by demonstrating that patients treated with top-dose and mid-dose QNEXA had an average weight loss
of 10.4% and 8.4%, respectively, as compared to weight loss of 1.8% in the placebo group (ITT-LOCF p<0.0001). Average weight loss was 30 pounds and 24 pounds with
top-dose QNEXA and mid-dose QNEXA, respectively, as compared to 6 pounds in the placebo group. The proportion of patients losing 5% or more of their initial body weight was 70%
for top-dose, 62% for mid-dose and 21% for placebo (ITT-LOCF p<0.0001).

The
most common drug-related adverse events reported in the CONQUER study for the top-dose, mid-dose, and placebo group were tingling of the
extremities, dry mouth, altered taste, headache and constipation. A significantly greater proportion of patients completed the study on QNEXA as compared to placebo patients. Overall average
completion rates were 64%, 69%, and 57% for patients taking top-dose QNEXA, mid-dose QNEXA and placebo, respectively.

SEQUEL (0B-305) one-year extension study

We also conducted a one-year extension study of a subset of patients who completed the 56-week CONQUER study.
The SEQUEL study was a double-blind, placebo-controlled, 3-arm, prospective study across 36 centers comparing QNEXA to placebo over an additional 52-week treatment period for a
total treatment duration of 108 weeks, or two years. Patients in SEQUEL continued in a blinded fashion to receive the same treatment they were receiving when they completed the CONQUER study.
The co-primary endpoints for this study were the differences between treatments in mean weight loss and percent weight loss from start of the OB-303 study (baseline) to the end
of the treatment period (two-years). Secondary endpoints include the differences between treatments in the percentage of patients achieving weight loss of 5% and 10% and the change in
waist circumference. Patients were asked to continue a hypocaloric diet representing a
500-calorie/day deficit and were advised to implement a simple lifestyle modification program.

SEQUEL
included 675 obese or overweight patients, all of whom had two or more weight related co-morbidities and an average baseline BMI of 36.1. There was no titration
necessary for patients rolling over to OB-305 as they continued to receive blinded treatment. The total study period was

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108 weeks.
The purpose of this study was to provide long-term safety and efficacy data to support the MAA filing in Europe.

Patients
in the study taking the top dose of QNEXA achieved and maintained average weight loss through two years of 26 pounds (ITT-LOCF). Consistent with the
first-year experience, QNEXA therapy was well tolerated, with no new or unexpected adverse events. The most common side effects seen were constipation, tingling, dry mouth, altered taste
and insomnia.

Weight
loss with QNEXA in SEQUEL was associated with statistically significant improvements in weight-related co-morbidities such as hypertension, dyslipidemia and diabetes.
Among patients without diabetes at baseline, the incidence of new onset of type 2 diabetes was reduced by 54% and 76% (mid- and top-dose, respectively) as compared to
placebo.

Specific
SEQUEL findings include the following primary endpoints: Patients taking top- and mid-dose QNEXA achieved and maintained weight loss over two years of
11.4% and 10.4% of their initial body weight, respectively, as compared to placebo-treated patients with 2.5% weight loss (ITT-LOCF, p<0.0001). A majority of all patients taking
QNEXA exceeded 10% weight loss, the goal established by the National Institutes of Health, or NIH, to decrease the severity of obesity-associated risk factors. The percentage of patients achieving
categorical weight loss of at least 5%, 10% and 15% on both QNEXA doses was statistically significant compared to placebo:

Categorical Weight Loss (ITT-LOCF)

5%

10%

15%Top-dose


79
%*

54
%*

32
%*Mid-dose


75
%*

50
%*

24
%*Placebo


30
%

12
%

7
%


*p<0.0001
vs placebo


Treatment-emergent
serious adverse event rates in SEQUEL were low (top-dose = 4.1%; mid-dose = 2.6%) and similar to placebo (4%), with no
drug-related serious adverse events reported.

The
completion rate in SEQUEL was approximately 83% for both QNEXA doses and 86% for the placebo group. Discontinuations due to adverse events were 3.9% and 4.1% for the mid-
and top-dose, respectively, and 2.6% for the placebo group; with no single adverse event leading to discontinuation in more than 1% of patients. Additionally, SEQUEL data confirms previous
safety findings, with no evidence of suicidality and no reports of suicidal attempts or behavior. Depression assessments, as measured by the PHQ-9 clinical depression scale, improved from
baseline for all treatment groups. The incidence of targeted medical events for sleep disorders, depression, anxiety, cardiac disorders and cognitive disorders in SEQUEL was lower than observed during
the one-year CONQUER study. Similar to previously presented data, effects of QNEXA in SEQUEL on heart rate were small and seen in conjunction with improvements in blood pressure from
baseline. There were no clinically relevant decreases of serum bicarbonate in QNEXA -treated patients compared to placebo in year two of SEQUEL.

Across
the entire QNEXA development program (4,323 patients), including the two-year data in SEQUEL, serious cardiovascular and neurovascular adverse event rates in patients
taking QNEXA were similar to placebo with a relative risk of 0.54 (95% CI: 0.29-0.98). No teratogenic effects were observed across the entire development program in patients taking QNEXA.

The
primary efficacy endpoint for Phase 3 weight loss trials in the U.S., as recommended by the FDA, is at least a 5% mean reduction in baseline body weight compared to placebo or
at least 35% of patients losing 5% or more of their baseline body weight. In Europe, the Committee for Medicinal Products for Human Use of the European Medicines Agency has recommended that
demonstration of significant weight loss of at least 10% of baseline weight is considered to be a valid primary endpoint for anti-obesity drugs. The FDA and foreign authorities require
pivotal obesity studies to be conducted for at least one year. Although the results of our pivotal Phase 3 obesity trials met these current

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guidelines
for efficacy, there can be no assurance that these results will be acceptable to the FDA or the EMA.

We
completed a "Thorough QT," or TQT, prolongation study evaluating patients taking QNEXA. The QT interval represents the time for both ventricular depolarization and repolarization to
occur in the heart, and therefore roughly estimates the duration of an average ventricular action potential. If abnormally prolonged or shortened, there is a risk of developing ventricular
arrhythmias. The study was completed with no drug-related signal for QT prolongation. We also conducted studies evaluating cognitive and psychomotor functions in patients taking QNEXA.
Patients underwent complex and extensive cognitive and psychomotor testing using validated, FDA recognized testing methodologies. There was no clinically relevant change in overall cognitive function
or effect on psychomotor skills seen in patients taking QNEXA.

We
have entered into a Master Services Agreement and related Task Orders with Medpace, Inc., or Medpace, pursuant to which Medpace will perform certain clinical research services
in connection with the clinical trials for QNEXA and work related to the preparation of the NDA for avanafil. Our aggregate payment obligations under the agreement for services entered into during
2007 through 2010, out of pocket expenses and pass through costs total approximately $80.2 million, of which we have paid approximately $75.5 million through December 31, 2010. We
have agreed to defend and indemnify Medpace against third party claims arising from the services other than claims resulting from Medpace's negligence, willful misconduct, violation of law or material
breach of the Master Service Agreement or a Task Order. We can terminate the agreement at any time without cause. Medpace may terminate the agreement following our material breach of the agreement
that remains uncured.

QNEXA for Obstructive Sleep Apnea

Obstructive sleep apnea, or OSA, is a condition in which patients momentarily pause or stop breathing altogether while sleeping. The
pauses in breathing can occur frequently throughout the course of sleep. Sleep apnea is often undiagnosed and can lead to severe health problems and even death if left untreated. It is estimated that
about 18 million people in the U.S. have obstructive sleep apnea. Currently, there are no approved pharmacologic treatments for OSA. Modafinil is approved for the treatment of residual daytime
sleepiness associated with OSA, but does not specifically treat the sleep apnea condition.

In
January 2010, we announced positive results from a Phase 2 study evaluating the safety and efficacy of QNEXA for the treatment of OSA. This Phase 2 study
(OB-204) was a single-center, randomized, double-blind, placebo-controlled parallel group trial including 45 obese men and women (BMI 30 to 40 kg/m2 inclusive), 30 to 65 years of
age with OSA (apnea-hypopnea index, or AHI, greater than or equal to 15 at baseline), who had not been treated with, or who were not compliant with continuous positive airway pressure, or CPAP, within
three months of screening. Patients were randomized to placebo or top-dose QNEXA. CPAP is the current standard of care treatment for the majority of patients with moderate or severe OSA,
defined as an apnea-hypopnea index, or AHI, of 15 or more events per hour. Although CPAP is reported to be effective in treating OSA when properly and consistently used, compliance (as defined by use
for at least 4 hours per night, on at least 70% of nights) may be as low as 50-60%.

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In the OB-204 study, patients underwent a four-week dose titration followed by 24 weeks of additional treatment. All patients were
also provided with a lifestyle modification program focusing on diet and exercise. Overnight polysomnography in a sleep laboratory was performed at baseline, Week 8 and Week 28. The
primary endpoint was the change in AHI between baseline and Week 28; secondary endpoints included weight loss, improvement in overnight oxygen saturation and reduction in blood pressure.

The
study demonstrated statistically significant improvement in AHI in patients with OSA treated with QNEXA for 28 weeks. QNEXA-treated patients also experienced significant
weight loss, improvements in blood pressure, and overnight blood oxygen saturation.

Highlights
of the study include:



Sleep
apnea is one of the leading co-morbidities associated with obesity and research has shown that weight loss can improve OSA. QNEXA treatment was
well-tolerated with no serious adverse events reported in the QNEXA arm; the most common side effects were dry mouth, altered taste and sinus infection.

QNEXA for Diabetes

Diabetes is a significant worldwide disease. Based on the fourth edition of theDiabetes
Atlaspublished in 2009, the International Diabetes Federation estimated that in 2008 there were 285 million people with diabetes worldwide, with 27 million of
those people living in the U.S. Diabetes, mostly type 2 diabetes, was projected to reach 6.6% of the world's adult population in 2010, with almost 70% of the total in developing countries.
Based on the National Diabetes Fact Sheet, 2011, the CDC estimates that nearly 26 million people in the U.S. have diabetes, mostly type 2 diabetes, and that 79 million people have
pre-diabetes, a condition that puts people at increased risk of diabetes. Type 2 diabetes is characterized by inadequate response to insulin and/or inadequate secretion of insulin
as blood glucose levels rise. Currently approved therapies for type 2 diabetes are directed toward correcting the body's inadequate response with oral or injectable medications, or directly
modifying insulin levels through injection of insulin or insulin analogs.

The
currently approved oral medications for type 2 diabetes include insulin releasers such as glyburide, insulin sensitizers such as Actos and Avandia, inhibitors of glucose
production by the liver such as metformin, DPP-IV inhibitors like Januvia, as well as Precose and Glyset, which slow the uptake of glucose from the intestine. The worldwide market for
diabetes medications was estimated at $24 billion in 2007, according to IMS Health. However, it is estimated that a significant portion of type 2 diabetics fail oral medications and
require injected insulin therapy. Current oral medications for type 2 diabetes have a number of common drug-related side effects, including hypoglycemia, weight gain and edema.
Numerous pharmaceutical and biotechnology companies are seeking to develop insulin sensitizers, novel insulin formulations and other therapeutics to improve the treatment of diabetes.

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Previous
clinical studies of topiramate, a component of QNEXA, in type 2 diabetics resulted in a clinically meaningful reduction of hemoglobin A1c, a measure used to determine treatment
efficacy of anti-diabetic agents.

In
December 2008, we announced the results of our DM-230 diabetes study, a 56-week, Phase 2 clinical trial in 130 type 2 diabetics conducted at ten
sites in the U.S.. Patients treated with QNEXA had a reduction in hemoglobin A1c of 1.6%, from 8.8% to 7.2%, as compared to 1.1% from 8.5% to 7.4% in the placebo group (ITT LOCF p=0.0381) at
56 weeks. Patients in the study were actively managed according to American Diabetes Association, or ADA, standards of care with respect to diabetes medications and lifestyle modification. For
patients treated with placebo, increases in the number and doses of concurrent anti-diabetic medications were required to bring about the observed reduction in HbA1c. By contrast,
concurrent anti-diabetic medications were reduced over the course of the trial in patients treated with QNEXA (p<0.05).

Fasting
plasma glucose levels were reduced in patients treated with QNEXA from 176 mg/dL to 133 mg/dL, as compared to a decrease from 171 mg/dL to 145 mg/dL
for the placebo group (p=0.02). Over 56 weeks, patients treated with QNEXA also lost 9.4% of their baseline body weight, or 20.5 pounds, as compared to 2.7%, or 6.1 pounds, for the placebo
group (p<0.0001). Sixty-five percent of the QNEXA patients lost at least 5% of their body weight, as compared to 24% in the placebo group (p<0.001), and 37% of the
QNEXA patients lost at least 10% of their body weight, as compared to 9% of patients in the placebo group (p<0.001). Patients treated with QNEXA had reductions in blood pressure,
triglycerides and waist circumference. Both treatment groups had a study completion rate of greater than 90%.

The
most common drug-related side effects reported were tingling, constipation and nausea. Patients on antidepressants such as SSRI's or SNRI's were allowed to participate in
the studies. Patients were monitored for depression and suicidality using the PHQ-9 questionnaire, a validated mental health assessment tool agreed to by the FDA for use in our studies.
Patients treated with QNEXA demonstrated greater improvements in PHQ-9 scores from baseline to the end of the study than patients in the placebo group.

Despite
a mean baseline HbA1c level of 8.8%, 53% of the patients treated with QNEXA were able to achieve the ADA recommended goal of 7% or lower, versus 40% of the patients in the
placebo arm (p<0.05). The incidence of hypoglycemia in the treatment and placebo arms was similar (12% and 9%, respectively). Patients in the QNEXA arm experienced no treatment-related
serious adverse events.

The
DM-230 Phase 2 study enrolled 130 patients, who completed OB-202, our Phase 2 study for the treatment of obesity, at 10 study sites to continue
in a blinded fashion as previously randomized for an additional 28 weeks. The results of the DM-230 study included assessments from the start of the OB-202 study through
the end of the DM-230 study in this population, for a total treatment period of 56 weeks. We also studied the effect of QNEXA on well-controlled diabetics as part of
OB-303. The results were consistent and supportive of the Phase 2 results.

QNEXA for Other Indications

We believe QNEXA may be helpful in treating other obesity-related diseases including nonalcoholic steatohepatitis or its precursor,
nonalcoholic fatty liver disease, also known as fatty liver disease. QNEXA may also be helpful in treating hyperlipidemia, or an elevation of lipids (fats) in the bloodstream. These lipids include
cholesterol, cholesterol esters (compounds), phospholipids and triglycerides.

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Avanafil for Erectile Dysfunction

Erectile dysfunction, or ED, is defined as the inability to attain or maintain an erection sufficient for intercourse. ED was reported
by 52% of men between the ages of 40 to 70 in the Massachusetts Male Aging Study, with the incidence increasing with age. Erectile dysfunction, frequently associated with vascular problems, is
particularly common in men with diabetes and in those who have had a radical prostatectomy for prostate cancer. PDE5 inhibitors such as sildenafil (Viagra), vardenafil (Levitra) and tadalafil
(Cialis), which inhibit the breakdown of cyclic guanosine monophosphate, have been shown to be effective oral treatments for ED.

The
worldwide sales in 2010 of PDE5 inhibitor products for the treatment of ED were in excess of $4.1 billion, including approximately $1.9 billion in sales of Viagra,
approximately $1.7 billion in sales of Cialis and over $500 million in estimated sales of Levitra. Based on the aging population and the desire to maintain an active sexual lifestyle, we
believe the market for PDE5 inhibitors will continue to grow.

Avanafil
is an oral PDE5 inhibitor investigational drug candidate that we licensed from Tanabe Seiyaku Co., Ltd., or Tanabe, in 2001. In October 2007, Tanabe and Mitsubishi
Pharma Corporation completed their merger and announced their name change to Mitsubishi Tanabe Pharma Corporation, or MTPC. Our U.S. patent on avanafil (U.S. 6,656,935) expires in 2020.

We
have exclusive worldwide development and commercialization rights for avanafil with the exception of certain Asian markets.

Pre-clinical
and clinical data suggest that avanafil:



In
November 2009, we announced results from the first of several pivotal Phase 3 studies of avanafil. The first study, REVIVE (TA-301), was a randomized, double-blind,
placebo-controlled Phase 3 study of avanafil in 646 men. Participants in the study had ED for at least six months; 72% of study participants had tried at least one other ED treatment. Patients
underwent a four-week, non-treatment run-in period followed by 12 weeks of treatment with one of three doses of avanafil: 50 mg, 100 mg and
200 mg or placebo. Patients were instructed to attempt sexual intercourse 30 minutes after taking avanafil, with no restrictions on food or alcohol consumption. The primary endpoints of the
study were improvement in erectile function as measured by the Sexual Encounter Profile, or SEP, and improvement in the International Index of Erectile Function, or IIEF, score; secondary endpoints
included patient satisfaction with erections and with sexual experience. This Phase 3 study was conducted under a Special Protocol Assessment, or SPA, with the FDA.

The
REVIVE study met all primary endpoints across the three doses studied by demonstrating statistically significant improvement in erectile function as measured by the SEP and
improvement in the IIEF score. Highlights of the study include:



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Patients
on all three dose levels achieved a dose-related overall improvement in erectile function, as measured by improvement in the IIEF. IIEF scores range from
0-30 and measure the severity of erectile dysfunction as follows: severe dysfunction is less than or equal to 10; moderate is 11-16; and mild/minimal is 17-25. IIEF
results of the study were:

Baseline

End of
TreatmentPlacebo


12.4


15.3Avanafil 50 mg


12.7


18.1Avanafil 100 mg


12.6


20.9Avanafil 200 mg


12.7


22.2


(p</=0.001
vs. placebo)


Patients
on avanafil had erections sufficient for vaginal penetration as measured by the Sexual Encounter Profile question number 2 (SEP2):

Baseline

End of
TreatmentPlacebo


47
%

54
%Avanafil 50 mg


45
%

64
%Avanafil 100 mg


46
%

74
%Avanafil 200 mg


48
%

77
%


(p<0.001
vs. placebo)


Patients
taking avanafil experienced successful intercourse as measured by the Sexual Encounter Profile question 3 (SEP3):

Baseline

End of
TreatmentPlacebo


13
%

27
%Avanafil 50 mg


13
%

41
%Avanafil 100 mg


14
%

57
%Avanafil 200 mg


12
%

57
%


(p<0.001
vs. placebo)


The
most commonly reported side effects in patients taking avanafil (all doses combined) included headache (7% vs. 1.2% placebo), flushing (4.6% vs. 0% placebo) and nasal congestion
(2.3% vs. 1.2%). There were no reports of visual disturbances such as "blue vision."

In
January 2010, we announced new data from an analysis of REVIVE TA-301. Patients who attempted intercourse within 15 minutes of dosing were successful 67%, 69% and 72% of
the time on 50, 100 and 200 mg of avanafil, respectively, as compared to 29% of the patients on placebo (p<0.05).

We
completed a Phase 1 "Thorough QT", or TQT, study evaluating 100 mg and 800 mg of avanafil compared to placebo and a known positive control. The study was
successfully completed with no concern associated with QT prolongation.

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In
June 2010, we announced results from the Phase 3 REVIVE-Diabetes (TA-302) study, which evaluated the safety and efficacy of avanafil for the treatment of erectile
dysfunction, or ED, in men with type 1 and type 2 diabetes. The REVIVE-Diabetes study met all three primary endpoints across the two doses studied by demonstrating statistically
significant improvement in erectile function as measured by the Sexual Encounter Profile, or SEP, and improvement in the International Index of Erectile Function, or IIEF score. The study also
demonstrated a favorable side effect profile and successful intercourse (as measured by SEP 3) in as early as 15 minutes and beyond six hours after dosing, without any restrictions for food or
alcohol intake.

Highlights
of the REVIVE-Diabetes study include:



The
REVIVE-Diabetes study was a randomized, double-blind, placebo-controlled efficacy and safety study that evaluated two doses of avanafil in men with diabetes and a history of ED. The
results of the phase 3 study showed:

Patients
achieved an overall statistically significant improvement in erectile function, as measured by the IIEF. EF-Domain scores range from 0-30 and measure the
severity of erectile dysfunction as follows: severe dysfunction is less than or equal to 10; moderate is 11-16; and mild/minimal is 17-25. Results of the study were:

Baseline

End of
TreatmentPlacebo


11.3


13.2Avanafil 100 mg


11.2


15.8
*Avanafil 200 mg


11.9


17.3
**


*(p=0.002
100mg vs. placebo change from baseline)**(p<0.001
200mg vs. placebo change from baseline)


Patients
on avanafil had erections sufficient for penetration as measured by the SEP question 2:

Baseline

End of
TreatmentPlacebo


36
%

42
%Avanafil 100 mg


32
%

54
%*Avanafil 200 mg


42
%

63
%*


*(p<0.001
active vs. placebo change from baseline)


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Patients
taking avanafil experienced successful intercourse as measured by the SEP question 3:

Baseline

End of
TreatmentPlacebo


10
%

20
%Avanafil 100 mg


8
%

34
%*Avanafil 200 mg


8
%

40
%*


*(p<0.001
active vs. placebo change from baseline)


The
most commonly reported side effects in patients taking avanafil (all doses combined) included headache (7.8% vs. 1.5% placebo), nasopharyngitis (3.1% vs. 4.6% placebo), flushing
(2.7% vs. 0% placebo), sinus congestion (1.9% vs. 0.8% placebo), sinusitis (1.9% vs. 0% placebo), and dyspepsia (1.6% vs. 0% placebo). No drug related serious adverse events were reported. The
discontinuation rates for all patients enrolled were 15.4% placebo, 15.5% 100 mg, and 13% 200 mg.

REVIVE-Diabetes
(TA-302) was a randomized, double-blind, placebo-controlled phase 3 study of avanafil in 390 men with ED as a result of their diabetes. On average
patients had ED for at least six years and had diabetes for over 11 years. Seventy-six percent of study participants had tried at least one other ED treatment. Patients underwent a
four-week, non-treatment run-in period followed by 12 weeks of treatment with one of two doses of avanafil: 100 mg and 200 mg, or placebo.
Patients were instructed to attempt sexual
intercourse approximately 30 minutes after taking the drug with no restrictions on food or alcohol consumption. The primary endpoints of the study were improvement in erectile function as measured by
the SEP and improvement in the EF-Domain of the IIEF score; secondary endpoints included patient satisfaction with erections and with sexual experience.

The
Phase 3 program includes two additional studies. REVIVE-RP (TA-303) has completed enrollment with 298 patients with ED following a radical
prostatectomy. Patients undergo a four-week run-in period followed by 12 weeks of treatment. Patients are randomized to placebo or one of two dose levels of active drug.
The primary endpoints of the study will be the same as those used in TA-301, namely, improvement in erectile function as measured by the Sexual Encounter Profile and the IIEF score.
Patients are instructed to attempt sexual intercourse 30 minutes after taking avanafil, with minimal restrictions on food or alcohol consumption. REVIVE-RP will study two doses of
avanafil: 100 mg and 200 mg.

In
December 2010, we announced the positive results of the long term safety study, TA-314. TA-314 was conducted over one year in approximately 675 patients across
40 U.S. centers. Patients completing either the 12-week REVIVE or REVIVE-Diabetes studies were eligible to participate in TA-314. The study met all primary endpoints by
demonstrating improvement from baseline in erectile function as measured by the Sexual Encounter Profile (both SEP2 and SEP3) and improvement in the International Index of Erectile Function, or IIEF.
In the study, patients treated with avanafil who attempted sexual intercourse (SEP3) within the first 15 minutes of dosing had success rates of 80%. TA-314 confirms the longer term safety
and efficacy results observed in the previously reported placebo-controlled Phase 3 studies of avanafil in patients with ED. With the completion of this study, we continue to anticipate the
completion of the NDA filing for avanafil in the second quarter of 2011.

Highlights
of the study include:



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Patients
achieved an overall improvement in erectile function, as measured by the erectile function, or EF, domain score of the IIEF. EF domain scores range from 0-30 and
measure erectile function as follows: severe dysfunction is less than or equal to 10; moderate dysfunction is 11-16; mild/minimal dysfunction is 17-25; with normal function in
the range of 26-30. At baseline, patients in the study had a mean EF domain score of 12.3 (high moderate). At the end of treatment, patients in the study had a mean EF domain score of
22.6, representing a change from baseline of 10.3.

Enrollment
in the TA-303 study was slower than anticipated but was completed late in 2010. We believe in part this was due to the fact that physicians are routinely
prescribing PDE5 inhibitors to their patients shortly following prostate surgery for penile rehabilitation, and patients do not wish to discontinue this rehabilitation therapy for the purpose of
enrolling into a double-blind, placebo-controlled study such as TA-303. In October 2010, we held a pre-NDA meeting with the FDA and discussed our NDA filing for avanafil
without the inclusion of TA-303. The FDA agreed that we may submit the NDA for avanafil prior to the completion of the TA-303 study. It is our intent to submit the results of
the TA-303 study to the FDA once it is complete. We have been informed by the FDA that the submission of the TA-303 study results subsequent to our NDA filing will not impact
the timing of their decision concerning the approvability of avanafil for other populations.

We
have entered into a Master Services Agreement and related Task Orders with Quintiles, Inc., or Quintiles, pursuant to which Quintiles will perform certain clinical research
services in connection with the clinical trials for avanafil. Our aggregate payment obligations entered into during 2008 through 2010 under the agreement for services, out of pocket expenses and pass
through costs total approximately $29.2 million, of which we have paid approximately $25 million through December 31, 2010. We have agreed to defend and indemnify Quintiles
against third party claims arising from the services other than claims resulting from Quintiles's negligence, willful misconduct, violation of law or material breach of the Master Service Agreement or
a Task Order. We can terminate the agreement at any time without cause. Quintiles may terminate the agreement following our material breach of the agreement that remains uncured.

MUSE for Erectile Dysfunction

In 1997, we commercially launched MUSE in the U.S.. MUSE was the first minimally invasive therapy for erectile dysfunction approved by
the FDA. On October 1, 2010, we entered into a definitive Asset Purchase Agreement with Meda to sell certain rights and assets related to MUSE, the MUSE Transaction. The assets sold include the
U.S. and foreign MUSE patents, existing inventory, and the manufacturing facility located in Lakewood, New Jersey. We retained all of the liabilities associated with the pre-closing
operations of the MUSE business and the accounts receivables for pre-closing MUSE sales. The transaction closed on November 5, 2010. Prior to the closing of the MUSE Transaction, we
regained all of the rights to MUSE and avanafil held by Deerfield Management Company, L.P., and affiliates, and Crown Bank, N.A., or Crown. On October 15, 2010, we repaid the Crown loan
in satisfaction of all obligations owed to them. As a result, the security interests and Certificate of Deposit held by Crown were terminated in our favor. On October 21, 2010, we exercised the
Option under the Deerfield OPA, and satisfied all of the financial obligations under the FARA and OPA. As a result, the security interests in the collateral related to MUSE and avanafil held by the
Deerfield Sub and the Deerfield Affiliates as part of the FARA and OPA were terminated.

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Under
the terms of the MUSE Transaction, we received an upfront payment of $22 million upon the closing and are eligible to receive an additional $1.5 million based on
future sales of MUSE, provided that certain sales milestones are reached. Meda is now responsible for the manufacturing, selling and marketing of MUSE. Meda also assumed all post-closing
expenses and liabilities associated with MUSE. We have agreed not to develop, manufacture or sell any transurethral erectile dysfunction drugs for a period of three years following the closing of the
MUSE Transaction.

Other Programs

We have licensed and intend to continue to license from third parties the rights to other investigational drug candidates to treat
various diseases and medical conditions. We also sponsor early stage clinical trials at various research institutions and intend to conduct early stage proof of concept studies on our own. We expect
to continue to use our expertise in designing clinical trials, formulation and investigational drug candidate development to commercialize pharmaceuticals for unmet medical needs or for disease states
that are underserved by currently approved drugs. We intend to develop products with a proprietary position or that complement our other products currently under development.

Sale of Evamist to K-V Pharmaceutical Company

On March 30, 2007, we entered into a definitive agreement with K-V Pharmaceutical Company, or K-V, to
transfer our assets and grant a sublicense of our rights under the Evamist Agreement to K-V, or the K-V Transaction. The closing of the K-V Transaction occurred on
May 15, 2007. Under the terms of the K-V Transaction, upon the closing, we received an upfront payment of $10 million. On July 27, 2007, we received FDA approval of
the NDA for Evamist. On August 1, 2007, we transferred and assigned the Evamist FDA submissions, and all files related thereto to K-V, and on August 8, 2007, K-V
paid us the additional $140 million milestone payment due upon FDA approval of the Evamist NDA. In August 2008, we assigned all of our rights and obligations under the Evamist license agreement
to K-V. In connection with the K-V Transaction, in order to obtain MTPC's blanket release of liens against our assets including the Evamist assets and intellectual property, we
repaid the MTPC line of credit.

In
May 2006, we announced positive results from the pivotal Phase 3 clinical trial of Evamist. The study showed a statistically significant reduction in the number and severity of
moderate and severe hot flashes. We submitted the NDA for Evamist to the FDA in the third quarter of 2006 and made a $1 million clinical development milestone payment to Acrux in October 2006
under the terms of our licensing agreement related to this submission. Upon approval of the NDA for Evamist, a $3 million product approval milestone became due and was paid to Acrux in August
2007. Under the terms of the K-V Transaction, K-V paid $1.5 million of this $3 million milestone.

Deerfield Financing

On April 3, 2008, we entered into several agreements with Deerfield Management Company, L.P., or Deerfield, a healthcare
investment fund, and its affiliates, Deerfield Private Design Fund L.P. and Deerfield Private Design International, L.P. (collectively, the Deerfield Affiliates). Certain of the
agreements were amended and restated on March 16, 2009, which included the addition of Deerfield PDI Financing L.P. as a Deerfield Affiliate. Under the agreements, Deerfield and its
affiliates provided us with $30 million in funding, consisting of $20 million from the Funding and Royalty Agreement, or FARA, entered into with a newly incorporated subsidiary of
Deerfield, or the Deerfield Sub, and $10 million from the sale of our common stock. We received all of the required payments under the FARA, or the Funding Payments. Under the FARA, we paid
royalties on the net sales of MUSE to the Deerfield Sub. The FARA had a term of 10 years.

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We entered into the Option and Put Agreement with the Deerfield Affiliates and the Deerfield Sub, dated April 3, 2008, and an Amended and Restated Option
and Put Agreement dated March 16, 2009, or the OPA. Pursuant to the OPA, the Deerfield Affiliates granted us an option to purchase all of the outstanding shares of common stock of the Deerfield
Sub from the Deerfield Affiliates, referred to as the Option. Our obligation to pay royalties terminated upon the exercise of the Option. The base consideration for the Option exercise, or Base Option
Price, was $25 million, less $2 million we paid upon closing, as the Option was exercised on or prior to the third anniversary of the execution of the OPA. The aggregate consideration
payable by us upon exercise of the Option, or the Option Purchase Price, was equal to the sum of the Base Option Price,plus: (i) the cash and
cash equivalents held by the Deerfield Sub at the date of the closing of the resulting sale of the common stock of the Deerfield Sub, or the Cash Adjustment; (ii) accrued and unpaid royalties,
or the Royalty Adjustment; andminus(i) the Option premium of $2 million that was paid at the closing of the transaction, or the Option
Premium Adjustment ; (ii) accrued but unpaid taxes; (iii) unpaid Funding Payments; (iv) loans payable by the Deerfield Sub, or the Loan Balance Adjustment; and (v) any
other outstanding liabilities of the Deerfield Sub, or the Adjusted Option Purchase Price.

In
preparation for the closing of the MUSE Transaction and in accordance with the terms of the OPA, we exercised the Option, and on October 21, 2010 we paid an aggregate amount
totaling $27.1 million, which consisted of the Base Option Price of $25 million, less the Option Premium Adjustment of $2 million, plus the Cash Adjustment of $2.8 million
and the Royalty Adjustment of $1.3 million. These payments satisfied all of the financial obligations under the FARA and OPA. As a result, all of the outstanding shares and the
$2.8 million of cash of the Deerfield Sub are owned by us, all of the outstanding loans owed by the Deerfield Sub have been repaid, and the security interests in the
collateral related to MUSE and avanafil held by the Deerfield Sub and the Deerfield Affiliates as part of the FARA and OPA were terminated. In December 2010, the Deerfield Sub was dissolved. The
payoff of the Deerfield loan resulted in a loss on the early extinguishment of debt of $6 million which was recognized in the fourth quarter of 2010.

Government Regulations

FDA Regulation

Prescription pharmaceutical products are subject to extensive pre- and post-marketing regulation by the FDA,
including regulations that govern the testing, manufacturing, safety, efficacy, labeling, storage, record-keeping, advertising and promotion of the products under the Federal Food, Drug and Cosmetic
Act, and by comparable agencies in most foreign countries.

The
activities required before a pharmaceutical agent may be marketed in the U.S. begin with pre-clinical testing. Pre-clinical tests include laboratory
evaluation of potential products and animal studies to assess the potential safety and efficacy of the product and its formulations. The results of these studies and other information must be
submitted to the FDA as part of an Investigational New Drug, or IND, application, which must be reviewed and approved by the FDA before proposed clinical testing can begin. Clinical trials involve the
administration of the investigational new drug to healthy volunteers or to patients under the supervision of a qualified principal investigator. Clinical trials must be conducted in accordance with
Good Clinical Practices under protocols that detail the objectives of the study, the parameters to be used to monitor safety and the efficacy criteria to be evaluated. Each protocol must be submitted
to the FDA as part of the IND application. Further, each clinical study must be conducted under the auspices of an independent institutional review board. The institutional review board will consider,
among other things, ethical factors and the safety of human patients.

Typically,
human clinical trials are conducted in three phases that may overlap. In Phase 1, clinical trials are conducted with a small number of patients to determine the early
safety profile and pharmacology of the new therapy. In Phase 2, clinical trials are conducted with groups of patients afflicted with a specific disease or medical condition in order to
determine preliminary efficacy, optimal

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dosages
and expanded evidence of safety. In Phase 3, large scale, multicenter clinical trials are conducted with patients afflicted with a target disease or medical condition in order to
provide substantial evidence of efficacy and safety required by the FDA and others.

The
results of the pre-clinical and clinical testing, together with chemistry and manufacturing information, are submitted to the FDA in the form of a New Drug Application,
or NDA, for a pharmaceutical product in order to obtain approval to commence commercial sales. In responding to an NDA, the FDA may grant marketing approvals, may request additional information or
further research or studies, or may deny the application if it determines that the application does not satisfy its regulatory approval criteria. FDA approval for a pharmaceutical product may not be
granted on a timely basis, if at all, or if granted may not cover all the clinical indications for which approval is sought or may contain significant limitations in the form of warnings, precautions
or contraindications with respect to conditions of use.

Satisfaction
of FDA premarket approval requirements for new drugs typically takes several years and the actual time required may vary substantially based upon the type, complexity and
novelty of the product or targeted disease. Government regulation may delay or prevent marketing of potential products for a considerable period of time and may impose costly procedures upon our
activities. Success in early stage clinical trials or with prior versions of products does not assure success in later stage clinical trials. Data obtained from clinical activities are not always
conclusive and may be susceptible to varying interpretations that could delay, limit or prevent regulatory approval.

Once
approved, the FDA may withdraw the product approval if compliance with post-marketing regulatory standards is not maintained or if problems occur after the product
reaches the marketplace. In addition, the FDA may require post-marketing studies, referred to as Phase 4 studies, to monitor the effect of an approved product, and may limit further
marketing of the product based on the results of these post-market studies. The FDA has broad post-market regulatory and enforcement powers, including the ability to levy fines
and civil penalties, suspend or delay issuance of approvals, seize or recall products, or withdraw approvals. Additionally, the Food and Drug Amendment Act of 2007 requires all clinical trials we
conduct for our investigational drug candidates, both before and after approval, and the results of those trials when available, to be included in a clinical trials registry database that is available
and accessible to the public via the Internet. Our failure to properly participate in the clinical trial database registry would subject us to significant civil penalties.

Facilities
used to manufacture drugs are subject to periodic inspection by the FDA, and other authorities where applicable, and must comply with the FDA's cGMP regulations. Failure to
comply
with the statutory and regulatory requirements subjects the manufacturer to possible legal or regulatory action, such as suspension of manufacturing, seizure of product or voluntary recall of a
product. Certain adverse experiences with the product must be reported to the FDA and could result in the imposition of market restriction through labeling changes or product removal. Product
approvals may be withdrawn if compliance with regulatory requirements is not maintained or if problems concerning safety or efficacy of the product occur following approval.

With
respect to post-market product advertising and promotion, the FDA imposes a number of complex regulations on entities that advertise and promote pharmaceuticals, which
include, among other things, standards and regulations relating to direct-to-consumer advertising, off-label promotion, industry-sponsored scientific and
educational activities, and promotional activities involving the Internet. The FDA has very broad enforcement authority. Failure to abide by these regulations can result in penalties including the
issuance of a warning letter directing the entity to correct deviations from FDA standards, adverse publicity, a requirement that future advertising and promotional materials be
pre-cleared by the FDA, and state and federal civil and criminal investigations and prosecutions.

We
are subject to various laws and regulations regarding laboratory practices, the experimental use of animals, and the use and disposal of hazardous or potentially hazardous substances
in connection

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with
our research. In each of these areas, as noted above, the government has broad regulatory and enforcement powers, including the ability to levy fines and civil penalties, suspend or delay
issuance of approvals, seize or recall products, and withdraw approvals, any one or more of which could have a material adverse effect upon us.

Other Government Regulations

In addition to laws and regulations enforced by the FDA, we are also subject to regulation under National Institutes of Health
guidelines as well as under the Controlled Substances Act, the Occupational Safety and Health Act, the Environmental Protection Act, the Toxic Substances Control Act, the Resource Conservation and
Recovery Act and other present and potential future federal, state or local laws and regulations, as our research and development may involve the controlled use of hazardous materials, chemicals,
viruses and various radioactive compounds.

In
addition to regulations in the U.S., we are subject to a variety of foreign regulations governing clinical trials and commercial sales and distribution of our investigational drug
candidates. Whether or not we obtain FDA approval for a product, we must obtain approval of a product by the comparable
regulatory authorities of foreign countries before we can commence clinical trials or marketing of the product in those countries. The approval process varies from country to country, and the time may
be longer or shorter than that required for FDA approval. The requirements governing the conduct of clinical trials, product licensing, pricing and reimbursement vary greatly from country to country.

Corporate Collaborations and Licenses from Third Parties

Mitsubishi Tanabe Pharma Corporation

In January 2001, we entered into an exclusive development, license and supply agreement with Tanabe Seiyaku Co., Ltd., or
Tanabe, now Mitsubishi Tanabe Pharma Corporation, or MTPC, and hereinafter collectively referred to as MTPC, for the development and commercialization of avanafil, a PDE5 inhibitor compound for the
oral and local treatment of male and female sexual dysfunction. Under the terms of the agreement, MTPC agreed to grant an exclusive license to us for products containing avanafil outside of Japan,
North Korea, South Korea, China, Taiwan, Singapore, Indonesia, Malaysia, Thailand, Vietnam and the Philippines. We agreed to grant MTPC an exclusive, royalty-free license within those
countries for oral products that we develop containing avanafil. In addition, we agreed to grant MTPC an exclusive option to obtain an exclusive, royalty-bearing license within those countries for
non-oral products that we develop containing avanafil. MTPC agreed to manufacture and supply us with avanafil for use in clinical trials, which will be our primary responsibility.

We
have paid upfront licensing fees of $5 million to MTPC and have agreed to make additional payments upon the completion of certain development, regulatory and sales milestones.
During the first quarter of 2004, we initiated a Phase 2 clinical trial with avanafil, which triggered one of the clinical development milestone criteria noted above. In 2006, we paid MTPC
$2 million in connection with this milestone. We have further agreed to pay royalties on net sales of products containing avanafil. No payments were made under this agreement with MTPC in the
years ended December 31, 2007 and 2008; however, we paid MTPC $4 million in January 2009 following the enrollment in December 2008 of the first patient in the first Phase 3
clinical studies. We expect to make other substantial payments to MTPC in accordance with our agreements with MTPC as we continue to develop and, if approved for sale, commercialize avanafil for the
oral treatment of male sexual dysfunction. Such potential future milestone payments total $15 million and include payments upon: the first submission of an NDA, which is expected in the second
quarter of 2011; obtainment of the first regulatory approval in the U.S. and any major European country, and achievement of $250 million or more in calendar year sales.

The
term of the MTPC agreement is based on a country-by-country and on a product-by-product basis. The term shall continue until the later
of (i) 10 years after the date of the first sale for a particular product, or (ii) the expiration of the last-to-expire patents within the MTPC patents
covering

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such
product in such country. In the event that our investigational drug candidate is deemed to be (i) insufficiently effective or insufficiently safe relative to other PDE5 inhibitor compounds
based on published information, or (ii) not economically feasible to develop due to unforeseen regulatory hurdles or costs as measured by standards common in the pharmaceutical industry for
this type of product, we have the right to terminate the agreement with MTPC with respect to such investigational drug candidate.

Other

On October 16, 2001, we entered into an assignment agreement, or the Assignment Agreement, with Thomas Najarian, M.D. for a
combination of pharmaceutical agents for the treatment of obesity and other disorders, or the Combination Therapy, that has since been the focus of our investigational drug candidate development
program for QNEXA for the treatment of obesity, obstructive sleep apnea and diabetes. The Combination Therapy and all related patent applications, or the Patents, were transferred to us with worldwide
rights to develop and commercialize the Combination Therapy and exploit the Patents. Pursuant to the Assignment Agreement, we have paid a total of $220,000 to Dr. Najarian through
December 31, 2010 and have issued him options to purchase 40,000 shares of our common stock. We are obligated under the terms of the Assignment Agreement to make a milestone payment of
$1 million and issue an option to purchase 20,000 shares of our common stock to Dr. Najarian upon marketing approval by the FDA of a drug for the treatment of obesity that is based upon
the Combination Therapy and Patents. This assignment will require us to pay royalties on worldwide net sales of a drug for the treatment of obesity that is based upon the Combination Therapy and
Patents until the last-to-expire of the assigned Patents. To the extent that we decide not to commercially exploit the Patents, the Assignment Agreement will terminate and the
Combination Therapy and Patents will be assigned back to Dr. Najarian. In 2006, Dr. Najarian joined us as a part-time employee and currently serves as a Principal Scientist.

Patents and Proprietary Technology

We are the exclusive licensee of 34 patents and 11 published patent applications in the U.S. and Canada. We intend to develop, maintain
and secure intellectual property
rights and to aggressively defend and pursue new patents to expand upon our current patent base. Our portfolio of patents as it primarily relates to our investigational drugs is summarized as follows:

QNEXAU.S. Patent No. 7,056,890


Expiring 06/14/2020U.S. Patent No. 7,553,818


Expiring 06/14/2020U.S. Patent No. 7,659,256


Expiring 06/14/2020U.S. Patent No. 7,674,776


Expiring 06/14/2020U.S. Patent Publication No. 2008/0255093 A1


PendingU.S. Patent Publication No. 2008/0312163 A1


PendingU.S. Patent Publication No. 2009/0304789 A1


PendingU.S. Patent Publication No. 2009/0304785 A1


PendingU.S. Patent Publication No. 2010/0105765 A1


PendingU.S. Patent Publication No. 2010/0215739 A1


PendingCanadian Patent No. 2,377,330


Expiring 06/14/2020Canadian Patent Publication No. 2,691,991 A1


PendingCanadian Patent Publication No. 2,692,042 A1


PendingCanadian Patent Publication No. 2,727,313 A1


PendingCanadian Patent Publication No. 2,727,319 A1


PendingCanadian Patent Publication No. 2,686,633 A1


PendingAVANAFIL


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U.S. Patent No. 6,656,935


Expiring 09/13/2020U.S. Patent No. 6,797,709


Expiring 09/13/2020Canadian Patent No. 2,383,466


Expiring 09/13/2020ERECTILE DYSFUNCTIONU.S. Patent No. 5,482,039


Expiring 03/25/2014U.S. Patent No. 5,769,088


Expiring 03/25/2014U.S. Patent No. 5,773,020


Expiring 04/25/2010U.S. Patent No. 5,820,587


Expiring 03/14/2015U.S. Patent No. 5,849,803


Expiring 12/15/2015U.S. Patent No. 5,910,316


Expiring 06/08/2016U.S. Patent No. 5,922,341


Expiring 10/28/2017U.S. Patent No. 5,925,629


Expiring 10/28/2017U.S. Patent No. 6,037,346


Expiring 10/28/2017U.S. Patent No. 6,093,181


Expiring 07/25/2017U.S. Patent No. 6,113,939


Expiring 09/05/2017U.S. Patent No. 6,127,363


Expiring 10/28/2017U.S. Patent No. 6,156,753


Expiring 10/28/2017U.S. Patent No. 6,403,597


Expiring 10/28/2017U.S. Patent No. 6,495,154


Expiring 11/21/2020U.S. Patent No. 6,548,490


Expiring 10/28/2017U.S. Patent No. 6,946,141


Expiring 11/21/2020Canadian Patent No. 2,305,394


Expiring 10/28/2018


QNEXA
contains two active substances, phentermine and topiramate, which have already been approved individually for use in medicinal products in the European Union. There is no approved
product containing a fixed dose combination of phentermine and topiramate. We have been advised that QNEXA is considered a reference product under the EU rules governing medicinal products for the
purpose of granting a fresh and independent period of regulatory data protection.

Since
a new fixed combination product is considered a reference product within the meaning of Article 10(2)(a) of Directive 2001/83, it is entitled to a fresh period of regulatory
data protection. According to Article 10(1) coupled with Article 10(2)(b) of Directive 2001/83/EC for nationally authorized products, this period of data protection is set at
10 years. Within eight years of those 10 years, a generic applicant is not permitted to cross refer to the preclinical and clinical trial data relating to the reference product. Even if
the generic product is authorized, it cannot be placed on the market until the full 10-year regulatory data protection has expired. This 10-year data protection may be extended
cumulatively to a maximum period of 11 years if during the first eight years of those 10 years, the marketing authorization holder obtains an authorization for one or more new
therapeutic indications which, during the scientific evaluation prior to their authorization, are held to bring a significant clinical benefit in comparison with existing therapies. This essentially
is the formula of 8+2+1 for regulatory data protection applied in the EU. An identical formula for regulatory data protection is set out in Article 14(11) of Regulation (EC) 726/2004 for all
centrally authorized products. If we are successful in obtaining a new indication, which is considered by the regulatory authorities to bring about a significant clinical benefit like diabetes or
sleep apnea with QNEXA in the EU, we could, under the current EU rules, enjoy a total period of 11 years of data exclusivity.

The
following U.S. patents and their foreign counterparts were transferred to Meda AB of Solna, Sweden, in connection with the previously reported closing of the sale of our MUSE assets
November 5, 2010: 5,242,391; 5,474.535; 5,843,961; 5,886,039; and 5,942,512.

In
connection with the previously reported termination of the Development and Commercialization Agreement for Luramist with FemPharm Pty Ltd., a wholly owned subsidiary of Acrux
Limited, our

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rights
under the following U.S. patents, applications, and their foreign counterparts reverted to the licensor: 6,299,900; 6,818,226; 6,923,983; 7,438,203; 2006/0280783 A1; and 2008/0152597 A1.

We
also hold foreign counterparts, patents and patent applications in major foreign jurisdictions related to our U.S. patents. We have developed and acquired exclusive rights to patented
technology in support of our development and commercialization of our investigational drug candidates, and we rely on trade secrets and proprietary technologies in developing potential drugs. We
continue to place significant emphasis on securing global intellectual property rights and are aggressively pursuing new patents to expand upon our strong foundation for commercializing
investigational drug candidates in development.

Competition

Competition in the pharmaceutical and medical products industries is intense and is characterized by costly and extensive research
efforts and rapid technological progress. We are aware of several pharmaceutical companies also actively engaged in the development of therapies for the treatment of obesity, diabetes and sexual
health and medical device companies for the treatment of sleep apnea. Many of these companies have substantially greater research and development capabilities as well as substantially greater
marketing, financial and human resources than we do. In addition, many of these companies have significantly greater experience than us in undertaking pre-clinical testing, human clinical
trials and other regulatory approval procedures. Our competitors may develop technologies and products that are more effective than those we are currently marketing or researching and developing. Such
developments could render our investigational drug candidates less competitive or possibly obsolete. We are also competing with respect to marketing capabilities and manufacturing efficiency, areas in
which we have limited experience. Mergers, acquisitions, joint ventures and similar events may also significantly change the competition.

Current
approved anti-obesity drugs include Xenical (orlistat), marketed by Roche, and the over-the-counter version, alli, marketed by
GlaxoSmithKline, and phentermine, which is available from several generic manufacturers. Orlistat works by inhibiting lipase, thus preventing digestion and absorption of dietary fat in the
gastrointestinal tract. Meridia (sibutramine) was marketed by Abbott Laboratories; however, in October 2010, Abbott Laboratories announced that it will withdraw Meridia in the U.S. at the FDA's
request. The FDA requested the withdrawal because they believed Meridia's risks were not justified compared with the modest weight loss that patients achieved on the drug. In January 2010, the EMA
suspended the marketing authorization of sibutramine in Europe. The impact on QNEXA of the withdrawal of sibutramine is
unknown at this time. There are several drugs in development for obesity including an investigational drug candidate, liraglutide in Phase 3 clinical trials being developed by Novo Nordisk A/S
and several other investigational drug candidates in Phase 2 clinical trials. Arena Pharmaceuticals, Inc. and Orexigen Therapeutics, Inc. have each submitted an NDA with the FDA
for their investigational obesity drug candidates. Neither of these investigational drug candidates was approved by the FDA citing concerns around carcinogenicity in the case of Arena and the need to
complete a pre-approval cardiovascular outcomes study in the case of Orexigen. The future of the Arena and Orexigen compounds is uncertain at this time.

Many
of these drugs are or will be marketed by pharmaceutical companies with substantially greater resources than us. In addition, a number of generic pharmaceutical drugs are prescribed
for obesity, predominantly phentermine. Phentermine is sold at much lower prices than we intend to charge for QNEXA, if approved. The availability of a branded prescription drugs, generic drugs and
over-the-counter drugs could limit the demand for, and the price we are able to charge for QNEXA, if approved.

There
are also surgical approaches to treat severe obesity that are becoming increasingly accepted and could become competitors against our investigational drug candidate, QNEXA. Two of
the most well established surgical procedures are gastric bypass surgery and adjustable gastric banding. In

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February
2011, the FDA approved the use of a lap band in patients with a BMI of 35 without co-morbidities and 30 with co-morbidities. The lowering of the BMI requirement will
make more overweight and obese patients eligible for lap band surgery. The potential impact on QNEXA and/or other weight loss pharmacotherapy is unknown. In addition, other potential approaches that
utilize various implantable devices or surgical tools are in development. Some of these approaches are in late stage development and may be approved for marketing. If approved, the companies that
market these drugs may have substantially greater resources than we have.

Significant
competitive therapies exist for avanafil in the form of oral medications marketed by Pfizer, Inc. under the name Viagra®, Cialis®, marketed by
Eli Lilly and Company, and Levitra®, which is co-marketed by GlaxoSmithKline plc and Schering-Plough Corporation in the U.S. In 2010, the European Commission approved a
new formulation of Levitra, or vardenafil HCI. Levitra 10mg oral-disintegrating tablet, or ODT, will be the first ED medication available in an ODT form. In Europe, the launch
roll-out was expected in November 2010. The launch in the EU has not yet occurred. In the U.S., the medication was approved in June 2010 and will be marketed by GlaxoSmithKline and
Merck & Co., Inc. under the tradename STAXYN. Consistent with the oral version, the ODT formulation instructs men to take the medication 60 minutes prior to
attempting sexual activity. However, the ODT version will be positioned as an "anytime, anywhere" treatment for ED. We are uncertain how the launch of ODT vardenafil will impact the future commercial
potential of avanafil.

There
are currently three PDE5 inhibitors approved in the U.S. for the treatment of erectile dysfunction: sildenafil, vardenafil, and tadalafil. Worldwide sales of these drugs were in
excess of $4.1 billion in 2010. As the patents for the three major PDE5 inhibitors currently being sold expire, generic PDE5s will enter the marketplace. Generic PDE5s would likely be sold at
lower prices and may reduce the demand for avanafil and the prices we intend to charge for avanafil, if approved. Additional PDE5 inhibitors are in various stages of development by other companies.
Warner-Chilcott plc has licensed the U.S. rights to udenafil, a PDE5i from Dong-A. Warner-Chilcott continues the Phase 3 development of this compound for ED. Other treatments
for ED exist, such as transurethral alprostadil, needle injection therapies, vacuum constriction devices and penile implants, and the manufacturers of these products will most likely continue to
develop or improve these therapies.

New
developments, including the development of other drug technologies and methods of preventing the incidence of disease, occur in the pharmaceutical and medical technology industries
at a rapid pace. These developments may render our investigational drug candidates obsolete or noncompetitive. Compared to us, many of our potential competitors have substantially
greater:



As
a result of these factors, our competitors may obtain regulatory approval of their products more rapidly than we or may obtain patent protection or other intellectual property rights
that limit our ability to develop or commercialize our investigational drug candidates. Our competitors may also develop drugs or surgical approaches that are more effective, more useful and less
costly than ours and
may also be more successful in manufacturing and marketing their products. In addition, our competitors may be more effective in commercializing their products. We currently outsource our
manufacturing and therefore rely on third parties for that competitive expertise. There can be no assurance that we will be able to develop or contract for these capabilities on acceptable economic
terms, or at all.

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Research and Development

We incurred $40 million in 2010, $70.9 million in 2009 and $77 million in 2008 in research and development
expenses, primarily to discover and develop our investigational drug candidates in obesity, sleep apnea and diabetes treatment, to restore sexual function in men, to license from third parties the
rights to investigational drug candidates to treat various sexual and nonsexual disorders and to sponsor early stage clinical trials at various research institutions.

Employees

As of February 18, 2011, we had 43 employees located at our corporate headquarters in Mountain View, California and other U.S.
locations. None of our current employees are represented by a labor union or are the subject of a collective bargaining agreement. We believe that our relations with our employees are good and we have
never experienced a work stoppage at any of our facilities.

Insurance

We maintain product liability insurance for our clinical trials. Insurance coverage is becoming increasingly expensive and no assurance
can be given that we will be able to maintain insurance coverage at a reasonable cost or in sufficient amounts to protect us against losses due to liability. There can also be no assurance that we
will be able to obtain commercially reasonable product liability insurance for any future drugs approved for marketing.

Available Information

Our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on
Form 8-K and amendments to reports filed pursuant to Section 13(a) and 15(d) of the Securities Exchange Act of 1934, as amended, are available on our website at www.vivus.com, when such
reports are available on the Securities and Exchange Commission, or SEC, website. Copies of our annual report will be made
available, free of charge, upon written request.

The
public may read and copy any materials filed by VIVUS with the SEC at the SEC's Public Reference Room at 100 F Street, NE, Washington, DC 20549. The public may obtain
information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains an Internet site that contains reports, proxy and
information statements and other information regarding issuers that file electronically with the SEC athttp://www.sec.gov.The contents of these
websites are not incorporated into this filing. Further, VIVUS' references to the URLs for these websites are intended to be inactive textual references only.

In
addition, information regarding our code of ethics and the charters of our Audit, Compensation, and Nominating and Governance Committees are available free of charge on our website
listed above, or in print upon written request.

Item 1A.Risk Factors

Set forth below and elsewhere in this Annual Report on Form 10-K and in other documents we file with the Securities
and Exchange Commission, or SEC, are risks and uncertainties that could cause actual results to differ materially from the results contemplated by the forward-looking statements contained in this
Annual Report on Form 10-K. These are not the only risks and uncertainties facing VIVUS. Additional risks and uncertainties not presently known to us or that we currently deem
immaterial may also impair our business operations.

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Risks Relating to our Investigational Drug Candidate Development Efforts

We face significant risks in our investigational drug candidate development efforts.

The process of developing new drugs and/or therapeutic products is inherently complex, unpredictable, time-consuming,
expensive and uncertain. We must make long-term investments and commit significant resources before knowing whether our development programs will result in drugs that will receive
regulatory approval and achieve market acceptance. Investigational drug candidates that appear to be promising at all stages of development may not reach the market for a number of reasons that may
not be predictable based on results and data of the non-clinical and clinical program. Investigational drug candidates may be found ineffective or may cause harmful side effects during
clinical trials, may take longer to progress through clinical trials than had been anticipated, may not be able to achieve the pre-defined clinical endpoints due to statistical anomalies
even though clinical benefit may have been achieved, may fail to receive necessary regulatory approvals, may prove impracticable to manufacture in commercial quantities at reasonable cost and with
acceptable quality, or may fail to achieve market acceptance.

We are largely dependent on the success of our two investigational drug candidates: QNEXA, for treatment of obesity, and avanafil, for treatment of erectile dysfunction, and
cannot be certain that either investigational drug candidate will receive timely regulatory approval, if at all, or be successfully commercialized.

We currently have only a limited number of investigational drug candidates in clinical development, and our business depends on their
successful development and, if approved, commercialization. The research, testing, manufacturing, labeling, approval, sale, marketing and distribution of drug products are subject to extensive
regulation by the U.S. Food and Drug Administration, or FDA, and other regulatory authorities in the U.S. and other countries, which regulations differ by agency and country. We are not permitted to
market our investigational drug
candidates in the U.S. until we receive approval of a new drug application, or NDA, from the FDA, or in any foreign countries until we receive the requisite approval from the regulatory authorities of
such countries.

Regulatory
approval of an NDA or NDA supplement is not guaranteed. Despite the time and expense exerted, failure can occur at any stage, and we could encounter problems that cause us to
abandon clinical trials or to repeat or perform additional pre-clinical studies and clinical trials. The number of pre-clinical studies and clinical trials that will be
required for FDA approval varies depending on the investigational drug candidate, the disease or condition that the investigational drug candidate is designed to target and the regulations applicable
to any particular investigational drug candidate. The FDA may also ask for retrospective observational study or trials. A retrospective observational study or trial, also referred to as a historical
study or trial, is a study in which the medical records of groups of individuals with certain characteristics are assessed for a particular outcome. In summary, in a retrospective observational study,
all the eventsexposure and subsequent development of the event, have already occurred in the past. We merely collect the data now, and establish the risk of developing an event if exposed
to a particular risk factor. On the other hand, a prospective study is typically conducted by starting with two groups at the current point, and following up in the future for occurrence of an event,
if any.

To
date, all of the clinical studies we have performed on QNEXA are prospective studies. The FDA has asked for the feasibility of conducting a retrospective observational study of the
historical incidence of fetal outcomes including congenital malformations with an interest in oral cleft and low birth weight in the offspring of women who received prophylaxis treatment with 100 mg
of topiramate for migraine during pregnancy. We are currently assessing the feasibility of such a study. The FDA may require us to perform this study prior to the approval of QNEXA. This requirement
may delay the approval of QNEXA and have a material adverse impact on our finances and future sales of QNEXA.

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The FDA can delay, limit or deny approval of an investigational drug candidate for many reasons, including:



On
October 28, 2010, we received a Complete Response Letter, or CRL, regarding the New Drug Application, or NDA, for QNEXA as a treatment for obesity. The CRL stated that in its
current form, the NDA for QNEXA was not approvable. The CRL included the following areas: clinical, labeling, Risk Evaluation and Mitigation Strategy, or REMS, safety update, and drug scheduling. In
the clinical section of the CRL, the FDA requested a comprehensive assessment of topiramate's and QNEXA's teratogenic potential including a detailed plan and strategy to evaluate and mitigate the
potential teratogenic risks in women of childbearing potential taking the drug for the treatment of obesity. In addition, the FDA asked us to provide evidence that the elevation in heart rate (mean
1.6 beats per minute on the top dose) associated with QNEXA does not increase the risk for major adverse cardiovascular events. The FDA requested that we formally submit the results from the completed
SEQUEL study (OB-305), a 52-week extension study for a subset of 675 patients who completed the previously reported 56-week CONQUER study. The FDA reserved the
right to comment further on proposed labeling. On REMS, the FDA requested that a discussion of an already-submitted REMS plan be continued after we have submitted the written response. The agency also
requested a safety update of any new adverse events be submitted to the NDA. Finally, the FDA stated that if approved, QNEXA would be a Schedule IV drug due to the phentermine component. On
January 19, 2011, we held an End-of-Review meeting with the FDA to discuss the items contained in the CRL and the information we plan to include in the resubmission of
the NDA for QNEXA. In anticipation of the meeting, we had provided a briefing document that included analyses integrating existing non-clinical and clinical data to provide a comprehensive
assessment of the teratogenic potential of topiramate. In addition, we provided several new analyses to demonstrate that QNEXA does not increase the risk for major cardiovascular events, which
analyses included cardiovascular data from our SEQUEL (OB-305) and Sleep Apnea (OB-204) studies. We also provided a synopsis of the final study report for the SEQUEL study. No
new clinical studies were requested in the CRL. At the meeting, presentations were made on the comprehensive assessment of the teratogenic potential of topiramate and QNEXA, and evidence was presented
that the increase in heart rate of 1.6 beats per minute does not increase the risk for major adverse cardiovascular events. The discussion also included elements of our proposed REMS program for
QNEXA. The FDA chose to focus the meeting on the discussion of teratogenic potential for topiramate, specifically the incidence of oral clefts observed in the North American AED Pregnancy Registry and
in the UK Epilepsy and Pregnancy Registry. As part of this meeting, the FDA requested that we complete the Feasibility Assessment. Although no other requests for additional

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information
or studies were made by the FDA at the meeting or in the CRL, there can be no assurance that the FDA will not request or require us to provide additional information or undertake
additional studies in connection with the QNEXA NDA. In the QNEXA studies, which included 15 offspring from women exposed to QNEXA or topiramate, there were no reports of any congenital malformations
or low birth weight. The timing of the planned resubmission of the QNEXA NDA will be determined after agreement with the FDA is reached on the Feasibility Assessment and whether a retrospective
observational study would be needed. We expect to reach agreement with the FDA, and if deemed feasible, initiate the retrospective observational study on fetal outcomes within the next two months. It
is our goal to resubmit the NDA for QNEXA to the FDA by the end of 2011.

There
are no guarantees that our response to the FDA's request to perform the Feasibility Assessment will be sufficient to satisfy the FDA's safety concerns, that the FDA will not
require us to conduct
additional clinical or retrospective observational studies, that the FDA will accept our resubmission or that QNEXA will receive regulatory approval for any indication or prove to be commercially
successful.

Our
next most advanced investigational drug candidate, avanafil, has completed all of the large, pivotal Phase 3 clinical trials for efficacy and safety that are required to
submit the NDA for approval. As part of our pre-NDA meeting with the FDA, it was determined that the completion of TA-303, a study of avanafil in patients who have undergone a
radical prostatectomy, would not be required prior to submission of the avanafil NDA. Recruitment for the study was completed in December 2010. The final study report for TA-303 may be
included as part of a supplemental filing to the avanafil NDA at a later time. All of the other avanafil Phase 3 studies have been completed and we anticipate filing the NDA in the second
quarter of 2011. Notwithstanding our belief that the data collected from our three Phase 3 trials of QNEXA is promising, and even if we believe that data collected from our
pre-clinical studies and clinical trials of avanafil and our other investigational drug candidates are promising and that our information and procedures regarding chemistry, manufacturing
and controls are sufficient, our data may not be sufficient to support approval by the FDA or any other foreign regulatory authority.

In
addition, we believe that the regulatory review of NDAs for investigational drug candidates intended for widespread use by a large proportion of the general population is becoming
increasingly focused on safety. In this regard, it is likely that some of our investigational drug candidates, including QNEXA and avanafil, will be subject to increased scrutiny to show adequate
safety than would investigational drug candidates for more acute or life-threatening diseases, such as cancer or HIV. In 2010, the FDA notified healthcare professionals that the review of
additional data from a post-approval study of sibutramine indicates an increased risk of heart attack and stroke in patients with a history of cardiovascular disease using sibutramine.
Meridia (sibutramine) was marketed by Abbott Laboratories; however, in October 2010, Abbott Laboratories withdrew Meridia in the U.S. at the FDA's request.

The
European Medicines Agency also completed a review of the safety and effectiveness of sibutramine. The Agency's Committee for Medicinal Products for Human Use, or CHMP, has concluded
that the benefits of sibutramine do not outweigh its risks, and that all marketing authorizations for medicines containing sibutramine should be suspended throughout Europe. We are unable to determine
the impact on QNEXA, if any, of the recent actions in the U.S. and Europe with regards to sibutramine. Recently, Orexigen Therapeutics, manufacturers of Contrave, an investigational drug for the
treatment of obesity, received a CRL from the FDA requesting that a long-term, randomized, placebo-controlled cardiovascular outcomes study be completed prior to refiling the NDA. To date,
the FDA has not requested that we perform any additional studies, including cardiovascular outcome studies pre-approval, other than the request to perform the Feasibility Assessment.
Cardiovascular outcomes studies can take several years, cost millions of dollars and may result in showing an increased risk for major adverse cardiovascular events for patients undergoing drug
treatment. If any regulatory agency were to require additional studies, including studies to address cardiovascular events, the impact on the timing of approval and, if approved, commercialization of

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QNEXA,
avanafil or any of our investigational drug candidates could be delayed or adversely impacted. Even if approved, investigational drug candidates may not be approved for all indications
requested and such approval may be subject to limitations on the indicated uses for which the drug may be marketed and may have restricted access programs. Our business and reputation may be harmed by
any failure or significant delay in receiving regulatory approval for the sale of any drugs resulting from our investigational drug candidates. As a result, we cannot predict when or whether
regulatory approval will be obtained for any of our investigational drug candidates currently under development.

The results of pre-clinical studies and completed clinical trials are not necessarily predictive of future results, and our current investigational drug
candidates may not have favorable results in later studies or trials.

Pre-clinical studies and Phase 1 and Phase 2 clinical trials are not primarily designed to test the efficacy
of an investigational drug candidate in the general population, but rather to test initial safety, to study pharmacokinetics and pharmacodynamics, to study limited efficacy in a small number of study
subjects in a selected disease population, and to identify and attempt to understand the investigational drug candidate's side effects at various doses and dosing schedules. Success in
pre-clinical studies or completed clinical trials does not ensure that later studies or trials, including continuing pre-clinical studies and large-scale clinical trials, will
be successful nor does it necessarily predict future results. Favorable results in early studies or trials may not be repeated in later studies or trials, and investigational drug candidates in later
stage trials may fail to show acceptable safety and efficacy despite having progressed through earlier trials. In addition, the placebo rate in larger studies may be higher than expected.

We
have previously announced results from two pivotal Phase 3 clinical trials for safety and efficacy of our most advanced investigational drug candidate QNEXA, as a treatment for
obesity, and we may continue to analyze the data collected in these trials. In addition, the briefing documents prepared by
us and the FDA ahead of the Advisory Committee meeting, as well as materials used during that meeting, have been made available to the public. The meeting materials contain information not previously
disclosed to the public. Top-line results of an extension study, OB-305, were released in the third quarter of 2010. Consequently, it is possible that further analysis of this
information and other data on QNEXA may yield information or suggest conclusions not yet known that may negatively impact our ability to obtain regulatory approval for QNEXA as a treatment for obesity
or, if approved, market acceptance.

Our
other investigational drug candidate, avanafil, has successfully completed all of the large, pivotal Phase 3 trials for safety and efficacy that are required for submission
for approval by the FDA and other worldwide regulatory authorities. Pre-clinical data and the limited clinical results that we have obtained for our investigational drug candidates may not
predict results from studies in larger numbers of patients in multiple sites drawn from more diverse populations treated for longer periods of time. The smaller and shorter clinical trials also may
not predict the ability of these investigational drugs to achieve or sustain the desired effects in the broad intended population or to do so safely. We may also decide to not conduct additional
Phase 2 studies prior to the initiation of pivotal Phase 3 studies. In addition, we may elect to enter into pivotal Phase 3 studies with a new formulation, dosage, delivery system
or choose to study different populations than had been studied in previous clinical trials.

QNEXA
is our proprietary capsule formulation investigational drug candidate containing the active ingredients phentermine and topiramate. Phentermine was approved for the
short-term treatment of obesity by the FDA in 1959. Topiramate is approved for seizures (1996) and migraine prevention (2004). Published studies on topiramate reported that topiramate
treatment produced weight loss. By combining topiramate with phentermine, QNEXA attempts to simultaneously address excessive appetite and a high threshold for satiety, the two main mechanisms believed
to impact eating behavior. Although we believe QNEXA affects the two major causes of overeating, excessive hunger and the

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inability
to feel satisfied, we may not be correct in our assessment of the impact the combination of these two ingredients may have on weight loss or their mechanism of action. Earlier studies with
QNEXA were completed using a twice-a-day dose. The twice-a-day dose and timing of the administration of the immediate-release active ingredients was
determined by the inventor through the treatment of patients in his private practice. We used a once-a-day, controlled-release formulation in our completed Phase 3
studies of QNEXA. We have completed various pharmacokinetic studies of the once-a-day formulations to characterize the pharmacokinetic profile of the
once-a-day, controlled-release formulation of QNEXA. The FDA has also asked us to study the effects of a lower dose of QNEXA, which we did in the Phase 3 obesity trials.
To date, the FDA has not raised any issues or concerns around the formulation of QNEXA. While we believe we can adequately address any future the issues raised by the FDA, there can be no assurance
that we will be successful in obtaining or maintaining regulatory approval for QNEXA.

We
may be required to demonstrate through large, long-term outcome trials that our investigational drug candidates are safe and effective for use in a broad population prior
to obtaining regulatory approval. We are considering a cardiovascular outcome study post-approval for QNEXA. In addition, we are proposing the use of the pregnancy registry for QNEXA
patients post-approval. We will also implement as necessary a patient access program to ensure only qualified patients receive QNEXA and will implement a Risk Evaluation and Mitigation
Strategy, or REMS, to ensure that the benefits of QNEXA outweigh its risks. REMS for QNEXA will measure and monitor physician and patient compliance. There is typically a high rate of attrition from
the failure of investigational drug candidates proceeding through clinical trials. If any of our investigational drug candidates fail to demonstrate sufficient safety and efficacy in any clinical
trial, we will experience potentially significant delays in, or may decide to abandon development of, that investigational drug candidate. If we abandon or are delayed in our development efforts
related to any of our investigational drug candidates, we may not be able to generate sufficient revenues to continue our operations and clinical studies at the current level or become profitable. Our
reputation in the industry and in the investment community would likely be significantly damaged. It may not be possible for us to raise funds in the public or private markets, and our stock price
would likely decrease significantly.

If the results of current or future pre-clinical studies, clinical testing and/or clinical trials indicate that our proposed investigational drug candidates are
not safe or effective for human use, our business will suffer.

Unfavorable results from ongoing pre-clinical studies, clinical testing and/or clinical trials could result in delays,
modifications or abandonment of ongoing or future clinical trials or development programs. A number of companies in the pharmaceutical industry have suffered significant setbacks in late stage
clinical trials, even after promising results in mid to late-stage trials. Clinical results are frequently susceptible to varying interpretations that may delay, limit or prevent
regulatory approvals. Negative or inconclusive results or adverse medical events during a clinical trial could cause a clinical trial to be delayed, repeated, modified or terminated. In addition,
failure to design appropriate clinical trial protocols could result in the test or control group experiencing a disproportionate number of adverse events and could cause a clinical trial to be
delayed, repeated, modified or terminated.

All
of the investigational drug candidates that we are currently developing require extensive pre-clinical and/or clinical testing before we can submit any application for
regulatory approval. Before obtaining regulatory approvals for the commercial sale of any of our investigational drug candidates, we must demonstrate with substantial evidence through
pre-clinical testing and/or clinical trials that our investigational drug candidates are safe and effective in humans for the indication being studied. We may also be asked to complete
retrospective observational studies. The FDA has recently requested that we complete the Feasibility Assessment. Retrospective observational studies can be complex and involve multiple data sources
and electronic records that may not contain all the required information. We may be required to obtain consents from patients to further investigate findings in a retrospective observational study. In
addition, the sample size selected may not be adequate to perform statistical

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analysis
or may not satisfy the requirements for approval. Conducting clinical trials and retrospective observational studies are complex, lengthy, expensive and uncertain processes. Completion of
clinical trials and retrospective observational studies and approval by the FDA may take several years or more. Our ability to complete clinical trials and retrospective observational studies may be
delayed, suspended or terminated by many factors, including, but not limited to:



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Many
of these factors may also ultimately lead to denial of regulatory approval of our investigational drug candidates. If we experience delays, suspensions or terminations and
retrospective observational studies in our clinical trials for a particular investigational drug candidate, the commercial prospects for that investigational drug candidate will be harmed, and we may
be unable to raise additional funds on favorable terms, if at all, or generate product revenues from that investigational drug candidate or revenues would be delayed, our reputation in the industry
and in the investment community would likely be significantly damaged, and our stock price would likely decrease significantly. In addition, many of the factors that cause, or lead to, a delay in the
commencement or completion of clinical trials and retrospective observational studies may also ultimately lead to the denial of regulatory approval of an investigational drug candidate.

Our bioequivalence studies may fail to demonstrate acceptable comparability between formulations of investigational drug candidates used in our Phase 3 clinical
trials and new formulations, if any, of investigational drug candidates we might choose to launch commercially, or choose to commercialize later, after launch.

We may choose to develop a new formulation of any or all of our investigational drug candidates that may be different from the
formulation used in our Phase 3 clinical trials. If changes are made, or if a new formulation is used, we will need to demonstrate comparable bioequivalence between the formulation used in our
Phase 3 clinical trials and the new formulation, should we choose to launch or later commercialize this new formulation. If we are unable to demonstrate that the formulation used in our
Phase 3 clinical trials is bioequivalent to the new formulation we intend to launch or later commercialize, then we may be required to conduct additional clinical trials or repeat some or all
of our Phase 3 clinical trials for our investigational drug candidate, or we may need to develop an alternative commercial formulation for the investigational drug candidate that is
bioequivalent. As a result, our ability to obtain approval of the investigational drug candidate, if any, may be delayed. We have performed a bioequivalence study on a new formulation of QNEXA that we
intend to launch, if approved, which was determined to be equivalent to the formulation used in the Phase 3 trials.

Association with fen-phen could lead to increased scrutiny of our investigational drug candidate, QNEXA.

One of the active ingredients in QNEXA, phentermine, had previously been used in combination with fenfluramine and dexfenfluramine.
Phentermine is the most commonly prescribed anti-obesity drug. As phentermine is an older drug, no new efficacy trials have been conducted, with the exception of several trials on the
combination of phentermine and fenfluramine in the early and mid 1990s and the EQUATE Phase 3 study that contained two phentermine arms. The combination of fenfluramine or PONDIMIN, or fen, and
phentermine, or phen, was known as fen-phen. Fenfluramine received FDA approval in 1973 for the short-term treatment of obesity. Together, phentermine and fenfluramine were
used by doctors to treat obesity. The FDA never approved the fen-phen combination; however, since the FDA approved fenfluramine, doctors were able to prescribe it as needed. The use of
these drugs together for treatment of obesity was considered an off-label and unapproved use. In 1992, a published study cited fen-phen as a more effective method than dieting
or exercise in reducing the weight of the chronically obese.

Neither
combination, however, was ever tested for safety. By the summer of 1997, the Mayo Clinic reported 24 cases of heart valve disease in patients that had taken the
fen-phen combination. The cluster of unusual cases of heart valve disease in fen-phen users suggested a correlation between fen-phen use and heart valve disease. On
July 8, 1997, the FDA issued a Public Health Advisory to report the Mayo findings. The FDA continued to receive additional reports of heart valve disease, including reports from patients who
had taken only fenfluramine or dexfenfluramine. Further

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evaluations
of patients taking fenfluramine or dexfenfluramine showed that approximately 30% had abnormal valve findings. This figure was much higher than expected for abnormal test results and
suggested fenfluramine and dexfenfluramine as the likely causes of Primary Pulmonary Hypertension, or PPH, and valvular heart disease.

In
September 1997, the FDA requested drug manufacturers to voluntarily withdraw fenfluramine and dexfenfluramine. At the same time, the FDA recommended that patients using either
fenfluramine or dexfenfluramine stop taking them. The FDA did not, however, request the withdrawal of phentermine. Although studies to date have not demonstrated that phentermine causes PPH and
valvular heart disease, when used in larger populations, there can be no assurance that QNEXA will not demonstrate rare, but significant cardiovascular or other detrimental side effects when used by
the general population. Moreover, the adverse clinical history of fen-phen and dexfen-phen combinations for obesity may result in increased FDA regulatory scrutiny of the
safety or the risk/benefit profile of QNEXA and may raise potential adverse publicity in the marketplace, which could affect clinical enrollment or ultimately market acceptance if QNEXA is approved
for commercial sale.

Benfluorex
is an anorectic and hypolipidemic agent that is structurally related to fenfluramine. Clinical studies have shown it may improve glycemic control and decrease insulin
resistance in people with poorly controlled type 2 diabetes. On December 18, 2009, the European Medicines Agency recommended the withdrawal of all medicines containing benfluorex in the
European Union because their risks, particularly the risk of heart valve disease (fenfluramine-like cardiovascular side effects), are greater than their benefits. In France, the medication
had been marketed as Mediator by Servier as an adjuvant antidiabetic. It was on the market between 1976 and 2009 and is thought to have caused between 500 and 2,000 deaths. The drug was also used in
Portugal and Cyprus. We are unable to determine the impact of the benfluorex withdrawal, if any, on the MAA for QNEXA.

Our investigational drug candidates may cause undesirable side effects or have other properties that could delay or prevent their regulatory approval or limit the commercial
profile of an approved label.

Side effects caused by our investigational drug candidates could cause us or regulatory authorities to interrupt, delay or halt
clinical trials and could result in a more restricted
label or the delay or denial of regulatory approval by the FDA or other regulatory authorities. The most common side effects reported in the first Phase 3 study of avanafil were headache,
flushing and nasal congestion. The most common side effects reported in our Phase 3 trials of QNEXA were paresthesia (tingling of the extremities), dry mouth, altered taste, headache and
constipation. In addition, the constituent drugs of QNEXA each has its own side effect profile that is included in its current product label. If QNEXA is approved by the FDA, we would anticipate that
the label would, at a minimum, include the side effect profiles of each of the constituent drugs. We also expect the label to include warnings on use in pregnant, nursing mothers or women of
childbearing potential. While the constituent drugs that make up QNEXA have post-marketing safety records and while we have tested these constituent drugs in combination in our clinical
trials of QNEXA, to date, the combination of these constituent drugs has not received regulatory approval. While we believe our Phase 3 QNEXA clinical trials have generated sufficient safety
and efficacy data, the approvability and eventual labeling of QNEXA will be determined by the FDA. For example, in 2007, the Endocrinologic and Metabolic Drugs Advisory Committee convened by the FDA
reviewed another company's investigational obesity drug candidate, rimonabant, and voted not to recommend approval of the investigational drug candidate to the FDA, based on concerns regarding the
safety profile of that investigational drug candidate in particular, depression, suicidality and seizures. Recently, two other obesity medications have also been rejected by the FDA citing safety
concerns.

Phentermine
and topiramate are each separately approved for sale by the FDA and have been on the market for many years. In general, significant adverse events and side effects observed
in pre-clinical, clinical and post-marketing studies are included in the full prescribing information or label

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for
each drug. The label for TOPAMAX contains reports of side effects, warnings and precautions including metabolic acidosis, acute myopia and secondary angle closure glaucoma, decreased sweating and
hyperthermia, cognitive-related dysfunction, psychiatric and behavioral disturbances including one completed suicide in a patient during a bipolar trial, somnolence and fatigue, sudden unexplained
death in epileptics, kidney stones, paresthesia, various drug interactions, congenital malformations and low birth weight in infants born to mothers exposed to topiramate during pregnancy. The label
for ADIPEX, a popular branded form of phentermine, contains warnings and precautions including recommendation against co-administration of phentermine with other drugs for weight loss.
Adverse side effects include, among other things, pulmonary hypertension, valvular heart disease, drug abuse and dependence, overstimulation, restlessness, dizziness, insomnia, euphoria, dysphoria,
tremor, headache, dryness of the mouth, diarrhea, constipation, impotence and changes in libido. The warnings and precautions for both of these drugs are updated often.

Previously
published studies suggest that the administration of topiramate alone, in conjunction with diet and a behavioral modification program, results in weight reduction in obese
patients. The most prominent side effect seen in the published studies was paresthesia (tingling of the extremities), experienced by 42% to 59% of patients. Dropouts due to paresthesia were 5% or
less. In the EQUATE, EQUIP and CONQUER Phase 3 obesity studies, tingling was experienced in 23%, 19% and 21%, respectively, of the patients on the top-dose of QNEXA. In the
Phase 2 diabetes study, paresthesia was experienced by 17% of the patients. The other common adverse events reported in the published topiramate monotherapy studies were also central nervous
system, or CNS, related including fatigue, difficulty with attention, memory and concentration, and depression. In our obesity
and diabetes studies, these CNS-related side effects were low, but they were higher than placebo. The pharmaceutical company performing research of topiramate alone for the treatment of
obesity announced they had discontinued their development program including their controlled- release formulation.

The
FDA has also issued an alert on the use of antiepileptic drugs and a potential risk of increased suicidal ideation. As part of our Phase 3 obesity trials for QNEXA, we
prospectively assessed the potential risk of suicidal tendencies. The results of the extensive assessments performed in our Phase 3 trials for QNEXA indicated no signal for suicidal behavior or
ideation. On July 10, 2008, the FDA held a Joint Meeting of the Peripheral and Central Nervous System Drugs Advisory Committee and the Psychopharmacologic Drugs Advisory Committee. The advisory
committee and representatives from the Pediatric Advisory Committee, and the Drug Safety and Risk Management Advisory Committee considered the results of FDA's analysis of suicidality (both suicidal
ideation and behavior) from placebo-controlled clinical studies of 11 antiepileptic drugs. One of the drugs included in the discussion was topiramate (marketed as TOPAMAX, Ortho-McNeil-Janssen
Pharmaceuticals Inc.). The FDA discussed with the committee, in light of the results, whether any additional actions were necessary. The committee recognized that there was an increased risk of
suicidality and recommended to the FDA that additional information should be provided to patients regarding the risks and benefits of antiepileptic drugs; however, the committee strongly recommended
against a black box warning to be applied to antiepileptic drugs. In December 2008, the FDA asked the manufacturers of the antiepileptic drugs included in the analysis to add warnings about
suicidality to the labels and to issue a medication guide covering the results of the meta-analysis. In April 2009, the FDA approved these new labels. We anticipate that the label for
QNEXA, if approved, will, at a minimum, contain the similar suicidality warnings to those contained in the topiramate label.

The
preliminary experience from an observational registration study conducted in the United Kingdom on women with epilepsy who became pregnant, published in the July 22, 2008
edition ofNeurology, stated that the major congenital malformations, or MCM, rate observed in the study among infants born to women who were taking
topiramate and other antiepileptics during their pregnancy raised some concerns. The UK Epilepsy and Pregnancy Register is a voluntary registry in the United Kingdom that collects information in order
to gather and publish information on the relative safety of

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antiepileptic
drugs in this population. The results of the study were updated and published in the October edition of theJournal of Neurology, Neurosurgery and
Psychiatry. In the study, 245 pregnancies were followed, of which 14 of 162, or 8.6%, had an MCM on polytherapy and three of 83, or 3.6%, had an MCM on topiramate monotherapy.
The MCMs included oral clefts and hypospadias. It has been reported that prenatal exposure to certain antiepileptic drugs increases the risk of MCM from a background risk of between 1% and 2%
to between 4% and 9%.

Pregnant
women or women who planned on becoming pregnant were not eligible to participate in the QNEXA clinical trials. Women of childbearing potential were advised to use and agreed to
use two forms of birth control during the study. Patients who became pregnant during the study period were required to immediately discontinue study medication. In our studies, we had 15 births from
women exposed to QNEXA or topiramate. They were taken off the study medication and followed through to
delivery. While we did not observe any congenital malformations or low birth weight (less than 2,500 gm) in those pregnancies, we anticipate the labeling for QNEXA, if approved, will contain a warning
against use by women who are or are considering becoming pregnant. We might also be required to list QNEXA as a "Category X" drug. Drugs in Category X are designated as such when studies
in animals or humans have demonstrated fetal abnormalities and/or there is positive evidence of human fetal risk based on adverse reaction data from investigational or marketing experience, and the
risks involved in use of the drug in pregnant women clearly outweigh potential benefits. The FDA may also require us to establish a post-approval pregnancy exposure registry. The goal of
pregnancy exposure registries is to provide clinically relevant human data that can be used in a product's labeling to provide medical care providers with useful information for treating or counseling
patients who are pregnant or anticipating pregnancy.

In
the U.S., the label for topiramate has been modified and includes warnings for pregnant mothers. The warnings suggest that topiramate may cause serious adverse fetal effects, based on
pregnancy registry and non-clinical data. There are no adequate and well-controlled studies using topiramate in pregnant women. Topiramate should be used during pregnancy only
if the potential benefit outweighs the potential risk to the fetus. Pregnancy registry data suggest that there may be an association between the use of topiramate during pregnancy and congenital
malformations (e.g., craniofacial defects, such as cleft lip/palate, hypospadias, and anomalies involving various body systems). This has been reported with topiramate monotherapy and
topiramate as part of a polytherapy regimen. Compared with a reference group not taking antiepileptic drugs, registry data for topiramate monotherapy showed a higher prevalence of low birth weight;
however, the dose of topiramate and the duration of use during pregnancy were not reported. A causal relationship has not been established. Several factors affect infant birth weight including
maternal weight, maternal health, concomitant drug use, smoking or alcohol use during pregnancy and use of prenatal vitamins. In the QNEXA clinical studies, none of the infants to mothers exposed to
QNEXA or topiramate during pregnancy acheived low birth weight.

Two
antiepileptic pregnancy registries have reported post-marketing reports of major congenital malformations in infants whose mothers were epileptic and exposed to
topiramate. The dose and duration of topiramate from the North American Registry are unknown. In the UK registry, for the two oral clefts reported in infants, the maternal topiramate exposure was 200
mg and 600 mg. These two registries suggest the MCM rate is higher than compared to various control groups. These reports have been included in the label for topiramate and, if QNEXA is approved, we
may be required to include these reports in the label for QNEXA. At the request of the FDA, we are currently conducting the Feasibility Assessment. If deemed feasible and the retrospective
observational study is completed, the results may be included in the QNEXA label, if approved. In addition, if the risk to women of childbearing potential is deemed unacceptable, QNEXA may not be
approved or any such approval may be limited to men and women of non-childbearing potential. If approval of QNEXA is limited to men and women of non-child bearing potential,
future sales of QNEXA, if approved, would be adversely affected.

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Patients in the year long QNEXA studies had a mean elevation in heart rate at the end of the 56-week studies of 1.3, 0.6 and 1.6 beats per minute on
the low, mid and top dose as compared to no change in the placebo group. Patients also had a decrease in systolic blood pressure of 3.3, 5.2 and 5.2 mmHg on the low, mid and top dose as compared to a
decrease of 2.1 mmHg in the placebo group. The clinical relevance of the increase in heart rate at these levels is unknown. In the CRL, the FDA asked us to provide evidence that the elevations in
heart rate associated with QNEXA do not increase the risk for major adverse cardiovascular events. We have provided evidence from existing information and data analyses to show that the increase in
heart rate associated with QNEXA does not increase the risk for major cardiovascular events; however, there can be no assurance that the FDA will accept or agree with the evidence we provide, that the
FDA will not require us to conduct long-term cardiovascular outcomes studies or other clinical studies prior to approval, or that we will be able to rule out, to the FDA's satisfaction,
that the elevations in heart rate associated with QNEXA do not increase the risk for major adverse cardiovascular events now or in the future.

In
the Phase 3 EQUIP and CONQUER studies, there was no difference between QNEXA (0.4%) and placebo (0.4%) drug-related serious adverse events. In the Phase 3
EQUATE study, there were no reported drug-related serious adverse events. In the Phase 3 avanafil studies, there were no drug related serious adverse events. If our trials are not
successful or are perceived as not successful by the FDA, physicians, analysts, investors, the media or the public in general our business, financial condition and results of operations will be
materially harmed.

If
any of our investigational drug candidates receives marketing approval and we, or others, identify unknown side effects caused by the drug, a number of potentially significant
negative consequences could result, including:



Any
of these events could prevent us from achieving or maintaining market acceptance of QNEXA and could substantially increase the costs of commercializing our investigational drug
candidates.

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Our investigational drug candidate, QNEXA, is a combination of drugs approved individually by the FDA that are commercially available and marketed by other companies. As a
result, our drug may be subject to substitution with individual drugs contained in the QNEXA formulation and immediate competition.

Each of the approved drugs that are combined to produce our investigational drug candidate, QNEXA, is commercially available at prices
lower than the price at which we would seek to market QNEXA, if approved. We cannot be sure that physicians will view QNEXA as sufficiently superior to a treatment regime of QNEXA's individual active
pharmaceutical ingredients as to justify the significantly higher cost we expect to seek for QNEXA, and they may prescribe the individual generic drugs already approved and marketed by other companies
instead of our combination drug. Although our U.S. and European patents contain composition, product formulation and method-of-use claims that we believe protect QNEXA, those
patents may be ineffective to protect against physicians prescribing the individual drugs marketed by other companies instead of our combination drug. Our patents and pending patent applications do
not prevent physicians from prescribing the generic constituents of our investigational drug candidates. Phentermine and topiramate are currently available in generic form, although the doses used in
QNEXA are currently not available and no controlled or sustained release formulation of topiramate exists. We believe that a practitioner seeking safe and effective therapy is not likely to prescribe
such off-label generics in place of QNEXA because the dosage strengths, pharmacokinetic profiles and titration regimens recommended for QNEXA are not available using existing generic
preparations of immediate release, or IR, phentermine or topiramate. However, to the extent that the price of QNEXA is significantly higher than the prices of the individual components as marketed by
other companies, physicians may have a greater incentive to write prescriptions for the individual
components instead of for our combination drug, and this may limit how we price or market QNEXA. Similar concerns could also limit the reimbursement amounts private health insurers or government
agencies in the U.S. are prepared to pay for QNEXA, which could also limit market and patient acceptance of our drug, and could negatively impact our revenues. A physician could seek to prescribe
off-label generics in place of QNEXA. Off-label use occurs when a drug that is approved by the FDA for one indication is legally prescribed by physicians for a different
indication not approved by the FDA. Topiramate, one of the ingredients in QNEXA, is not approved for obesity treatment.

With
regard to off-label substitution at the pharmacy level, we cannot be certain that pharmacists and/or pharmacy benefit managers will not seek prescriber authorization to
substitute generics in place of QNEXA, which could significantly diminish its market potential. Wide scale generic substitution by physicians and at the pharmacy level could have substantial negative
consequences to our business.

In
many regions and countries where we may plan to market QNEXA, including Europe and Canada, the pricing of prescription drugs is controlled by the government or regulatory agencies.
The government or regulatory agencies in these countries could determine that the pricing for QNEXA should be based on prices for its active pharmaceutical ingredients when sold separately, rather
than allowing us to market QNEXA at a premium as a new drug.

We
may choose or be required by regulatory authorities to restrict distribution of QNEXA to specialty pharmacies after physicians and patients register to ensure a safe and secure
launch. Our success in distributing our investigational drug candidate in this manner could be limited, which could have an adverse effect on our business, financial condition, results of operations
and cash flow.

The FDA and other regulatory agencies will likely require more extensive or expensive trials for our combination investigational drug candidate, QNEXA, than may be required
for single agent pharmaceuticals.

To obtain regulatory approval for QNEXA, we are required to show that each active pharmaceutical ingredient in our investigational drug
candidate makes a contribution to the combined investigational drug candidate's claimed effects and that the dosage of each component, including amount, frequency and duration, is such that the
combination is safe and more effective than each of

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the
components. As a result, we were required to include in our clinical trial protocols an evaluation of each component drug as well as for the component drug in combination. This required us to
conduct more extensive and more expensive clinical trials than would be the case for many single agent
pharmaceuticals. The need to conduct such trials could make it more difficult and costly to obtain regulatory approval of QNEXA than of a new drug containing only a single active pharmaceutical
ingredient. The OB-301, or EQUATE, Phase 3 trial was designed to meet the combination guidelines set by the FDA. The EQUATE study contained separate component arms as well as the
combination. We believe the results of the EQUATE study meet FDA guidelines for combination therapy studies; however, there can be no assurance that we have satisfied the combination requirements to
the FDA's satisfaction or that further testing of the combination will not be required. The EQUATE study also contained a mid-dose of QNEXA containing 7.5 mg of phentermine and 46 mg of
topiramate CR. The mid-dose was also included in the CONQUER, or OB-303, study. We did not complete a component study for the low-dose. We have filed for approval
of all three doses. The number of patients on the low-dose in OB-302 or the mid-dose in the OB-303 study may not be sufficient for approval. We have no
assurance that any of the doses of QNEXA will be approved or that additional pre-clinical and clinical testing may not be needed prior to approval. In addition, if the FDA does not approve
the top-dose of QNEXA, there is no assurance that they would approve the mid-dose or any other dose of QNEXA. In the CRL received on October 28, 2010, there were no
deficiencies noted relating to the combination guidelines or exposure numbers by dose; however, until approval, there can be no assurance that these items will not be subject to further review and
comment by the FDA.

We have in-licensed all or a portion of the rights to our investigational drug candidates from third parties. If we default on any of our material obligations
under those licenses, we could lose rights to our investigational drug candidates.

We have in-licensed and otherwise contracted for rights to our investigational drug candidates, and we may enter into
similar licenses in the future to supplement our investigational drug candidate pipeline. Under the relevant agreements, we are subject to commercialization, development, supply, sublicensing,
royalty, insurance and other obligations. If we fail to comply with any of these requirements, or otherwise breach these license agreements, the licensor may have the right to terminate the license in
whole or to terminate the exclusive nature of the license. Loss of any of these licenses or the exclusive rights provided therein could harm our financial condition and operating results.

In
particular, the rights to avanafil were licensed from Tanabe Seiyaku Co., Ltd., or Tanabe, in 2001. In October 2007, Tanabe and Mitsubishi Pharma Corporation completed
their merger and announced their name change to Mitsubishi Tanabe Pharma Corporation, or MTPC. We are in discussion with MTPC about certain aspects of the license agreement relating to the manufacture
and supply of products. Failure to reach agreement with MTPC may have an adverse impact on the commercial future of avanafil. The rights to QNEXA were licensed from Dr. Najarian in 2001. We
believe we are in compliance with all the material terms of our current agreements; however, there can be no assurance that this compliance will continue or that the licensors would not have a
differing interpretation of the material terms of the agreements. If the license agreements were terminated early or if the terms of the license were contested for any reason, it would have a material
adverse impact on our ability to commercialize products subject to these agreements, our ability to raise funds to finance our operations, our stock price and our overall financial condition. The
monetary and disruption costs of any disputes involving our collaborative agreements could be significant despite rulings in our favor.

For
example, VIVUS and Acrux Limited, through its wholly owned subsidiary FemPharm Pty Ltd., or Acrux, were parties to the Testosterone Development and Commercialization Agreement
dated February 12, 2004, or the Testosterone Agreement. The Testosterone Agreement covered our investigational drug candidate, Luramist, which was licensed from Acrux under the Testosterone

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Agreement.
On November 5, 2007, Acrux made a demand for arbitration under the Testosterone Agreement regarding certain claims related to Luramist. Acrux's demand sought a reversion of all
rights assigned to us related to Luramist, monetary damages and the payment of a milestone payment for Luramist under the Testosterone Agreement and declaratory relief. We asserted counterclaims
against Acrux in the arbitration and sought the enforcement of our rights under the Testosterone Agreement. The arbitration hearing concluded on January 23, 2009, and on April 6, 2009
the panel of arbitrators, or the Panel, issued its Interim Arbitration Award finding in favor of the Company that we were in compliance with the Testosterone Agreement and denying all of the relief
sought by Acrux in its demand. The Panel found that we had used diligent, commercially reasonable efforts to develop Luramist. The Panel further ruled in our favor on our counterclaim that Acrux had
breached the Testosterone Agreement by failing to provide certain know-how and certain improvements in the formulation and delivery device for Luramist. The Panel denied the Acrux claim
for additional milestone payments. The Panel ordered Acrux to turn over certain information to us that was previously withheld in violation of the Testosterone Agreement by Acrux. After the parties
failed to agree on a new Outside Date by which we were to commence our first Phase 3 trial for Luramist, the Panel reset the Outside Date of April 30, 2006 to April 1, 2010 to
reflect the regulatory environment. On March 30, 2010, we provided written notice to Acrux of our intent to terminate the Testosterone Agreement. On April 6, 2010, in connection with
Acrux's request for further briefing on the issue of damages in light of the our termination of the Testosterone Agreement, the Panel ordered the parties to enter into settlement discussions and to
report back to the Panel no later than May 17, 2010 on whether a settlement had been reached. On May 6, 2010, the parties agreed to the terms of a settlement agreement and mutual
release, or the Settlement Agreement, resolving any and all claims or potential claims in the arbitration and that may have or could have arisen from any case whatsoever, other than certain rights and
obligations that survive the termination of the Testosterone Agreement or are required by the Settlement Agreement. Pursuant to the Settlement Agreement, we have transferred Luramist-related assets to
Acrux, including clinical trial material, batch release documents, inventory of applicators, FDA correspondence, intellectual property and know-how and trademarks. In addition, we have
ceased our clinical study program for Luramist as part of the settlement. The parties have not exchanged cash payments as a result of the settlement and termination of the Testosterone Agreement. The
Panel retains jurisdiction over the matter to enforce the terms of the Settlement Agreement. Although we have now returned the rights to Luramist to Acrux and resolved the arbitration, there can be no
assurance that Acrux will not pursue legal action against us for any of our continued obligations under the settlement or the provisions of the Testosterone Agreement that survive the termination. The
monetary and disruption costs of this arbitration have been significant despite the favorable rulings by the Panel.

While we may be entitled to future milestone payments under existing contractual arrangements, we may not receive these payments.

Certain of our contractual arrangements include future milestone payments to us based upon the other party achieving defined sales
targets. Meeting those milestone targets is dependent on the performance of the other party to the contractual arrangement and we have little, or no, control over those outcomes. We have no assurance
any of those milestone targets will be achieved and that the milestones will be paid to us.

For
example, on March 30, 2007, we entered into a definitive agreement with K-V Pharmaceutical Company, or K-V, to transfer the assets and grant a
sublicense of our rights under our licensing agreement with Acrux related to Evamist, a metered-dose transdermal spray for the treatment of menopause symptoms, to K-V. Under
the terms of this agreement, we are also eligible to receive certain one-time payments of up to $30 million based on K-V achieving certain annual net sales thresholds
for Evamist. In January 2009, K-V and certain of its subsidiaries announced a voluntary recall of most of its prescription drugs. In addition, K-V voluntarily suspended the
manufacturing and shipping of all of its

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products.
Subsequent to the recall, K-V announced plans to reduce its workforce by 700 employees. Evamist is not manufactured by K-V and was not subject to the recall. In July
2009, K-V announced that it had hired a firm that specializes in restructurings and bankruptcies. Given the uncertainties with K-V, it is difficult to determine the extent of
the adverse impact on Evamist. Although we are entitled to additional milestone payments from future sales of Evamist by K-V, at the present time we do not anticipate receiving any
additional milestone payments from sales of Evamist.

On
October 1, 2010, we entered into a definitive Asset Purchase Agreement with Meda AB, or Meda, to sell certain rights and assets related to MUSE. The transaction closed on
November 5, 2010. Under the terms of the transaction, we are eligible to receive an additional $1.5 million based on future sales of MUSE, provided that certain sales milestones are
reached. There can be no guarantee that these future sales milestones will be achieved or that we will receive this additional compensation related to the sale of MUSE.

We are dependent upon collaborative arrangements and strategic alliances.

We are, and in the future expect to be, dependent upon collaborative arrangements or strategic alliances to complete the development
and commercialization of some of our
investigational drug candidates, particularly after the Phase 2 stage of clinical testing. These arrangements may place the development of our investigational drug candidates outside of our
control, may require us to relinquish certain rights or pay royalties, or may otherwise be on terms unfavorable to us. In October 2007, Tanabe and Mitsubishi Pharma Corporation completed their merger
and announced their name change to Mitsubishi Tanabe Pharma Corporation, or MTPC. The rights and obligation of our license agreement with Tanabe have been transferred to MTPC. It is unclear at this
time what effect, if any, the merger has had on our agreement with MTPC. There can be no guarantee that the merger will not have an adverse material effect on the performance by MTPC under our
agreement, which in turn could lead to a material adverse effect on our business, financial condition and results of operations.

We
may be unable to enter into favorable agreements with third parties, which could delay or impair our ability to develop and commercialize our investigational drug candidates and could
increase our costs of development and commercialization. Dependence on collaborative arrangements or strategic alliances will subject us to a number of risks, including the risk
that:



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Although we may terminate an existing collaborative arrangement or other agreement, we could be subject to continued costs or obligations thereunder.

The majority of our agreements with third parties contain termination clauses that provide for cancellation or termination of the
agreement under certain circumstances. We may decide to terminate our agreements with third parties for business or other reasons at any time. For example, we have entered into contractual agreements
for services in anticipation of the commercial launch of QNEXA. Although we may terminate these or any other agreements, we could be subject to continued costs or obligations under the terminated
agreements.

We face significant governmental regulation during our investigational drug candidate development activities.

The research, testing, manufacturing, selling and marketing of investigational drug candidates and approved pharmaceuticals is subject
to extensive regulations by the FDA and other regulatory agencies in the U.S. and other countries. We cannot predict with certainty if or when we might submit for regulatory review our investigational
drug candidates currently under development, except for QNEXA, for which the NDA was submitted to the FDA on December 29, 2009 and for which we are currently in the process of resubmitting an
NDA amendment. Even if submitted, the FDA can suspend or modify clinical studies at any time if the agency believes that the patients participating in such studies are being exposed to unacceptable
health risks.

Regulatory
approval is never guaranteed, and the approval process typically takes several years and is extremely expensive. The FDA has substantial discretion in the drug approval
process. Despite the time and expense involved, failure can occur at any stage.

In
July 2008, an FDA advisory committee discussed the role of cardiovascular outcomes assessment in the pre-approval and post-approval settings for drugs and
biologics developed for the treatment of type 2 diabetes mellitus. The advisory committee recommended that sponsors conduct a long-term cardiovascular trial or to provide other
equivalent evidence to rule out an unacceptable cardiovascular risk. The FDA has since published a guidance document in December 2008 for the evaluation of cardiovascular risk in new antidiabetic
therapies specifically for the treatment of type 2 diabetes. In general, the FDA recommends that sponsors should compare the incidence of important cardiovascular events occurring with the
antidiabetic investigational agent to the incidence of the same type of events with the control group to estimate the relative risk of the investigational antidiabetic agent. This may be accomplished
by either conducting an integrated analysis (meta-analysis) of the Phase 2 and Phase 3 studies, if the investigational drug was in late-stage development at the
time the December 2008 guidance was published, or conduct a single, large, prospective long-term cardiovascular safety outcomes study prior to NDA submission. A long-term
cardiovascular study would take several years to complete and would require financial and personnel resources that may be beyond our current capabilities. QNEXA, in development for diabetes is subject
to this recommendation. The FDA, however, has neither required a meta-analysis of the QNEXA Phase 2 and 3 data, nor a prospective long-term cardiovascular safety
outcomes study to be performed for QNEXA as a treatment for obesity. There can be no assurance, however, that the FDA would not in the future require us to perform a cardiovascular safety outcomes
study, pre- or post-approval, for QNEXA as a treatment for obesity. Previously, the FDA notified healthcare professionals that the review of data from a
post-approval outcomes trial of an anti-obesity agent, subutramine, indicates an increased risk of heart attack and stroke in patients with a history of cardiovascular disease.
Based on the serious nature of the review findings, the FDA requested, and the manufacturer agreed, to add a new contraindication to the sibutramine drug label stating that sibutramine is not to be
used in patients with a history of cardiovascular disease. In 2010, subutramine was withdrawn from the market in the U.S. and in the EU. Recently, Orexigen Therapeutics, the developer of Contrave,
received a CRL and reported that the CRL stated that before the NDA could be approved they must conduct a randomized, double-blind, placebo-controlled trial of sufficient size and duration to
demonstrate that the risk of major

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adverse
cardiovascular events in overweight and obese subjects treated with naltrexone/bupropion does not adversely affect the drug's benefit-risk profile. We have no insight as to the
cost, design or timing of this required study. We have no reason to believe QNEXA would be subject to the same requirements. If we are required to complete a long-term cardiovascular
safety outcomes study for QNEXA, the ultimate approval may be delayed for several years and the overall cost of the program will significantly increase.

In
June 2007, an FDA advisory committee recommended against approval of rimonabant, an oral obesity treatment that targets the CB1 receptor system. Rimonabant was a centrally acting drug
that
reduced patients' desire to eat being developed by another company. The advisory committee expressed concerns about the impact of the drug on depressed patients and also expressed concerns about
patients having thoughts about suicide. In addition, concerns about rimonabant's mechanism of action and interference with the CB1 receptor pathway were also voiced. The company withdrew its NDA for
rimonabant shortly after the advisory committee meeting. Although the active ingredients in QNEXA have been previously approved by FDA at higher doses for other indications, it is a centrally acting
drug that may increase the risk of psychiatric side effects such as depression and/or suicidal ideation.

We
are not permitted to market any of our investigational drug candidates in the U.S. until we receive approval from the FDA. As a consequence, any failure to obtain or delay in
obtaining FDA approval for our investigational drug candidates would delay or prevent our ability to generate revenue from our investigational drug candidates, which would adversely affect our
financial results and our business.

Our applications for regulatory approval could be delayed or denied due to problems with studies conducted before we licensed some of our investigational drug candidates
from third parties.

We currently license some of our investigational drug candidates from third parties. Our present development programs involving these
investigational drug candidates rely in part upon previous development work conducted by third parties over whom we had no control and before we licensed the investigational drug candidates. In order
to receive regulatory approval of an investigational drug candidate, we must present to the FDA for its review all relevant data and information obtained during research and development, including
research conducted prior to our license of the investigational drug candidate. Although we are not currently aware of any such problems, any problems that emerge with research and testing conducted
prior to our licensing an investigational drug candidate may affect future results or our ability to document prior research and to conduct clinical trials, which could delay, limit or prevent
regulatory approval for our investigational drug candidates.

Following regulatory approval of any investigational drug candidates, we will be subject to ongoing regulatory obligations and restrictions, which may result in significant
expense and limit our ability to commercialize our potential drugs.

If one of our investigational drug candidates is approved by the FDA or by another regulatory authority for a territory outside of the
U.S., we will be required to comply with extensive regulations for drug manufacturing, labeling, packaging, adverse event reporting, storage, distribution, advertising, promotion and record keeping.
Regulatory approvals may also be subject to significant limitations on the indicated uses or marketing of the investigational drug candidates or to whom and how we may distribute our products. Even if
U.S. regulatory approval is obtained, the FDA may still impose significant restrictions on a drug's indicated uses or marketing or impose ongoing requirements for potentially costly
post-approval studies. For example, the label ultimately approved for QNEXA, if any, may include restrictions on use, including restrictions based on childbearing potential or pregnancy
status, level of obesity and duration of treatment or a boxed warning related to concerns regarding antidepressants, antiepileptics or otherwise. The FDA may also require the distribution of a
Medication Guide to patients outlining the increased risk of suicidal thinking or behavior in children and

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adolescents
or other populations. The FDA could also require a registry to track the patients utilizing the drug or implement a risk evaluation mitigation strategy, or REMS, that could restrict access
to the drug.

Potentially
costly post-marketing clinical studies may be required as a condition of approval to further substantiate safety or efficacy, or to investigate specific issues of
interest to the regulatory authority.

Manufacturers
of drug products and their facilities are subject to continual review and periodic inspections by the FDA and other regulatory authorities for compliance with current good
manufacturing practices, or cGMP, regulations, which include requirements relating to quality control and quality assurance as well as the corresponding maintenance of records and documentation.
Further, regulatory agencies must approve these manufacturing facilities before they can be used to manufacture our future approved drugs, if any, and these facilities are subject to ongoing
regulatory inspections. In addition, regulatory agencies subject a drug, its manufacturer and the manufacturer's facilities to continual review and inspections. The subsequent discovery of previously
unknown problems with a drug, including adverse events of unanticipated severity or frequency, or problems with the facility where the drug is manufactured, may result in restrictions on the marketing
of that drug, up to and including withdrawal of the drug from the market. If our manufacturing facilities or those of our suppliers fail to comply with applicable regulatory requirements, it could
result in regulatory action and additional costs to us. Failure to comply with applicable FDA and other regulatory requirements may, either before or after product approval, if any, subject our
company to administrative or judicially imposed sanctions, including:



In
addition, the law or regulatory policies governing pharmaceuticals may change. New statutory requirements may be enacted or additional regulations may be enacted that could prevent or
delay regulatory approval of our investigational drug candidates. Contract Manufacturing Organizations, or CMOs, and their vendors or suppliers may also face changes in regulatory requirements from
governmental agencies in the U.S. and other countries. We cannot predict the likelihood, nature, extent or effects of government regulation that may arise from future legislation or administrative
action, either in the U.S. or elsewhere. If we are not able to maintain regulatory compliance, we might not be permitted to market any future approved drugs and our business could suffer.

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Even if we receive regulatory approval to commercialize our investigational drug candidates, our ability to generate revenues from any resulting drugs will be subject to a
variety of risks, many of which are out of our control.

Even if our investigational drug candidates obtain regulatory approval, those drugs may not gain market acceptance among physicians,
patients, healthcare payers or the medical community. The indication may be limited to a subset of the population or we may implement a distribution system and patient access program that is limited.
Coverage and reimbursement of our investigational drug candidates by third-party payers, including government payers, generally is also necessary for optimal commercial success. We believe that the
degree of market acceptance and our ability to generate revenues from such drugs will depend on a number of factors, including:



If
approved, our investigational drug candidates may fail to achieve market acceptance or generate significant revenue to achieve or sustain profitability. In addition, our efforts to
educate the medical community and third-party payers on the benefits of our investigational drug candidates may require significant resources and may never be successful.

We have limited sales and marketing experience and resources and we may not be able to effectively market and sell our investigational drug candidates, if approved, in the
U.S. and/or internationally without a global pharmaceutical partner.

We are developing QNEXA, our investigational drug candidate for the treatment of obesity, for large markets traditionally served by
general and family practitioners and internists. Generalist physicians number in the several hundred thousands in the U.S.. Traditional pharmaceutical companies employ groups of sales representatives
numbering in the thousands to call on this large generalist physician population. In order to adequately address these physician groups, we must establish sales and marketing collaborations or
co-promotion arrangements or expend significant resources to develop our own sales and marketing presence. We currently have no resources and may not be successful in

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developing
our own sales and marketing presence or establishing sales and marketing collaborations or co-promotion arrangements on acceptable terms, if at all. We may also decide to forego
any form of collaboration and develop sales and marketing capabilities on our own. We also face
competition in our search for collaborators, co-promoters and sales force personnel. We may rely on third parties to develop or commercialize our investigational drug candidates. These
third parties may fail to develop or effectively commercialize our investigational drug candidates because they cannot obtain the necessary regulatory approvals, decide to pursue a competitive
potential product that may be developed outside of the collaboration or fail to devote the resources necessary to realize the full commercial potential of our investigational drug candidates.

Even if our investigational drug candidates receive regulatory approval in the U.S., we may never receive approval for or commercialize our drugs outside of the U.S..

To market any of our investigational drug candidates outside of the U.S., we and our partners must comply with numerous and varying
regulatory requirements of other countries. Approval procedures vary among countries and can involve additional product testing and additional administrative review periods. The time required to
obtain approval in other countries might differ from that required to obtain FDA approval. The regulatory approval process in other countries may include all of the risks associated with FDA approval
as well as additional, presently unanticipated, risks. Regulatory approval in one country does not ensure regulatory approval in another, but a failure or delay in obtaining regulatory approval in one
country may negatively impact the regulatory process in others. Failure to obtain regulatory approval in other countries or any delay or setback in obtaining such approval could have the same adverse
effects detailed above regarding FDA approval in the U.S.. As described above, such effects include the risks that our investigational drug candidates may not be approved for all indications
requested, which could limit the uses of our investigational drug candidates and have an adverse effect on their commercial potential or require costly, post-marketing
follow-up studies. On December 17, 2010, we filed a Marketing Authorization Application, or MAA, with the European Medicines Agency, or EMA, for QNEXA Controlled-Release Capsules in
the European Union, or EU. The proposed indication in the EU is for the treatment of obesity, including weight loss and maintenance of weight loss, and should be used in conjunction with a mildly
hypocaloric diet. If approved in the EU, QNEXA could be recommended for obese adult patients (BMI 3 30 kg/m2), or overweight patients (BMI
3 27 kg/m2) with weight-related co-morbidities such as hypertension, type 2 diabetes, dyslipidemia, or central adiposity (abdominal
obesity). The EMA's review of QNEXA will follow their centralized marketing authorization procedure. If approved, QNEXA could receive marketing authorization in all 27 EU member countries. The MAA was
officially validated for central procedure on January 19, 2011.

We rely on third parties to conduct pre-clinical clinical and retrospective observational trials and studies for our investigational drug candidates and those
third parties may not perform satisfactorily.

We do not have the ability to conduct pre-clinical, clinical or retrospective observational studies for our investigational
drug candidates without the assistance of third parties who conduct the studies on our behalf. These third parties are usually toxicology facilities, safety monitoring companies, epidemiologists,
clinical investigators and clinical sites and clinical research organizations, or CROs, which have significant resources and experience in the conduct of pre-clinical and clinical studies.
The toxicology facilities conduct the pre-clinical safety studies as well as all associated tasks connected with these studies. Safety monitoring companies collect reported adverse events
that are reported from patients and healthcare providers during clinical trials. Clinical investigators and clinical sites enroll patients and conduct clinical testing according to clinical protocols.
Epidemiologists employ programmers and have access to electronic databases that allow them to perform historical studies. The CROs typically review data generated by clinical investigators, perform
project management, data management, statistical analysis, and other reporting functions. We intend to use several different

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facilities
and CROs for all of our pre-clinical and clinical studies. We have contracted with a safety monitoring company that we intend to use for all of our clinical trials. If these
third party toxicology facilities, the safety monitoring company, clinical investigators, clinical sites or CROs do not successfully carry out their contractual duties or meet expected timelines, we
may not be able to obtain regulatory approvals for our investigational drug candidates on a timely basis, if at all, and we may not be able to successfully commercialize these investigational drug
candidates. If these third party toxicology facilities, the safety monitoring company, clinical investigators, epidemiologists, clinical sites or CROs do not perform satisfactorily, we may not be able
to locate acceptable replacement third parties or enter into favorable agreements with these third parties, if at all. These third parties may also fail economically, which would impact our ability to
obtain and utilize the results of the studies performed by these third parties.

We rely on third parties and collaborative partners to manufacture sufficient quantities of compounds within product specifications as required by regulatory agencies for
use in our pre-clinical and clinical trials and future commercial operations and an interruption to this service may harm our business.

We do not have the ability to manufacture the materials we use in our pre-clinical and clinical trials and future
commercial operations. Rather, we rely on various third parties to manufacture these materials and there may be long lead times to obtain materials. There can be no assurance that we will be able to
identify, qualify and obtain prior regulatory approval for additional sources of clinical materials. If interruptions in this supply occur for any reason, including a decision by the third parties to
discontinue manufacturing, technical difficulties, labor disputes, natural or other disasters, or a failure of the third parties to follow regulations, we may
not be able to obtain regulatory approvals for our investigational drug candidates and may not be able to successfully commercialize these investigational drug candidates.

We
or our third-party manufacturers and collaborative partners may encounter delays and problems in manufacturing our investigational drug candidates or approved drugs for a variety of
reasons, including accidents during operation, failure of equipment, delays in receiving materials, natural or other disasters, political or governmental changes, or other factors inherent in
operating complex manufacturing facilities. Supply chain management is difficult. Commercially available starting materials, reagents and excipients may become scarce or more expensive to procure, and
we may not be able to obtain favorable terms in agreements with subcontractors. We or our third-party manufacturers may not be able to operate our respective manufacturing facilities in a
cost-effective manner or in a time frame that is consistent with our expected future manufacturing needs. If we or our third-party manufacturers cease or interrupt production or if our
third-party manufacturers and other service providers fail to supply materials, products or services to us for any reason, such interruption could delay progress on our programs, or interrupt the
commercial supply, with the potential for additional costs and lost revenues. If this were to occur, we may also need to seek alternative means to fulfill our manufacturing needs.

We
have completed the development of a once-a-day formulation of QNEXA for the treatment of obesity. The contract manufacturer we selected to develop a
once-a-day formulation supplied the entire product for the Phase 3 program. In addition, this contract manufacturer is our sole source of clinical and commercial
supplies for QNEXA. While this contract manufacturer has significant experience in commercial scale up manufacturing, there is no assurance that they will be successful with the commercial scale up of
QNEXA, which could have a material adverse impact on our development plan, market price of our common stock and financial condition.

In
the case of avanafil, we rely on MTPC to supply the active pharmaceutical ingredient, or API, and the finished goods. The MTPC manufacturing site where the materials are made for
avanafil will be subject to a pre-approval inspection by the FDA. We are informed that this particular manufacturing site has never made any materials or products that have been approved
by the FDA. This site has not

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been
subject to a pre-approval inspection in the past nor has it ever manufactured commercial quantities of avanafil. If MTPC is unable to receive and maintain approval from the FDA or
manufacture avanafil API in sufficient quantities to meet projected demand, the approval and future sales of avanafil will be adversely effected, which in turn could have a detrimental impact on our
financial results.

We rely on third parties to maintain appropriate levels of confidentiality of the data compiled during clinical, pre-clinical and retrospective observational studies and
trials.

We seek to maintain the confidential nature of our confidential information through contractual provisions in our agreements with third
parties, including our agreements with clinical research organizations, or CROs, that manage our clinical studies for our investigational drug candidates. These CROs may fail to comply with their
obligations of confidentiality or may be required as a matter of law to disclose our confidential information. As the success of our clinical studies depends in large part on our confidential
information remaining confidential prior to, during and after a clinical study, any disclosure could have a material adverse effect on the outcome of a clinical study, our business, financial
condition and results of operations.

Risks Relating to our Operations

If we, or our suppliers, fail to comply with FDA and other regulatory agency regulations relating to our commercial manufacturing operations, we may be prevented from
manufacturing our approved drugs, if any, or may be required to undertake significant expenditures to become compliant with such regulations.

After regulatory approval for a product is obtained, the product is subject to continual regulatory review. Manufacturing, labeling and
promotional activities are continually regulated by the FDA and equivalent foreign regulatory agencies. For example, our third party manufacturers are required to maintain satisfactory compliance with
current Good Manufacturing Practices, or cGMP. If these manufacturers fail to comply with applicable regulatory requirements, our ability to manufacture, market and distribute our drugs may be
adversely affected. In addition, the FDA could issue warning letters or could require the seizure or recall of products. The FDA could also impose civil penalties or require the closure of our
contract manufacturing facility until cGMP compliance is satisfactorily achieved.

We
obtain the necessary raw materials and components for the manufacture of QNEXA and avanafil as well as certain services, such as analytical testing packaging and labeling, from third
parties. We currently contract with suppliers and service providers, including foreign manufacturers. We and these suppliers and service providers are required to follow cGMP requirements and are
subject to routine and unannounced inspections by the FDA and by state and foreign regulatory agencies for compliance with cGMP requirements and other applicable regulations. Upon inspection of these
facilities, the FDA or foreign regulatory agencies may find the manufacturing process or facilities are not in compliance with cGMP requirements and other regulations.

Failure
to achieve satisfactory cGMP compliance as confirmed by routine and unannounced inspections could have a material adverse effect on our ability to continue to manufacture and
distribute our commercial drugs, if approved, and, in the most serious case, result in the issuance of a regulatory warning letter or seizure or recall of products, injunction and/or civil penalties
or closure of our manufacturing facility until cGMP compliance is achieved.

If we fail to comply with healthcare regulations, we could face substantial penalties and our business, operations and financial condition could be adversely affected.

Even though we do not and will not control referrals of healthcare services or bill directly to Medicare, Medicaid or other third party
payers, certain federal and state healthcare laws and regulations pertaining to fraud, abuse and patients' rights are and will be applicable to our business.

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We
are subject to healthcare fraud, abuse and patient privacy regulation by both the federal government and the states in which we conduct our business. The regulations that may affect our ability to
operate include, but are not limited to:



If
our operations are found to be in violation of any of the laws described above or any other governmental regulations that apply to us, we may be subject to penalties, including civil
and criminal penalties, damages, fines, exclusion of our drugs, if approved, from medical healthcare programs like Medicare and Medicaid, and the curtailment or restructuring of our operations. Any
penalties, damages, fines, curtailment or restructuring of our operations could adversely affect our ability to operate our business and our financial results. Although compliance programs can
mitigate the risk of investigation and prosecution for violations of these laws, the risks cannot be entirely eliminated. Any action against us for violation of these laws, even if we successfully
defend against it, could cause us to incur significant legal expenses and divert our management's attention from the operation of our business. Moreover, achieving and sustaining compliance with
applicable federal and state privacy, security and fraud laws may prove costly.

Any pre-marketing and marketing activities for our investigational drug candidates are subject to continued governmental regulation.

Prior to and after product approval by the FDA, any pre-marketing and marketing activities will be subject to FDA and other
regulatory review. Certain activities undertaken prior to approval may be considered pre-approval promotion. Pre-approval promotion of investigational drug candidates is
prohibited by FDA regulations. Failure to comply with these regulations may result in delays in the ultimate approval of our investigational drug candidates. After approval, if products are marketed
in contradiction with FDA mandates, the FDA may issue warning letters that require specific remedial measures to be taken, as well as an immediate cessation of the impermissible conduct resulting in
adverse publicity. The FDA may also order that all future promotional materials receive prior agency review and approval before use. Certain states have also adopted regulations and reporting
requirements surrounding the promotion of pharmaceuticals. QNEXA, if approved, would be subject to these regulations. Failure to comply with state requirements may affect our ability to promote or
sell pharmaceuticals drugs in certain states. This in turn could have a material adverse impact on our financial results and financial condition.

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We must continue to monitor the use of our drugs, if approved, and may be required to complete post-approval studies mandated by the FDA.

Even if we receive regulatory approval of our investigational drug candidates, such approval may involve limitations on the indicated
uses or marketing claims we may make for our drugs and distribution channels. The FDA may also require us to commit to perform lengthy post-approval studies, for which we would have to
expend significant additional resources, which could have an adverse effect on our operating results, financial condition and stock price. Failure to comply with the applicable regulatory requirements
can result in, among other things, civil penalties, suspensions of regulatory approvals, product recalls, operating restrictions and criminal prosecution. The restriction, suspension or revocation of
regulatory approvals or any other failure to comply with regulatory requirements could have a material adverse effect on our business, financial condition, results of operations and stock price.

Sales of any future drugs are subject to continued governmental regulation, as well as our ability to accurately forecast demand and our ability to produce sufficient
quantities to meet demand.

Sales of any future drugs both inside and outside the U.S. will be subject to regulatory requirements governing marketing approval.
These requirements vary widely from country to country and could delay the introduction of our proposed drugs in those countries. After the FDA and international regulatory authorities approve a
product, we must manufacture sufficient volumes to meet market demand. This is a process that requires accurate forecasting of market demand. There is no guarantee that there will be market demand for
any future drugs or that we will be able to successfully manufacture or adequately support sales of any future drugs.

We have limited sales and marketing capabilities in the U.S..

If we are unable to establish capabilities to sell, market and distribute our investigational drug candidates, either by developing our
own capabilities or entering into agreements with others, we will not be able to successfully launch our investigational drug candidates upon FDA approval. We cannot guarantee that we will be able to
hire the qualified sales and marketing personnel we need. We may not be able to enter into any marketing or distribution agreements with third party providers on acceptable terms, if at all. In that
event, our ability to generate revenues will be adversely affected.

The markets in which we operate are highly competitive and we may be unable to compete successfully against new entrants or established companies.

Competition in the pharmaceutical and medical products industries is intense and is characterized by costly and extensive research
efforts and rapid technological progress. We are aware of several pharmaceutical companies also actively engaged in the development of therapies for the treatment of obesity, diabetes and sexual
health and medical device companies for the treatment of sleep apnea. Many of these companies have substantially greater research and development capabilities as well as substantially greater
marketing, financial and human resources than we do. In addition, many of these companies have significantly greater experience than us in undertaking pre-clinical testing, human clinical
trials and other regulatory approval procedures. Our competitors may develop technologies and products that are more effective than those we are currently marketing or researching and developing. Such
developments could render our drugs, if approved, or our investigational drug candidates less competitive or possibly obsolete. We are also competing with respect to marketing capabilities and
manufacturing efficiency, areas in which we have limited experience. Mergers, acquisitions, joint ventures and similar events may also significantly change the competition.

Current
approved anti-obesity drugs include Xenical (orlistat), marketed by Roche, the over-the-counter version, alli, marketed by GlaxoSmithKline,
and phentermine, which is available from several generic manufacturers. Orlistat works by inhibiting lipase, thus preventing digestion and

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absorption
of dietary fat in the gastrointestinal tract. Meridia (sibutramine) was previously marketed by Abbott Laboratories; however, in October 2010, Abbott Laboratories withdrew Meridia in the
U.S. at the FDA's request. The FDA requested the withdrawal because they believed Meridia's risks were not justified compared with the modest weight loss that patients achieved on the drug. In January
2010, the EMA suspended the marketing authorization of sibutramine in Europe. The impact on QNEXA of the withdrawal of sibutramine is unknown at this time. There are several drugs in development for
obesity including an investigational drug candidate, liraglutide in Phase 3 clinical trials being developed by Novo Nordisk A/S and several other investigational drug candidates in
Phase 2 clinical trials. Arena Pharmaceuticals, Inc. and Orexigen Therapeutics, Inc. have each submitted an NDA to the FDA for their investigational obesity drug candidates.
Neither of these investigational drug candidates was approved by the FDA citing concerns around carcinogenicity in the case of Arena and the need to complete a pre-approval cardiovascular
outcomes study in the case of Orexigen. The future of the Arena and Orexigen compounds is uncertain at this time.

Many
of these drugs, if approved, are or will be marketed by pharmaceutical companies with substantially greater resources than us. In addition, a number of generic pharmaceutical drugs
are prescribed for obesity, predominantly phentermine. Phentermine is sold at much lower prices than we intend to charge for our investigational drug candidate, QNEXA, if approved. The availability of
a branded prescription drug, generic drugs and over-the-counter drugs could limit the demand for, and the price we are able to charge for QNEXA, if approved.

There
are also surgical approaches to treat severe obesity that are becoming increasingly accepted and could become competitors against our investigational drug candidate, QNEXA. Two of
the most well established surgical procedures are gastric bypass surgery and adjustable gastric banding. In February 2011, the FDA approved the use of a lap band in patients with a BMI of 35 without
co-morbidities and 30 with co-morbidities. The lowering of the BMI requirement will make more overweight and obese patients eligible for lap band surgery. The potential impact
on QNEXA and/or other weight loss pharmacotherapy is unknown. In addition, other potential approaches that utilize various implantable devices or surgical tools are in development. Some of these
approaches are in late stage development and may be approved for marketing. If approved, the companies that market these drugs may have substantially greater resources than we have.

Significant
competitive therapies exist for avanafil in the form of oral medications marketed by Pfizer, Inc. under the name Viagra®, Cialis®, marketed by
Eli Lilly and Company, and Levitra®, which is co-marketed by GlaxoSmithKline plc and Schering-Plough Corporation in the U.S. In 2010, the European Commission approved a
new formulation of Levitra (vardenafil HCI). Levitra 10mg oral-disintegrating tablet, or ODT, will be the first erectile dysfunction, or ED, medication available in an ODT form. In Europe,
the launch roll-out was expected in November 2010. The launch in the EU has not yet occurred. In the U.S., the medication was approved in June 2010 and will be marketed by GlaxoSmithKline
and Merck & Co., Inc. under the tradename STAXYN. Consistent with the oral version, the ODT formulation instructs men to take the medication 60 minutes prior to
attempting sexual activity. However, the ODT version will be positioned as an "anytime, anywhere" treatment for ED. We are uncertain how the launch of ODT vardenafil will impact the future commercial
potential of avanafil.

There
are currently three PDE5 inhibitors approved for the treatment of erectile dysfunction in the U.S.: sildenafil, vardenafil, and tadalafil. Worldwide sales of these products were in
excess of $4.1 billion in 2010. As the patents for the three major PDE5 inhibitors currently being sold expire, generic PDE5s will enter the marketplace. Generic PDE5s would likely be sold at
lower prices and may reduce the demand for avanafil and the prices we intend to charge for avanafil, if approved. Additional PDE5 inhibitors are in various stages of development by other companies.
Warner-Chilcott plc has licensed the U.S. rights to udenafil, a PDE5i from Dong-A. Warner-Chilcott continues the Phase 3 development of this compound for ED. Other treatments
for ED exist, such as needle injection

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therapies,
vacuum constriction devices and penile implants, and the manufacturers of these products will most likely continue to develop or improve these therapies.

New
developments, including the development of other drug technologies and methods of preventing the incidence of disease, occur in the pharmaceutical and medical technology industries
at a rapid pace. These developments may render our investigational drug candidates obsolete or noncompetitive. Compared to us, many of our potential competitors have substantially
greater:



As
a result of these factors, our competitors may obtain regulatory approval of their products more rapidly than we or may obtain patent protection or other intellectual property rights
that limit our ability to develop or commercialize our investigational drug candidates. Our competitors may also develop drugs or surgical approaches that are more effective, more useful and less
costly than ours and may also be more successful in manufacturing and marketing their products. In addition, our competitors may be more effective in commercializing their products. We currently
outsource our manufacturing and therefore rely on third parties for that competitive expertise. There can be no assurance that we will be able to develop or contract for these capabilities on
acceptable economic terms, or at all. Recently, Orexigen Therapeutics, manufacturers of Contrave, an investigational drug for the treatment of obesity, received a CRL from the FDA requesting that a
long-term, randomized, placebo-controlled cardiovascular outcomes study be completed prior to refiling the NDA. To date, the FDA has not requested that we perform any additional studies,
including cardiovascular outcome studies pre-approval, other than the Feasibility Assessment. Cardiovascular outcomes studies can take several years, cost millions of dollars and may
result in showing an increased risk for major adverse cardiovascular events for patients in the treatment arm. If any regulatory agency were to require additional studies, including studies to address
cardiovascular events, the impact on the timing of approval and, if approved, commercialization of QNEXA, avanafil or any of our investigational drug candidates, could be delayed or adversely
impacted.

If our raw material supplier fails to supply us with the active pharmaceutical ingredients, or APIs, for our investigational drug candidates, for which availability is
limited, we may experience delays in our investigational drug candidate development and commercialization.

We currently do not have supply agreements in place for phentermine or topiramate, the APIs used in our investigational drug candidate,
QNEXA, nor do we have a supply agreement for the commercial manufacture of QNEXA, if approved. There can be no guarantees that we will be able to enter into such agreements under reasonable terms, if
at all. We cannot guarantee that should we be successful in entering into such agreements we will be able to obtain the necessary prior regulatory approvals for these suppliers. MTPC manufactures the
API for avanafil. To date, MTPC has never manufactured commercial quantities of API. In addition, we are informed that the avanafil manufacturing site has never been inspected by the FDA nor have they
ever manufactured any materials that have been included in an FDA approved product. If MTPC is unable to produce the API for avanafil or if their facility does not receive and maintain approval from
the FDA, the launch of avanafil could be delayed. Any potential delays with the commercial timeline for avanafil could have a material adverse impact on our future financial condition and could impact
our ability to enter into a collaboration for the commercialization of avanafil.

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We depend upon consultants and outside contractors extensively in important roles within our company.

We outsource many key functions of our business and therefore rely on a substantial number of consultants, and we will need to be able
to effectively manage these consultants to ensure that they successfully carry out their contractual obligations and meet expected deadlines. However, if we are unable to effectively manage our
outsourced activities or if the quality or accuracy of the services provided by consultants is compromised for any reason, our clinical trials or other development activities may be extended, delayed
or terminated, and we may not be able to obtain regulatory approval for our investigational drug candidates or otherwise advance our business. There can be no assurance that we will be able to manage
our existing consultants or find other competent outside contractors and consultants on commercially reasonable terms, or at all.

If we fail to retain our key personnel and hire, train and retain qualified employees, we may not be able to compete effectively, which could result in reduced revenues or
delays in the development of our investigational drug candidates .

Our success is highly dependent upon the skills of a limited number of key management personnel. To reach our business objectives, we
will need to retain and hire qualified personnel in the areas of manufacturing, sales and marketing, research and development, regulatory and legal affairs, clinical trial design, execution and
analysis, and pre-clinical testing. There can be no assurance that we will be able to hire or retain such personnel, as we must compete with other companies, academic institutions,
government entities and other agencies. The loss of any of our key personnel or the failure to attract or retain necessary new employees could have an adverse effect on our research, investigational
drug candidate development and business operations.

Allegations of discrimination, wrongful termination or other employment matters, regardless of merit, could negatively affect our operations by causing us to allocate
additional monetary and personnel resources to these issues.

In the ordinary course of business we may become involved in lawsuits and subject to various claims from current and former employees
including wrongful termination, sexual discrimination, retaliation, hostile work environment and other employment-related matters. We were party to a lawsuit involving a former employee which lawsuit
was dismissed without prejudice to the plaintiff to refile certain of his state law claims. We have also been named as a potential defendant in a complaint filed by a former employee. We have
investigated each of the former employee claims and believe the allegations have no merit and that we have meritorious defenses to any such allegations. Due to the current economic downturn, former
employees may be more likely to file employment-related claims. Employment-related claims also appear more likely following a poor performance review. Although there may be no merit to such claims or
legal matters, we may be required to allocate additional monetary and personnel resources to defend against these type of allegations.

Any adverse changes in reimbursement procedures by government and other third party payers may limit our ability to market and sell any future drugs, if approved or limit
our product revenues and delay profitability.

In the U.S. and abroad, sales of pharmaceutical drugs are dependent, in part, on the availability of reimbursement to the consumer from
third party payers, such as government and private insurance plans. Third party payers are increasingly challenging the prices charged for medical products and services. Some third party payer benefit
packages restrict reimbursement or do not provide coverage for specific drugs or drug classes.

In
addition, certain healthcare providers are moving towards a managed care system in which such providers contract to provide comprehensive healthcare services, including prescription
drugs, for a fixed cost per person. We are unable to predict the reimbursement policies employed by third party healthcare payers.

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The
healthcare industry in the U.S. and abroad is undergoing fundamental changes that are the result of political, economic and regulatory influences. The levels of revenue and
profitability of pharmaceutical companies may be affected by the continuing efforts of governmental and third party payers to contain or reduce healthcare costs through various means. Reforms that
have been and may be considered include mandated basic healthcare benefits, controls on healthcare spending through limitations on the increase in private health insurance premiums and the types of
drugs eligible for reimbursement and Medicare and Medicaid spending, the creation of large insurance purchasing groups and fundamental changes to the healthcare delivery system. These proposals
include measures that would limit or prohibit payments for some medical treatments or subject the pricing of drugs to government control and regulations changing the rebates we are required to
provide. These changes could impact our ability to maximize revenues in the Federal marketplace. In addition, healthcare reform legislation could affect the prices of our investigational drug
candidates, if approved, under certain healthcare programs. These proposals include expanding the 340B drug pricing program to allow additional types of healthcare providers to purchase drugs at
significant discounts and to require those discounts on inpatient drugs as well, increasing the minimum Medicaid drug rebate percentage, expanding Medicaid rebate liability to drugs purchased under
Medicaid managed care contracts, increasing the Medicaid rebate on new formulations of existing drugs, and requiring Medicaid rebates to be paid on drugs provided to certain enrollees in the Medicare
Part D prescription drug benefit. Due to uncertainties regarding the outcome of healthcare reform initiatives and their enactment and implementation, we cannot predict which, if any, of the
reform proposals will be adopted or the effect such adoption may have on us. There can be no assurance that future healthcare legislation or other changes in the administration or interpretation of
government healthcare or third party reimbursement programs will not have a material adverse effect on us. Healthcare reform is also under consideration in other countries where we intend to market
QNEXA, if approved.

We
expect to experience pricing pressures in connection with the sale of our investigational drug candidates, if approved, due to the trend toward managed healthcare, the increasing
influence of health maintenance organizations and additional legislative proposals. If we fail to successfully secure and maintain reimbursement coverage for our investigational drug candidates or are
significantly delayed in doing so, we will have difficulty achieving market acceptance of our investigational drug candidates and our business will be harmed. Congress has recently enacted healthcare
reform and may enact further reform, which could adversely affect the pharmaceutical industry as a whole, and therefore could have a material adverse effect on our business.

Both
of the active ingredients in QNEXA, phentermine and topiramate are available as generics. Based on the research we have completed to date, we are unable to determine whether QNEXA,
if approved, will be subject to reimbursement or at what level reimbursement may occur. The exact doses of the active ingredients in the final formulation of QNEXA will be different than those
currently available. State pharmacy laws prohibit pharmacists from substituting drugs with differing doses and formulations. The safety and efficacy of QNEXA is highly dependent on the titration,
dosing and formulation, which we believe could not be easily duplicated, if at all, with the use of generic substitutes. However, there can be no assurance that we will be able to provide for optimal
reimbursement of QNEXA as a treatment for obesity or any other indication, if approved, from third party payers or the U.S. government. Furthermore, there can be no assurance that healthcare providers
would not actively seek to provide patients with generic versions of the active ingredients in QNEXA in order to treat obesity at a potential lower cost.

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Federal legislation may increase the pressure to reduce prices of pharmaceutical drugs paid for by Medicare, which could adversely affect our future revenues, if any.

The Medicare Prescription Drug, Improvement, and Modernization Act of 2003, or MMA, expanded Medicare coverage for drug purchases by
the elderly and disabled beginning in 2006. Under the MMA, private insurance plans subsidized by the government offer prescription drug coverage to Medicare beneficiaries who elect to enroll in their
plans. Although almost all prescription drugs are potentially available to plan enrollees, the plans are allowed to use formularies, preferred drug lists and similar mechanisms to favor selected drugs
and limit access to other drugs except in certain circumstances. The price of a drug as negotiated between the manufacturer and a plan is a factor that the plan can consider in determining its
availability to enrollees.

As
a result, we expect that there will be increased pressure to reduce prices for drugs to obtain favorable status for them under the plans offering prescription drug coverage to
Medicare beneficiaries. This pressure could decrease the coverage and price that we receive for our investigational drug candidates, if approved, in the future and could seriously harm our business.
It is possible that our investigational drug candidate, QNEXA, if approved, could be particularly subject to price reduction initiatives because it is based on combinations of lower priced existing
drugs.

In
addition, some members of Congress advocate that the federal government should negotiate directly with manufacturers for lower prices for drugs in the Medicare program, rather than
rely on private plans. If the law were changed to allow or require such direct negotiation, there could be additional reductions in the coverage of and prices that we receive for any future approved
drugs.

Federal legislation and actions by state and local governments may permit re-importation of drugs from foreign countries into the U.S., including foreign
countries where the drugs are sold at lower prices than in the U.S., which could adversely affect our operating results and our overall financial condition.

We may face competition for our investigational drug candidates, if approved, from lower priced products from foreign countries that
have placed price controls on pharmaceutical products. The Medicare Prescription Drug Improvement and Modernization Act of 2003 contains provisions that may change U.S. importation laws and expand
consumers' ability to import lower priced versions of our investigational drug candidates and competing products from Canada, where there are government price controls. These changes to U.S.
importation laws will not take effect unless and until the Secretary of Health and Human Services certifies that the changes will lead to substantial savings for consumers and will not create a public
health safety issue. The Secretary of Health and Human Services has not yet announced any plans to make this required certification. As directed by Congress, a task force on drug importation conducted
a comprehensive study regarding the circumstances under which drug importation could be safely conducted and the consequences of importation on the health, medical costs and development of new
medicines for U.S. consumers. The task force issued its report in December 2004, finding that there are significant safety and economic issues that must be addressed before importation of prescription
drugs is permitted. In addition, a number of federal legislative proposals have been made to implement the changes to the U.S. importation laws without any certification, and to broaden permissible
imports in other ways. Even if the changes do not take effect, and other changes are not enacted, imports from Canada and elsewhere may continue to increase due to market and political forces, and the
limited enforcement resources of the FDA, the U.S. Customs Service and other government agencies. For example, Pub. L. No. 109-295, which was signed into law in October 2006 and
provides appropriations for the Department of Homeland Security for the 2007 fiscal year, expressly prohibits the U.S. Customs Service from using funds to prevent individuals from importing from
Canada less than a 90-day supply of a prescription drug for personal use, when the drug otherwise complies with the Federal Food, Drug, and Cosmetic Act. Further, several states and local
governments have implemented importation schemes for their citizens and, in the absence of federal action to curtail such activities, we expect other states and local governments to launch

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importation
efforts. The importation of foreign products that compete with our future approved drugs, if any, could negatively impact our financial condition.

Defending against claims relating to improper handling, storage or disposal of hazardous materials could be time consuming and expensive.

Our research and development involves the controlled use of hazardous materials and our operations produce hazardous waste products. We
cannot eliminate the risk of accidental contamination or discharge and any resultant injury from those materials. Various laws and regulations govern the use, manufacture, storage, handling and
disposal of hazardous materials. We may be sued for any injury or contamination that results from our use or the use by third parties of these materials. Compliance with environmental laws and
regulations may be expensive, and current or future environmental regulations may impair our research, development and production efforts.

Our business and operations would suffer in the event of system failures.

Despite the implementation of security measures, our internal computer systems and those of our CROs, safety monitoring company and
other contractors and consultants are vulnerable to damage from computer viruses, unauthorized access, natural disasters, accidents, terrorism, war and telecommunication and electrical failures. While
we have not experienced any such system failure, accident or security breach to date, if such an event were to occur and cause interruptions in our operations, it could result in a material disruption
of our investigational drug candidate development programs and drug manufacturing operations. For example, the loss of clinical trial data from completed or ongoing clinical trials for our
investigational drug candidates could result in delays in our regulatory approval efforts and significantly increase our costs to recover or reproduce the data. To the extent that any disruption or
security breach was to result in a loss of or damage to our data or applications, or inappropriate disclosure of confidential or proprietary information, we could incur liability and the further
development of our investigational drug candidates could be delayed. With the sale of our facility in New Jersey, we currently do not have a backup location to restore our information systems in the
event of failure or disaster in our Mountain View, California facility. We are in the process of securing a backup facility; however, there can be no assurance that we will be able to locate and
implement a backup process on a timely basis or that we will be able to restore our information network in the event of a failure at the Mountain View facility. If we are unable to restore our
information systems in the event of a systems failure, our communications, daily operations and the ability to develop our investigational drug candidates would be severely affected.

Natural disasters or resource shortages could disrupt our investigational drug candidate development efforts and adversely affect results.

Our ongoing or planned clinical trials could be delayed or disrupted indefinitely upon the occurrence of a natural disaster. For
example, in 2005, our clinical trials in the New Orleans area were interrupted by Hurricane Katrina. In addition, our offices are located in the San Francisco Bay Area near known earthquake fault
zones and are therefore vulnerable to damage from earthquakes. In October 1989, a major earthquake in our area caused significant property damage
and a number of fatalities. Our supplier of avanafil is located in Japan near known earthquake fault zones and is vulnerable to damage from earthquakes. We are also vulnerable to damage from other
disasters, such as power loss, fire, floods and similar events. If a significant disaster occurs, our ability to continue our operations could be seriously impaired and we may not have adequate
insurance to cover any resulting losses. Any significant unrecoverable losses could seriously impair our operations and financial conditions.

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Risks Relating to our Intellectual Property

We may be sued for infringing the intellectual property rights of others or others may infringe on our intellectual property rights.

There can be no assurance that our investigational drug candidates do not or will not infringe on the patent or proprietary rights of
others. In addition, third parties may already own or may obtain patents in the future and claim that use of our technologies infringes these patents. We could incur substantial costs and diversion of
the time and attention of management and technical personnel in defending ourselves against any such claims. Furthermore, parties making claims against us may be able to obtain injunctive or other
equitable relief that could effectively block our ability to further develop, commercialize and sell any future approved drugs, and such claims could result in the award of substantial damages against
us. In the event of a successful claim of infringement against us, we may be required to pay damages and obtain one or more licenses from third parties. We may not be able to obtain these licenses at
a reasonable cost, if at all. In that case, we could encounter delays in product introductions while we attempt to develop alternative investigational drug candidates or be required to cease
commercializing any affected future approved drugs and our operating results would be harmed.

We
believe the Supreme Court ruling inKSR International Co. vs. Teleflex, Inc.raised the standards for patentability and
ease the ability to show that a patent is obvious. This ruling will make it more difficult to obtain patents for combination pharmaceutical drugs. At the present time, we are unable to predict the
impact, if any, that this ruling will have on our current or future patents and patent applications. If we are unable to defend the patents currently issued on our investigational drug candidates, or
to obtain new patents for any reason, our ability to commercialize any future approved drugs would be at risk.

Our inability to adequately protect our proprietary technologies could harm our competitive position and have a material adverse effect on our business.

We hold various patents and patent applications in the U.S. and abroad targeting obesity and morbidities related to obesity, including
sleep apnea and diabetes, and male sexual health among other indications. QNEXA is our investigational drug candidate involving low doses of phentermine and topiramate. On June 6, 2006, the
initial U.S. patent was issued by the USPTO. This patent contains composition, product, and other claims that should protect QNEXA, if approved, as a proprietary product for the treatment of obesity.
The term of this patent extends into 2020. In January 2009, the European Patent Office granted European patent No. 1,187,603, which broadly covers QNEXA and its use as a weight loss treatment.
The patent extends the intellectual property protection of QNEXA beyond the already issued patents in the U.S. and abroad. Patents have also been granted on QNEXA in Canada and Australia. We are in
the process of prosecuting additional patent applications in these and other countries as well, to obtain significant foreign patent coverage for both QNEXA and future generations of QNEXA.
Furthermore, we have filed additional patent applications in the U.S. to expand the coverage that will be provided by U.S. Patent No. 7,056,890 B2. On March 9, 2010, U.S. Patent
No. 7,674,776 issued with method, composition, and dosage form claims, including claims drawn to a method for treating Syndrome X, a common multisymptomatic disorder often found in obese
patients, and to a method for treating side effects of obesity such as sleep apnea. On February 9, 2010, U.S. Patent No. 7,659,256 issued significantly broadening both the method and
composition-of-matter protection afforded QNEXA by our initial U.S. Patent No. 7,056,890 B2. On June 30, 2009, U.S. Patent No. 7,553,818 was issued drawn
to a method for effecting weight loss by co-administration of varying doses of phentermine and topiramate. This patent also expands on the initial coverage provided by our U.S. Patent
No. 7,056,890 B2. Each of these U.S. patents for QNEXA expires in 2020. The primary focus of the patent applications is on combination therapy using a sympathomimetic agent (such as
phentermine) and an anticonvulsant (such as topiramate) for the treatment of obesity and other related disorders. We are aware of issued patents for the use of topiramate alone or in combination for

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obesity.
We have worked closely with our patent counsel to put together a cogent patent strategy and are building a strong patent portfolio in an attempt to obtain exclusivity over the life of the
patents.

The
procedures for obtaining a patent in the U.S. and in most foreign countries are complex. These procedures require an analysis of the scientific technology related to the invention
and many sophisticated legal issues. Obtaining patent rights outside the U.S. often requires the translation of highly technical documents and an improper translation could lead to the loss of, or
otherwise jeopardize, the patent protection of our inventions. Ensuring adequate quality of translators and foreign patent attorneys is often very challenging. Consequently, the process for having our
pending patent applications issue as patents will be difficult, complex and time consuming. We do not know when, or if, we will obtain additional patents for our technologies, or if the scope of the
patents obtained will be sufficient to protect our investigational drug candidates, or be considered sufficient by parties reviewing our patent positions pursuant to a potential licensing or financing
transaction.

In
addition, other entities may challenge the validity or enforceability of our patents and patent applications in litigation or administrative proceedings. Even the issuance of a patent
is not conclusive as to its validity or enforceability. We cannot make assurances as to how much protection, if any, will be given to our patents if we attempt to enforce them or they are challenged.
It is possible that a competitor or a generic pharmaceutical provider may successfully challenge our patents and those challenges may result in reduction or elimination of our patents' coverage.

The
USPTO has over the last few years tried to enact and/or has proposed changes in the rules governing (i) the duties of patent applicants to disclose information that relates to
their applications, (ii) the ability of patent applicants to file unlimited numbers of patent applications and patent claims that concern closely related inventions and/or different aspects of
the same invention, and (iii) the manner in which the USPTO will decide whether to require patent applicants to separate closely related inventions into separate patent applications. Some of
these rule changes are being challenged in the courts. It is unclear which of these rule changes, if any, will be allowed by the courts and which of them will continue to be pursued. In addition, the
U.S. Congress is considering changes to federal patent laws on several issues including, but not limited to: (i) the information can be used to determine whether an invention is not new and,
therefore, not patentable, (ii) the limits on the independent administrative rulemaking authority of the USPTO, (iii) the duties of patent applicants to disclose information that relates
to their applications, (iv) whether, under what circumstances, and how many times a third party can challenge an issued U.S. patent before the USPTO, (v) whether and under what
circumstances patent applicants can lose their ability to enforce their patents in the U.S. based on their failure to disclose certain information relating to their inventions, and (vi) how
damages for patent infringement may be reduced based by a number of factors, including the similarity of a patented invention to preexisting technologies.

We
believe that the U.S. is by far the largest single market for pharmaceuticals in the world. Because of the critical nature of patent rights to the pharmaceutical industry, changes in
U.S. patent rules and laws could have a profound effect on our future profits. Several of the patent rule and law changes that are being considered could significantly weaken patent protections in the
U.S. in general. They may also have a disproportionately large negative impact on the biotechnology and pharmaceutical industries in particular, as well as tilt the balance of market control and
distribution of profits between the manufacturers of patented pharmaceutical products and the manufacturers of generic pharmaceutical products towards the generics manufacturers. At present there is
considerable uncertainty as to which patent rules and laws will be changed and whether changes to the patent rules will ultimately be enforced or struck down by the courts.

Our
existing patents and any future patents we obtain may not be sufficiently broad to prevent others from practicing our technologies or from developing competing products. Others may
independently develop similar or alternative technologies or design around our patented technologies

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or
products. These companies would then be able to develop, manufacture and sell products that compete directly with our products. In that case, our revenues and operating results would decline.

We
seek to protect our confidential information by entering into confidentiality agreements with employees, collaborators, CROs, consultants and potential investors. Nevertheless,
employees, collaborators, consultants or potential investors may still disclose or misuse our confidential information, and we may not be able to meaningfully protect our trade secrets. In addition,
others may independently develop substantially equivalent information or techniques or otherwise gain access to our trade secrets. Disclosure or misuse of our confidential information would harm our
competitive position and could cause our revenues and operating results to decline.

A dispute regarding the infringement or misappropriation of our proprietary rights or the proprietary rights of others could be costly and result in delays or termination of
our future research, development, manufacturing and sales activities.

Our commercial success also depends upon our ability to develop and manufacture our investigational drug candidates and market and sell
any future approved drugs and conduct our research and development activities without infringing or misappropriating the proprietary rights of others. There are many patents and patent applications
filed, and that may be filed, by others relating to drug discovery and development programs that could be determined to be similar, identical or superior to ours or our licensors or collaborators. We
may be exposed to future litigation by others based on claims that our investigational drug candidates, technologies or activities infringe the intellectual property rights of others. Numerous U.S.
and foreign issued patents and pending patent applications owned by others also exist in the therapeutic areas in, and for the therapeutic targets for, which we are developing investigational drug
candidates. There are also numerous issued patents and patent applications to chemical compounds or synthetic processes that may be necessary or useful to use in our research, development,
manufacturing or commercialization activities. These could materially affect our ability to develop our investigational drug candidates or manufacture, import or sell any future approved drugs, and
our activities, or those of our licensors or collaborators, could be determined to infringe these patents. Because patent applications can take many years to issue, there may be currently pending
applications, unknown to us, which may later result in issued patents that our investigational drug candidates or technologies may infringe. There also may be existing patents, of which we are not
aware, that our investigational drug candidates or technologies may infringe. Further, there may be issued patents or pending patent applications in fields relevant to our business, of which we are or
may become aware, that we believe (i) are invalid or we do not infringe; (ii) relate to immaterial portions of our overall drug discovery, development, manufacturing and
commercialization efforts; or (iii) in the case of pending patent applications, the resulting patent would not be granted or, if granted, would not likely be enforced in a manner that would
materially impact such efforts. We cannot assure you that others holding any of these patents or patent applications will not assert infringement claims against us for damages or seek to enjoin our
activities. We also cannot assure you that, in the event of litigation, we will be able to successfully assert any belief we may have as to non-infringement, invalidity or immateriality,
or that any infringement claims will be resolved in our favor.

In
addition, others may infringe or misappropriate our proprietary rights, and we may have to institute costly legal action to protect our intellectual property rights. We may not be
able to afford the costs of enforcing or defending our intellectual property rights against others.

There
could also be significant litigation and other administrative proceedings in our industry that affect us regarding patent and other intellectual property rights. Any legal action
or administrative

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action
against us, or our collaborators, claiming damages or seeking to enjoin commercial activities relating to our drug discovery, development, manufacturing and commercialization activities
could:



Furthermore,
because of the substantial amount of pre-trial document and witness discovery required in connection with intellectual property litigation, there is a risk that
some of our confidential information could be compromised by disclosure during this type of litigation. In addition, during the course of this kind of litigation, there could be public announcements
of the results of hearings, motions or other interim proceedings or developments. If securities analysts or investors perceive these results to be negative, it could have a substantial adverse effect
on the trading price of our common stock.

We cannot protect our intellectual property rights throughout the world.

Filing, prosecuting, defending and enforcing patents on all of our drug discovery technologies and all of our potential investigational
drug candidates throughout the world would be prohibitively expensive. Competitors may use our technologies to develop their own drugs in jurisdictions where we have not obtained patent protection.
These drugs may compete with our investigational drug candidates and may not be covered by any of our patent claims or other intellectual property rights. The laws of some foreign countries do not
protect intellectual property rights to the same extent as the laws of the U.S., and many companies have encountered significant problems in protecting and defending such rights in foreign
jurisdictions. Many countries, including certain countries in Europe, have compulsory licensing laws under which a patent owner may be compelled to grant licenses to third parties (for example, the
patent owner has failed to "work" the invention in that country or the third party has patented improvements). In addition, many countries limit the enforceability of patents against government
agencies or government contractors. In these countries, the patent owner may have limited remedies, which could materially diminish the value of the patent. Compulsory licensing of
life-saving drugs is also becoming increasingly popular in developing countries either through direct legislation or international initiatives. Such compulsory licenses could be extended
to include some of our investigational drug candidates, which could limit our potential revenue opportunities. Moreover, the legal systems of certain countries, particularly certain developing
countries, do not favor the aggressive enforcement of patents and other intellectual property protection, particularly those relating to biotechnology and/or pharmaceuticals, which makes it difficult
for us to stop the infringement of our patents. Proceedings to enforce our patent rights in foreign jurisdictions could result in substantial cost and divert our efforts and attention from other
aspects of our business.

We may face additional competition outside of the U.S. as a result of a lack of patent enforcement in foreign countries and off-label use of other dosage forms
of the generic components in our investigational drug candidates.

While we have filed patent applications in many countries outside the U.S., and have obtained some patent coverage for certain of our
investigational drug candidates in certain foreign countries, we do not currently have widespread patent protection for QNEXA outside the U.S. and have no protection in many foreign jurisdictions.
Even if international patent applications ultimately issue or

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receive
approval, it is likely that the scope of protection provided by such patents will be different from, and possibly less than, the scope provided by our corresponding U.S. patents. The success
of our international market opportunity is dependent upon the enforcement of patent rights in various other countries. A number of countries in which we have filed or intend to file patent
applications have a history of weak enforcement and/or compulsory licensing of intellectual property rights. Even if we have patents issued in these jurisdictions, there can be no assurance that our
patent rights will be sufficient to prevent generic competition or unauthorized use.

We
may face competition from the off-label use of other dosage forms of the generic components in our investigational drug candidates. In addition, others may attempt to
commercialize our investigational drug candidate combinations in countries or other markets where we do not have patent protection for all of our investigational drug candidates. In particular, it is
possible that patients will seek to acquire the generic IR components of our investigational drug candidate QNEXA (phentermine and topiramate). The off-label use of the generic IR
components in the U.S. or the importation of the generic IR components from foreign markets could adversely affect the commercial potential for our investigational drug candidates and adversely affect
our overall business and financial results.

We may be subject to claims that we, or our employees, have wrongfully used or disclosed alleged trade secrets of their former employers.

We employ individuals who were previously employed at other pharmaceutical companies, including our competitors or potential
competitors. Although we have no knowledge of any pending or overtly threatened claims, we may be subject to claims that these employees, or we, have inadvertently or otherwise used or disclosed trade
secrets or other proprietary information of their former employers. Litigation may be necessary to defend against these claims. Even if we are successful in defending against these claims, litigation
could result in substantial costs and be a distraction to management.

We may be unable to in-license intellectual property rights or technology necessary to develop and commercialize our investigational drug candidates.

Depending on its ultimate formulation and method of use, before we can develop, clinically test, make, use, or sell a particular
investigational drug candidate, we may need to obtain a license from one or more third parties who have patent or other intellectual property rights covering components of our investigational drug
candidate or its method of use. There can be no assurance that such licenses will be available on commercially reasonable terms, or at all. If a third party does not offer us a necessary license or
offers a license only on terms that are unattractive or unacceptable to us, we might be unable to develop and commercialize one or more of our investigational drug candidates.

Our failure to successfully acquire, develop and market additional investigational drug candidates or approved drugs would impair our ability to grow.

As part of our growth strategy, we may acquire, in-license, develop and/or market additional products and investigational
drug candidates. Because our internal research capabilities are limited, we may be dependent upon pharmaceutical and biotechnology companies, academic scientists and other researchers to sell or
license products or technology to us. The success of this strategy depends partly upon our ability to identify, select and acquire promising pharmaceutical investigational drug candidates and
products.

The
process of proposing, negotiating and implementing a license or acquisition of an investigational drug candidate or approved product is lengthy and complex. Other companies,
including some with substantially greater financial, marketing and sales resources, may compete with us for the license or acquisition of investigational drug candidates and approved products. We have
limited

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resources
to identify and execute the acquisition or in-licensing of third-party products, businesses and technologies and integrate them into our current infrastructure. Moreover, we may
devote resources to potential acquisitions or in-licensing opportunities that are never completed, or we may fail to realize the anticipated benefits of such efforts. We may not be able to
acquire the rights to additional investigational drug candidates on terms that we find acceptable, or at all.

In
addition, future acquisitions may entail numerous operational and financial risks, including:



Further,
any investigational drug candidate that we acquire may require additional development efforts prior to commercial sale, including extensive clinical testing and approval by the
FDA and applicable foreign regulatory authorities. All investigational drug candidates are prone to risks of failure typical of pharmaceutical investigational drug candidate development, including the
possibility that an investigational drug candidate will not be shown to be sufficiently safe and effective for approval by regulatory authorities. In addition, we cannot provide assurance that any
drugs that we develop or approved products that we may acquire will be commercialized profitably or achieve market acceptance.

We may participate in new partnerships and other strategic transactions that could impact our liquidity, increase our expenses and present significant distractions to our
management.

From time to time we consider strategic transactions, such as out-licensing or in-licensing of compounds or
technologies, acquisitions of companies and asset purchases. Additional potential transactions we may consider include a variety of different business arrangements, including strategic partnerships,
joint ventures,
spin-offs, restructurings, divestitures, business combinations and investments. In addition, another entity may pursue us as an acquisition target. Any such transactions may require us to
incur non-recurring or other charges, may increase our near and long-term expenditures and may pose significant integration challenges, require additional expertise or disrupt
our management or business, which could harm our operations and financial results.

As
part of an effort to enter into significant transactions, we conduct business, legal and financial due diligence with the goal of identifying and evaluating material risks involved in
the transaction. Despite our efforts, we ultimately may be unsuccessful in ascertaining or evaluating all such risks and, as a result, might not realize the intended advantages of the transaction. If
we fail to realize the expected benefits from any transaction we may consummate, whether as a result of unidentified risks, integration difficulties, regulatory setbacks or other events, our business,
results of operations and financial condition could be adversely affected.

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Setbacks and consolidation in the pharmaceutical and biotechnology industries, and our or our collaborators' inability to obtain third-party coverage and adequate
reimbursement, could make partnering more difficult and diminish our revenues.

Setbacks in the pharmaceutical and biotechnology industries, such as those caused by safety concerns relating to
high-profile drugs like Avandia, Vioxx and Celebrex, or investigational drug candidates, as well as competition from generic drugs, litigation, and industry consolidation, may have an
adverse effect on us. For example, pharmaceutical companies may be less willing to enter into new collaborations or continue existing collaborations if they are integrating a new operation as a result
of a merger or acquisition or if their therapeutic areas of focus change following a merger. Moreover, our and our collaborators' ability to commercialize any of our investigational drug candidates
that may be approved will depend in part on government regulation and the availability of coverage and adequate reimbursement from third-party payers, including private health insurers and government
payers, such as the Medicaid and Medicare programs, increases in government-run, single-payer health insurance plans and compulsory licenses of drugs. Government and third-party payers are
increasingly attempting to contain healthcare costs by limiting coverage and reimbursement levels for new drugs. Given the continuing discussion regarding the cost of healthcare, managed care,
universal healthcare coverage and other healthcare issues, we cannot predict with certainty what additional healthcare initiatives, if any, will be implemented or the effect any future legislation or
regulation will have on our business. These efforts may limit our commercial opportunities by reducing the amount a potential collaborator is willing to pay to license our programs or investigational
drug candidates in the future due to a reduction in the potential revenues from drug
sales. Moreover, legislation and regulations affecting the pricing of pharmaceuticals may change before regulatory agencies approve our investigational drug candidates for marketing. Adoption of such
legislation and regulations could further limit pricing approvals for, and reimbursement of, drugs. A government or third-party payer decision not to approve pricing for, or provide adequate coverage
and reimbursements of, our investigational drug candidates could limit market acceptance of such drugs, if approved.

We will need to obtain FDA approval of our proposed product names and any failure or delay associated with such approval may adversely impact our business.

Any name we intend to use for our investigational drug candidates will require approval from the FDA, regardless of whether we have
secured a formal trademark registration from the USPTO. The FDA typically conducts a rigorous review of proposed product names, including an evaluation of potential for confusion with other product
names. The FDA may also object to a product name if it believes the name inappropriately implies medical claims. If the FDA objects to one of our proposed product names, we will be required to adopt
an alternative name for that investigational drug candidate. If we adopt an alternative name, we would lose the benefit of our existing trademark applications and may be required to expend significant
additional resources in an effort to identify a suitable product name that would qualify under applicable trademark laws, not infringe the existing rights of third parties and be acceptable to the
FDA, which could cause delays that would adversely impact our business. We may be unable to build a successful brand identity for a new trademark in a timely manner or at all, which would limit our
ability to commercialize our investigational drug candidates.

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Risks Relating to our Financial Position and Need for Financing

We require additional capital for our future operating plans, including, if approved, the commercial launch of QNEXA in the United States, and we may not be able to secure
the requisite additional funding on acceptable terms, or at all, which would force us to delay, reduce or eliminate investigational drug candidate development programs or commercialization efforts.

We expect that our existing capital resources combined with future anticipated cash flows will be sufficient to support our operating
activities at least into 2012. However, we anticipate that we will be required to obtain additional financing to fund the development of our research and development pipeline in future periods as well
as to support the possible launch of any approved products. Our future capital requirements will depend upon numerous factors, including:



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Future
capital requirements will also depend on the extent to which we acquire or invest in additional complementary businesses, products and technologies. We currently have no
commitments or agreements relating to any of these types of transactions.

We
have substantially less money than we need to develop our investigational drug compounds into commercially available drugs. It takes many years and potentially hundreds of millions of
dollars to successfully develop a pre-clinical or early clinical compound into an approved and commercially marketed drug, and our efforts may not result in any marketed drugs. We may need
additional funds or a partner to bring our most advanced investigational drug candidate, QNEXA, to market, if ever.

To
obtain additional capital when needed, we will evaluate alternative financing sources, including, but not limited to, the issuance of equity or debt securities, corporate alliances,
joint ventures and licensing agreements. However, there can be no assurance that funding will be available on favorable terms, if at all. We are continually evaluating our existing portfolio and we
may choose to divest, sell or spin-off one or more of our investigational drug candidates at any time. We cannot assure you that we will successfully develop our investigational drug
candidates under development or, if successfully developed or approved, that our drugs will generate revenues sufficient to enable us to earn a profit. If we are unable to obtain additional capital,
management may be required to explore alternatives to reduce cash used by operating activities, including the termination of research and development efforts that may appear to be promising to us, the
sale of certain assets and the reduction in overall operating activities. If adequate funds are not available, we may be required to delay, reduce the scope of or eliminate one or more of our
development programs or our commercialization efforts.

Raising additional funds by issuing securities will cause dilution to existing stockholders and raising funds through lending and licensing arrangements may restrict our
operations or require us to relinquish proprietary rights.

To the extent that we raise additional capital by issuing equity securities, our existing stockholders' ownership will be diluted. We
have financed our operations, and we expect to continue to finance our operations, primarily by issuing and selling our common stock. In light of our need for additional financing, we may issue
additional shares of common stock that could dilute your ownership in our company and may include terms that give new investors rights that are superior to yours. For example, on September 23,
2009, we sold 10,350,000 shares of our common stock through an underwriting agreement at a price of $10.50 per share resulting in gross proceeds to us of $108.7 million. Moreover, any issuances
by us of equity securities may be at or below the prevailing market price of our common stock and in any event may have a dilutive impact on your ownership interest, which could cause the market price
of our common stock to decline. To raise additional capital, we may chose to issue additional securities at any time and at any price.

We
may also raise additional funds through the incurrence of debt, and the holders of any debt we may issue would have rights superior to your rights in the event we are not successful
and are forced to seek the protection of bankruptcy laws. In addition, debt financing typically contains covenants that restrict operating activities. For example, our loan with Crown Bank, N.A., was
secured by the land and

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buildings,
among other assets, located at our former principal manufacturing facility and a $700,000 Certificate of Deposit held by Crown. Additionally, our intellectual property and all of the
accounts receivable, inventory and equipment arising out of or relating to MUSE and avanafil were pledged as collateral for the Deerfield transaction, which also contained a variety of covenants,
including requiring us to use commercially reasonable efforts to preserve our intellectual property, manufacture, promote and sell MUSE, and develop avanafil. We have divested MUSE and the related
assets and repaid all debt obligations secured by these assets. Any future debt financing we enter into may involve similar or more onerous covenants that restrict our operations.

If
we raise additional funds through collaboration, licensing or other similar arrangements, it may be necessary to relinquish potentially valuable rights to our current investigational
drug candidates, potential products or proprietary technologies, or grant licenses on terms that are not favorable to us. If adequate funds are not available, our ability to achieve profitability or
to respond to competitive pressures would be significantly limited and we may be required to delay, significantly curtail or eliminate the development of one or more of our investigational drug
candidates.

The current global economic environment poses severe challenges to our business strategy, which relies on access to capital from the markets and our collaborators.

The global economy, including credit markets and the financial services industry, has been experiencing a period of substantial turmoil
and uncertainty. These conditions have generally made equity and debt financing more difficult to obtain, and may negatively impact our ability to complete financing transactions. The duration and
severity of these conditions is uncertain, as is the extent to which they may adversely affect our business and the business of current and prospective collaborators and vendors. If the global economy
does not improve or worsens, we may be unable to secure additional funding to sustain our operations or to find suitable partners to advance our internal programs, even if we receive positive results
from our research and development or business development efforts.

Our investment in the clinical development and manufacture of a commercial supply of QNEXA may not result in any benefit to us if QNEXA is not approved for commercial sale.

We have invested significant resources in the clinical development of QNEXA. We are planning for and may invest significant resources
now in preparation for marketing approval and planning for manufacture of commercial supply and sales and marketing. Our engagement in these resource-intensive activities puts significant investment
at risk if we do not obtain regulatory approval and successfully commercialize QNEXA in the U.S. On October 28, 2010, we received a Complete Response Letter, or CRL, regarding the New Drug
Application, or NDA, for QNEXA as a treatment for obesity. The CRL stated that in its current form, the NDA for QNEXA was not approvable. The CRL included the following areas: clinical, labeling,
REMS, safety update, and drug scheduling. In the clinical section of the CRL, the FDA requested a comprehensive assessment of topiramate's and QNEXA's teratogenic potential including a detailed plan
and strategy to evaluate and mitigate the potential teratogenic risks in women of childbearing potential taking the drug for the treatment of obesity. In addition, the FDA asked us to provide evidence
that the elevation in heart rate (mean 1.6 beats per minute on the top dose) associated with QNEXA does not increase the risk for major adverse cardiovascular events. The FDA requested that we
formally submit the results from the completed SEQUEL study (OB-305), a 52-week extension study for a subset of 675 patients who completed the previously reported
56-week CONQUER study. The FDA reserved the right to comment further on proposed labeling. On REMS, the FDA requested that a discussion of an already-submitted REMS plan be continued after
we have submitted the written response. The agency also requested a safety update of any new adverse events be submitted to the NDA. Finally, the FDA stated that if approved, QNEXA would be a
Schedule IV drug due to the phentermine component. On

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January 19,
2011, we held an End-of-Review meeting with the FDA to discuss the items contained in the CRL and the information we plan to include in the resubmission of
the NDA for QNEXA. In anticipation of the meeting, we had provided a briefing document that included analyses integrating existing non-clinical and clinical data to provide a comprehensive
assessment of the teratogenic potential of topiramate. In addition, we provided several new analyses to demonstrate that QNEXA does not increase the risk for major cardiovascular events, which
analyses included cardiovascular data from our SEQUEL (OB-305) and Sleep Apnea (OB-204) studies. We also provided a synopsis of the final study report for the SEQUEL study. No
new clinical studies were requested in the CRL; however, in the event that any of the FDA concerns are not alleviated, additional clinical studies may be required. At the meeting, presentations were
made on the comprehensive assessment of the teratogenic potential of topiramate and QNEXA, and evidence was presented that the increase in heart rate of 1.6 beats per minute does not increase the risk
for major adverse cardiovascular events. The discussion also included elements of our proposed REMS program for QNEXA. The FDA chose to focus the meeting on the discussion of teratogenic potential for
topiramate, specifically the incidence of oral clefts observed in the North American AED Pregnancy Registry and in the UK Epilepsy and Pregnancy Registry. As part of this meeting, the FDA requested
that we complete the Feasibility Assessment. Although no other requests for additional information or studies were made by the FDA at the meeting or in the CRL, there can be no assurance that the FDA
will not request or require us to provide additional information or undertake additional studies in connection with the QNEXA NDA. In the QNEXA studies, which included 15 offspring from women exposed
to QNEXA or topiramate, there were no reports of any congenital malformations or low birth weight. The timing of the planned resubmission of the QNEXA
NDA will be determined after agreement with the FDA is reached on the Feasibility Assessment and whether a retrospective observational study would be needed. We expect to reach agreement with the FDA,
and if deemed feasible, initiate the retrospective observational study on fetal outcomes within the next two months. It is our goal to resubmit the NDA for QNEXA to the FDA by the end of 2011.

There
is no assurance that our development of QNEXA will lead successfully to regulatory approval, or that obtaining regulatory approval will lead to commercial success. If QNEXA is not
approved for commercial sale or if its development is delayed for any reason, our full investment in QNEXA may be at risk, we may be forced to write-off existing inventory, face
significant costs to dispose of unusable inventory, and our business and financial condition would be materially adversely affected.

The investment of our cash balance and our available-for-sale securities are subject to risks which may cause losses and affect the liquidity of
these investments.

At December 31, 2010, we had $37.2 million in cash and cash equivalents and $102 million in
available-for-sale securities. While at December 31, 2010 our excess cash balances were invested in money market and U.S. Treasury securities, our investment policy as
approved by the Board of Directors, also provides for investments in debt securities of U.S. government agencies, corporate debt securities and asset-backed securities. The investment policy has the
primary investment objectives of preservation of principal; however, there may be times when certain of the securities in our portfolio will fall below the credit ratings required in the policy. If
those securities are downgraded or impaired we would experience losses in the value of our portfolio which would have an adverse effect on our results of operations, liquidity and financial condition.
An investment in money market mutual funds is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other government agency. Although money market mutual funds seek to preserve
the value of the investment at $1 per share, it is possible to lose money by investing in money market mutual funds.

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The holders of our stock and other securities may take actions that are contrary to your interests, including selling their stock.

A small number of our stockholders hold a significant amount of our outstanding stock. These stockholders may support competing
transactions and have interests that are different from yours. Sales of a large number of shares of our stock by these large stockholders or other stockholders within a short period of time could
adversely affect our stock price.

Capital appreciation, if any, of our common stock will be your sole source of gain on an investment in our stock for the foreseeable future.

We have paid no cash dividends on any of our classes of capital stock to date and we currently intend to retain our future earnings, if
any, to fund the development and growth of our business. We do not anticipate paying any cash dividends on our common stock in the foreseeable future. As a result, capital appreciation, if any, of our
common stock will be your sole source of gain for the foreseeable future.

Our involvement in securities-related class action litigation could divert our resources and management's attention and harm our business.

The stock markets have from time to time experienced significant price and volume fluctuations that have affected the market prices for
the common stock of pharmaceutical companies. These broad market fluctuations may cause the market price of our common stock to decline. In the past, securities-related class action litigation has
often been brought against a company following a decline in the market price of its securities. This risk is especially relevant for us because biotechnology and biopharmaceutical companies often
experience significant stock price volatility in connection with their investigational drug candidate development programs and the FDA's review of their NDAs. We are a defendant in a federal
securities class action lawsuit and federal and consolidated state shareholder derivative lawsuits. These securities-related class action lawsuits generally allege that the Company and its officers
misled the investing public regarding the safety and efficacy of QNEXA and the prospects for the FDA's approval of the QNEXA NDA as a treatment for obesity. Securities-related class action litigation
often is expensive and diverts management's attention and our financial resources, which could adversely affect our business.

We have an accumulated deficit of $300.1 million as of December 31, 2010 and we may continue to incur substantial operating losses for the future.

We have generated a cumulative net loss of $300.1 million for the period from our inception through December 31, 2010,
and we anticipate losses in future years due to continued investment in our research and development programs. There can be no assurance that we will be able to achieve or maintain profitability or
that we will be successful in the future.

Our ability to utilize our net operating loss carryforwards to offset future taxable income may be limited.

As of December 31, 2010, we had approximately $234.5 million and $54.3 million of net operating loss, or NOL,
carryforwards with which to offset our future taxable income for federal and state income tax reporting purposes, respectively. We used $121.2 million federal and $32.2 million state
NOLs to offset our year ended December 31, 2007 federal and state taxable income, which included the $150 million in gain recognized from the Evamist sale. The Internal Revenue Code of
1986, as amended, contains provisions that may limit the net operating loss and credit carryforwards available for use in any given period upon the occurrence of certain events, including significant
change in ownership interest. Should this occur, our future ability to use NOLs to offset taxable earnings would be limited in accordance with the Internal Revenue Code.

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We may have exposure to additional tax liabilities that could negatively impact our income tax provision, net income, and cash flow.

We are subject to income taxes and other taxes in both the U.S. and the foreign jurisdictions in which we currently operate or have
historically operated. The determination of our worldwide provision for income taxes and current and deferred tax assets and liabilities requires judgment and estimation. In the ordinary course of our
business, there are many transactions and calculations where the ultimate tax determination is uncertain. We are subject to regular review and audit by U.S. tax authorities as well as subject to the
prospective and retrospective effects of changing tax regulations and legislation. Although we believe our tax estimates are reasonable, the ultimate tax outcome may materially differ from the tax
amounts recorded in our consolidated financial statements and may materially affect our income tax provision, net income, or cash flows in the period or periods for which such determination and
settlement is made.

If we become subject to product liability claims, we may be required to pay damages that exceed our insurance coverage.

Past sales of our previously owned commercial product, MUSE, and our clinical trials expose us to a significant risk of product
liability claims. In addition, pharmaceutical products are subject to heightened risk for product liability claims due to inherent side effects. We identified potential side effects in the patient
package insert and physician insert, both of which were distributed with MUSE. While we believe that we are reasonably insured against these risks, we may not be able to obtain insurance in amounts or
scope sufficient to provide us with adequate coverage
against all potential liabilities. A product liability claim in excess of, or excluded from, our insurance coverage would have to be paid out of cash reserves and could have a material adverse effect
upon our business, financial condition and results of operations. Product liability insurance is expensive, difficult to maintain, and current or increased coverage may not be available on acceptable
terms, if at all.

In
addition, we develop, test and manufacture investigational drug candidates that are used by humans. We face an inherent risk of product liability exposure related to the testing of
our investigational drug candidates in clinical trials. An individual may bring a liability claim against us if one of our investigational drug candidates or future approved drugs, if any, causes, or
merely appears to have caused, an injury. If we cannot successfully defend ourselves against a product liability claim, we will incur substantial liabilities. Regardless of merit or eventual outcome,
liability claims may result in:



Damages
awarded in a product liability action could be substantial and could have a negative impact on our financial condition. Whether or not we were ultimately successful in product
liability litigation, such litigation would consume substantial amounts of our financial and managerial resources, and might result in adverse publicity, all of which would impair our business.

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Risks Relating to an Investment in our Common Stock

Our stock price has been and may continue to be volatile.

The market price of our common stock has been volatile and is likely to continue to be so. The market price of our common stock may
fluctuate due to factors including, but not limited to:



These
factors and fluctuations, as well as political and other market conditions, may adversely affect the market price of our common stock. Securities related class action litigation is
often brought

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against
a company following periods of volatility in the market price of its securities. We are currently a defendant in a number of federal and state securities-related class action lawsuits and may
be the target of similar litigation in the future. Securities related litigation, whether with or without merit, could result in substantial costs and divert management's attention and financial
resources, which could harm our business and financial condition, as well as the market price of our common stock.

Additionally,
volatility or a lack of positive performance in our stock price may adversely affect our ability to retain or recruit key employees, all of whom have been or will be
granted stock options as an important part of their compensation packages.

We may be unable to receive the full sales consideration from the sale of the MUSE assets to Meda AB.

Under the terms of the Asset Purchase Agreement we entered into with Meda AB, or Meda, to sell certain of the assets related to the
MUSE business to Meda, or the MUSE Transaction, we received $22 million upon the closing of the MUSE Transaction. The MUSE Transaction closed on November 5, 2010. We may also receive a
one-time payment of $1.5 million should Meda achieve a $50 million sales milestone for MUSE in any one calendar year during any of the three full calendar years following the
date of the Purchase Agreement.

Should
Meda fail to achieve the sales milestone for MUSE, the potential milestone payment under the Purchase Agreement with Meda could be delayed or not occur at all.

Volatility in the stock prices of other companies may contribute to volatility in our stock price.

The stock market in general, and the NASDAQ Global Market and the market for life sciences companies in particular, have experienced
significant price and volume fluctuations. Further, there has been particular volatility in the market prices of securities of early stage and development stage life sciences companies. These broad
market and industry factors may seriously harm the market price of our common stock, regardless of our operating performance.

Our stock price could decline significantly based on the results and timing of prospective, retrospective observational and pre-clinical studies of, and
decisions affecting, our most advanced investigational drug candidates.

The results and timing of prospective and retrospective trials and pre-clinical studies can affect our stock price.
Pre-clinical studies include experiments performed in test tubes, in animals, or in cells or tissues from humans or animals. These studies include all drug studies except those conducted
in human patients, and may occur before or after initiation of clinical trials for a particular compound. Results of prospective and retrospective trials and pre-clinical studies of QNEXA,
avanafil or our other investigational drug candidates may not be viewed favorably by us or third parties, including investors, analysts, potential collaborators, the academic and medical community,
and regulators. The same may be true of how we design the development programs of our most advanced investigational drug candidates and regulatory decisions (including by us or regulatory authorities)
affecting those development programs. Biotechnology and biopharmaceutical company stock prices have declined significantly when such results and decisions were unfavorable or perceived negatively or
when an investigational drug candidate did not otherwise meet expectations.

Our share ownership is concentrated, and our officers, directors and principal stockholders acting collectively can exert significant control over matters requiring
stockholder approval.

Due to their combined stock holdings, our officers, directors and principal stockholders (stockholders holding greater than 5% of our
common stock) acting collectively may have the ability to exercise significant influence over matters requiring stockholder approval including the election of directors and approval of significant
corporate transactions. In addition, this concentration of ownership

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may
delay or prevent a change in control of our company and may make some transactions more difficult or impossible to complete without the support of these stockholders.

Our operating results may fluctuate from quarter to quarter and this fluctuation may cause our stock price to decline.

Our quarterly operating results have fluctuated in the past and are likely to fluctuate in the future. Factors contributing to these
fluctuations include, among other items, the timing and enrollment rates of clinical trials for our investigational drug candidates, timing of milestone payments, the timing of recognition of deferred
revenue, and our need for clinical and pre-commercialization supplies. Thus, quarter-to-quarter comparisons of our operating results are not indicative of what we
might expect in the future. As a result, in some future quarters our operating results may not meet the expectations of securities analysts and investors, which could result in a decline in the price
of our stock.

Future sales of our common stock may depress our stock price.

Sales of our stock by our executive officers and directors, or the perception that such sales may occur, could adversely affect the
market price of our stock. We have also registered all common stock that we may issue under our employee benefits plans. As a result, these shares can be freely sold in the public market upon
issuance, subject to restrictions under the securities laws. Some of our executive officers have adopted trading plans under SEC Rule 10b5-1 to dispose of a portion of their stock.
Any of our executive officers or directors may adopt such trading plans in the future. If any of these events cause a large number of our shares to be sold in the public market, the sales could reduce
the trading price of our common stock and impede our ability to raise future capital.

There may not be an active, liquid trading market for our common stock.

There is no guarantee that an active trading market for our common stock will be maintained on the NASDAQ Global Market. Investors may
not be able to sell their shares quickly or at the latest market price if trading in our stock is not active.

Our charter documents and Delaware law could make an acquisition of our company difficult, even if an acquisition may benefit our stockholders.

Our Board of Directors has adopted a Preferred Shares Rights Plan. The Preferred Shares Rights Plan has the effect of causing
substantial dilution to a person or group that attempts to acquire us on terms not approved by our Board of Directors. The existence of the Preferred Shares Rights Plan could limit the price that
certain investors might be willing to pay in the future for shares of our common stock and could discourage, delay or prevent a merger or acquisition that a stockholder may consider favorable.

Some
provisions of our Amended and Restated Certificate of Incorporation and Bylaws could delay or prevent a change in control of our company. Some of these
provisions:



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In
addition, we are governed by the provisions of Section 203 of Delaware General Corporate Law. These provisions may prohibit large stockholders, in particular those owning 15%
or more of our outstanding voting stock, from merging or combining with us. These and other provisions in our charter documents could reduce the price that investors might be willing to pay for shares
of our common stock in the future and result in the market price being lower than it would be without these provisions.

Changes in financial accounting standards related to share-based payments are expected to continue to have a significant effect on our reported results.

On January 1, 2006, we adopted the revised statement of Financial Accounting Standards No. SFAS 123R, Share-Based Payment, as
codified in FASB ASC topic 718,CompensationStock Compensation,or
ASC 718, which requires that we record compensation expense in the statement of operations for share-based payments, such as employee stock options, using the fair value method. The adoption of this
new standard is expected to continue to have a significant effect on our reported earnings, although it will not affect our cash flows, and could adversely impact our ability to provide accurate
guidance on our future reported financial results due to the variability of the factors used to estimate the values of share-based payments. If factors change and we employ different assumptions or
different valuation methods in the application of SFAS 123R in future periods, the compensation expense that we record under SFAS 123R may differ significantly from what we have recorded
in the current period, which could negatively affect our stock price.

Compliance with changing regulation of corporate governance and public disclosure may result in additional expenses.

Changing laws, regulations and standards relating to corporate governance and public disclosure, including the Sarbanes-Oxley Act of
2002, new SEC regulations and NASDAQ Global Market rules, are creating significant obligations and uncertainty of compliance for companies such as ours. These new or changed laws, regulations and
standards are subject to varying interpretations in many cases due to their lack of specificity, and as a result, their application in practice may evolve over time as new guidance is provided by
regulatory and governing bodies, which could result in continuing uncertainty regarding compliance matters and higher costs necessitated by ongoing revisions to disclosure and governance practices. We
are committed to maintaining high standards of corporate governance and public disclosure. As a result, our efforts to comply with evolving laws, regulations and standards have resulted in, and are
likely to continue to result in, increased general and administrative expenses and management time related to compliance activities. In
particular, our efforts to comply with Section 404 of the Sarbanes-Oxley Act of 2002 and the related regulations regarding our required assessment of our internal controls over financial
reporting and our external auditors' review and audit of our internal control over financial reporting has required the commitment of significant financial and managerial resources. We expect these
efforts to require the continued commitment of significant resources. If we fail to comply with new or changed laws, regulations and standards, our reputation may be harmed and we might be subject to
sanctions or investigation by regulatory authorities, such as the SEC. Any such action could adversely affect our financial results and the market price of our common stock.

Item 1B.Unresolved Staff Comments

None.

Item 2.Properties

In November 2006, we entered into a 30-month lease for our corporate headquarters located in Mountain View, California. The
lease commenced on February 1, 2007. The base monthly rent was set at $1.85 per square foot or $26,000 per month. The lease expired on July 31, 2009. On December 16, 2008, we
entered into a first amendment to this lease. Under the terms of the amended lease, we

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continue
to lease the office space for our corporate headquarters for a two-year period commencing on August 1, 2009 and expiring on July 31, 2011. The base monthly rent was
set at $1.64 per square foot or $23,000 per month. The amended lease allowed us one option to extend the term of the lease for one year from the expiration of the lease. On November 12, 2009,
we entered into a second amendment to this lease. The second amendment commenced on January 1, 2010, expires on July 31, 2011 and expands the leased space. The base rent for the
expansion space is set at $2.25 per square foot or $8,500 per month. The option to extend the term of the amended lease for one year from the expiration of the lease applied to this expansion space as
well. In December 2010, we entered into a third amendment to this lease. The third amendment extended the lease term for the original premises and the expansion space for a period of twelve months
commencing August 1, 2011 and terminating July 31, 2012. Under the third amendment, the base rent for the original space will be set at $1.69 per square foot, or $24,000 per month, and
the base rent for the expansion space will be set at $2.31 per square foot, or $8,700 per month. The amended lease allows us one additional option to extend the term of the lease for one year from the
expiration of the lease. The option to extend the
term of the amended lease for one year from the expiration of the lease applies to the expansion space as well.

In
general, our existing facilities are in good condition and adequate for all present and near term uses.

Item 3.Legal Proceedings

In the normal course of business, the Company receives claims and makes inquiries regarding patent infringement and other related legal
matters. The Company believes that it has meritorious claims and defenses and intends to pursue any such matters vigorously.



The Company and Acrux Limited, through its wholly owned subsidiary FemPharm Pty Ltd., or Acrux, were parties to the Testosterone
Development and Commercialization Agreement dated February 12, 2004, or the Testosterone Agreement. The Testosterone Agreement covered the Company's investigational drug candidate, Luramist,
which was licensed from Acrux under the Testosterone Agreement. On November 5, 2007, Acrux made a demand for arbitration under the Testosterone Agreement regarding certain claims related to
Luramist. Acrux's demand sought a reversion of all rights assigned to the Company related to Luramist, monetary damages and the payment of a milestone payment for Luramist under the Testosterone
Agreement and declaratory relief. The Company asserted counterclaims against Acrux in the arbitration and sought the enforcement of the Company's rights under the Testosterone Agreement. The
arbitration hearing concluded on January 23, 2009, and on April 6, 2009 the panel of arbitrators, or the Panel, issued its Interim Arbitration Award finding in favor of the Company that
it was in compliance with the Testosterone Agreement and denying all of the relief sought by Acrux in its demand. The Panel found that the Company was not in breach of the Luramist license agreement
and that the Company had used diligent, commercially reasonable efforts to develop Luramist. The Panel further ruled in favor of the Company on its counterclaim that Acrux had breached the Luramist
license agreement by failing to provide certain know-how and certain improvements in the formulation and delivery device for Luramist. The Panel denied the Acrux claim for additional
milestone payments. The Panel ordered Acrux to turn over certain information to the Company that was previously withheld in violation of the agreement by Acrux. After the parties failed to agree on a
new Outside Date by which the Company was to commence its first Phase 3 trial for Luramist, the Panel reset the Outside Date of April 30, 2006 to April 1, 2010 to reflect the
regulatory environment.

On
March 30, 2010, the Company provided written notice to Acrux of its intent to terminate the Testosterone Agreement. On April 6, 2010, in connection with Acrux's request
for further briefing on the issue of damages in light of the Company's termination of the Testosterone Agreement, the Panel

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ordered
the parties to enter into settlement discussions. On May 6, 2010, the parties agreed to the terms of a settlement agreement and mutual release, or the Settlement Agreement, resolving
any and all claims or potential claims in the arbitration and that may have or could have arisen from any case whatsoever, other than certain rights and obligations that survive the termination of the
Testosterone Agreement or are required by the Settlement Agreement. Pursuant to the Settlement Agreement, the Company transferred Luramist-related assets to Acrux, including clinical trial material,
batch release documents, inventory of applicators, FDA correspondence, intellectual property and know-how and trademarks. In addition, the Company ceased its clinical study program for
Luramist as part of the settlement. The parties did not exchange cash payments as a result of the settlement and termination of the Testosterone Agreement. The Panel retains jurisdiction over the
matter to enforce the terms of the Settlement Agreement.



A federal securities class action lawsuit captionedKovtun v. Vivus, Inc., et
al.is pending in the U.S. District Court, Northern District of California, which asserts claims for violations of Section 10(b) and 20(a) of the federal securities
laws, purportedly relating to statements allegedly made by the Company in connection with its New Drug Application, or NDA, for QNEXA as a treatment for obesity. The essential factual allegation is
that the Company and its officers misled the investing public regarding the prospects for QNEXA's NDA approval, and the drug's efficacy and safety. On February 2, 2011, the court granted a
stipulation and order appointing a lead plaintiff and a lead counsel for the class. On February 3, 2011, the court granted a stipulation and order requiring the lead plaintiff to file any
amendment to the operative complaint no later than 60 days from February 2, 2011, with the defendants' answer or motion to dismiss to be filed no later than 60 days after
plaintiffs file the amended complaint. In the event the defendants file a motion to dismiss, plaintiffs' opposition to such motion must be filed no later than 60 days after the filing of
the motion, with defendants' reply to the opposition being filed no later than 45 days after the filing of plaintiffs' opposition. Discovery is stayed in the Kovtunmatter pending resolution of the
defendants' motion to dismiss.

Also
pending in the U.S. District Court, Northern District of California and formally related to theKovtunmatter is a shareholder
derivative action captionedTurberg v. Logan, et al., which restates the allegations inKovtunby
claiming that certain of the Company's officers and directors caused or allowed the Company to violate the federal securities laws by issuing material misrepresentations to the investing public. On
February 7, 2011, the court granted a stipulation and order requiring plaintiffs to file and serve any amendment to the complaint no later than 60 days from the filing of the
consolidated amended complaint in theKovtunmatter, with the defendants' answer or motion to dismiss to be filed no later than 60 days after the
court enters an order ruling on defendants' motion to dismiss in the Kovtunmatter. In the event the defendants file a motion to dismiss in theTurbergmatter, the
plaintiffs will have 60 days to oppose the motion and the defendants will have 45 days to reply to the plaintiffs' opposition. The court order stayed all discovery in the Turbergmatter
pending resolution of the defendants' motion to dismiss.

Additionally,
three separate shareholder derivative suits are pending in California Superior Court, Santa Clara County. The allegations in these shareholder derivative suits are nearly
identical to those in theTurbergfederal shareholder derivative action. The Company has informal agreement from plaintiffs' counsel that defendants
(the members of the Company's Board of Directors) do not have to respond to the current complaints, and the Company intends to either agree with plaintiffs to stay these matters or will move the court
to do so. On February 3, 2011, the court granted a stipulation and order consolidating the three suits into the action captionedWilkinson v. Wilson, et
al.and appointing a lead plaintiff and a lead counsel for the shareholder derivative actions. The court order requires the plaintiffs to file and serve a consolidated
complaint no later than 60 days from the court's order and

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the
parties to meet and confer on a briefing schedule for the defendants' motion to dismiss the consolidated complaint no later than 30 days from the service of the consolidated complaint.

The
Company believes that the allegations in the various federal and state actions have no merit and that the Company has meritorious defenses to the claims stated in such actions. The
Company intends to vigorously defend itself in the various actions. Although there may be no merit to such allegations or claims, the Company will be required to allocate monetary and personnel
resources to defend itself. The Company believes the disposition of the current lawsuits and claims is not likely to have a material effect on our financial condition or liquidity.

In
the ordinary course of business the Company may become involved in lawsuits and subject to various claims from current and former employees including wrongful termination, sexual
discrimination and employment matters. The Company is currently a party to a lawsuit involving a former employee. The Company has also been named as a potential defendant in a complaint filed by a
former employee. The Company has investigated each of the claims and believes the allegations have no merit and that the Company has meritorious defenses to such charges. Due to the current economic
downturn, employees may be more likely to file employment-related claims. Employment-related claims also may be more likely following a poor performance review. Although there may be no merit to such
claims or legal matters, the Company may be required to allocate additional monetary and personnel resources to defend against these type of allegations. The Company believes the disposition of the
current lawsuit and claims is not likely to have a material effect on our financial condition or liquidity.

The
Company is not aware of any other asserted or unasserted claims against it where an unfavorable resolution would have an adverse material impact on the operations or financial
position of the Company.

Item 4.(Removed and Reserved).

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PART II

Item 5.Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.

VIVUS' common stock trades publicly on the NASDAQ Global Select Market under the symbol "VVUS." The following table sets forth for the
periods indicated the quarterly high and low sales prices of our common stock as reported on the NASDAQ Global Select Market.

Three Months EndedMarch 31

June 30

September 30

December 312010High

$
10.54

$
13.20

$
12.44

$
9.78Low


8.24


8.71


4.96


5.942009High

$
5.55

$
6.20

$
12.88

$
10.85Low


2.72


3.61


5.55


7.07


Stockholders

As of February 18, 2011, there were 81,888,089 shares of outstanding common stock that were held by 3,549 shareholders of record
and no outstanding shares of preferred stock. On February 18, 2011, the last reported sales price of our common stock on the NASDAQ Global Select Market was $7.78 per share.

Dividends

We have not paid any dividends since our inception and we do not intend to declare or pay any dividends on our common stock in the
foreseeable future. Declaration or payment of future dividends, if any, will be at the discretion of our Board of Directors after taking into account various factors, including VIVUS' financial
condition, operating results and current and anticipated cash needs.

Stock Options

Our stock option plans are part of a broad-based, long-term retention program that is intended to attract and retain
talented employees and directors and align stockholder and employee interests.

Pursuant
to our 2001 Stock Option Plan, or the 2001 Plan, which was approved by the stockholders at the annual meeting held on June 5, 2002, we may grant incentive or
non-statutory stock options or stock purchase rights, or SPRs. The 2001 Plan allows us to grant incentive stock options to employees at not less than 100% of the fair market value of the
stock (110% of fair market value for individuals who control more than 10% of our stock) at the date of grant, as determined by the Board of Directors. The 2001 Plan allows us to grant
non-statutory stock options to employees, directors and consultants at a price to be determined by the Board of Directors. The term of the option is determined by the Board of Directors on
the date of grant but shall not be longer than 10 years. The 2001 Plan allows us to grant SPRs to employees and consultants. Sales of stock under SPRs are made pursuant to restricted stock
purchase agreements containing provisions established by the Board of Directors. We have a right, but not the obligation, to repurchase the shares at the original sale price, which expires at a rate
to be determined by the Board of Directors. As of December 31, 2010, no SPRs had been granted under the 2001 Plan.

On
July 12, 2006, the Board of Directors adopted an amendment to the 2001 Plan to add the ability to issue Restricted Stock Units, or RSUs, under the 2001 Plan. In contrast to
restricted stock awards, the RSUs represent an obligation of VIVUS to issue unrestricted shares of common stock or

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cash
to the grantee only when and to the extent that the vesting criteria of the award are satisfied. As in the case of restricted stock awards, vesting criteria for RSUs can be based on time or other
conditions specified by the Board or an authorized committee of the Board. However, until vesting occurs, the grantee is not entitled to any stockholder rights with respect to the unvested shares.
Upon vesting of an RSU, the recipient receives one share of VIVUS stock for each vested restricted stock unit or a cash payment for the value thereof. VIVUS, in its sole discretion, may pay earned
RSUs in cash, shares, or a combination thereof. Shares represented by RSUs that are fully paid in cash again will be available for grant under the Plan. We issue new shares for settlement of vested
restricted stock units and exercises of stock options. We do not have a policy of purchasing our shares relating to our share-based programs.

On
March 29, 2010, the Company's Board of Directors terminated the 2001 Plan. In addition, the Board of Directors adopted and approved a new 2010 Equity Incentive Plan, or the
2010 Plan, with 32,000 shares remaining reserved and unissued under the 2001 Plan, subject to the approval of the Company's stockholders. The 2001 Plan, however, continues to govern awards previously
granted under it. On June 25, 2010, the Company's stockholders approved the 2010 Plan at the Company's 2010 Annual Meeting of Stockholders. The 2010 Plan provides for the grant of stock
options, stock appreciation rights, restricted stock, restricted stock units, performance shares and performance units to employees, directors and consultants, to be granted from time to time as
determined by the Board of Directors, the Compensation Committee of the Board of Directors, or its designees. The 2010 Plan's share reserve which the stockholders approved is 8,400,000 shares, plus
any shares reserved but not issued pursuant to awards under the 2001 Plan as of the date of stockholder approval, plus any shares subject to outstanding awards under the 2001 Plan that expire or
otherwise terminate without having been exercised in full, or are forfeited to or repurchased by the Company, up to a maximum of 8,111,273 shares (which was the number of shares subject to outstanding
options under the 2001 Plan as of March 11, 2010).

On
April 30, 2010, the Company's Board of Directors granted an option to purchase 400,000 shares of the Company's common stock, or the Inducement Grant, to Michael P. Miller, the
Company's new Senior Vice President and Chief Commercial Officer. The Inducement Grant was granted outside of the Company's 2010 Plan and without stockholder approval pursuant to NASDAQ Listing
Rule 5635(c)(4) and is subject to the terms and conditions of the Stand-Alone Stock Option Agreement between the Company and Michael P. Miller.

Additional
information regarding our stock option plans and plan activity for fiscal 2010, 2009 and 2008 is provided in our consolidated financial statements. See Note 8: "Stock
Option and Purchase Plans."

Information
regarding equity compensation plans is incorporated by reference from Item 12 of this report.

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Stock Performance Graph

The following graph shows a comparison of total stockholder return for holders of our common stock from December 31, 2005
through December 31, 2010 compared with the NASDAQ Stock Market (U.S.) Index and the RDG SmallCap Pharmaceutical Index. Total stockholder return assumes $100 invested at the beginning of the
period in our common stock, the stock represented in the NASDAQ Stock Market (U.S.) Index and the stock represented by the RDG SmallCap Pharmaceutical Index, respectively. This graph is presented
pursuant to SEC rules. We believe that while total stockholder return can be an important indicator of corporate performance, the stock prices of smallcap pharmaceutical stocks like VIVUS are subject
to a number of market-related factors other than company performance, such as competitive announcements, mergers and acquisitions in the industry, the general state of the economy, and the performance
of other medical technology stocks.

COMPARISON OF 5 YEAR CUMULATIVE TOTAL RETURN*Among Vivus, Inc., the NASDAQ Composite Index  and the RDG SmallCap Pharmaceutical Index

GRAPHIC

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Item 6.Selected Financial Data

The following selected financial data have been derived from our audited financial statements. The information set forth below is not
necessarily indicative of the results of future operations and should be read in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations" and the
financial statements and notes thereto included elsewhere in this Annual Report on Form 10-K. The selected data is not intended to replace the financial statements.

Selected Financial Data
(In thousands, except per share)

Selected Annual Financial Data

Year Ended December 312010

2009

2008

2007

2006Income Statement Data:License and other revenue

$


$
31,395

$
83,721

$
34,884

$
Operating expenses:Research and development


39,971


70,940


76,673


26,240


12,366General and administrative


25,656


13,870


12,253


9,981


7,534Total operating expenses


65,627


84,810


88,926


36,221


19,900Loss from operations


(65,627
)

(53,415
)

(5,205
)

(1,337
)

(19,900
)Interest and other income (expense)Interest and other income


468


1,998


4,406


4,672


1,562Interest expense


(4,308
)

(3,693
)

(659
)

(45
)

(143
)Other-than-temporary loss on impaired securities





(654
)

(7,689
)




Loss on early extinguishment of debt


(5,958
)










Total interest and other income (expense)


(9,798
)

(2,349
)

(3,942
)

4,627


1,419Income (loss) from continuing operations before income taxes


(75,425
)

(55,764
)

(9,147
)

3,290


(18,481
)Benefit (provision) for income taxes


(9
)

2,379


7


(4,883
)

(1
)Net loss from continuing operations


(75,434
)

(53,385
)

(9,140
)

(1,593
)

(18,482
)Net income (loss) from discontinued operations, net of income taxes


9,369


(906
)

(800
)

(791
)

(3,142
)Net loss

$
(66,065
)
$
(54,291
)
$
(9,940
)
$
(2,384
)
$
(21,624
)Basic and diluted net income (loss) per share:Continuing operations

$
(0.93
)
$
(0.74
)
$
(0.15
)
$
(0.03
)
$
(0.38
)Discontinued operations

$
0.11

$
(0.01
)
$
(0.01
)
$
(0.01
)
$
(0.07
)Net loss per share

$
(0.82
)
$
(0.75
)
$
(0.16
)
$
(0.04
)
$
(0.45
)Shares used in per share computation:Basic


81,017


72,779


63,724


58,522


48,103Diluted


83,821


72,779


63,724


58,522


48,103Balance Sheet Data (at year end):Working capital

$
131,781

$
200,852

$
134,880

$
90,230

$
57,564Total assets

$
144,286

$
230,032

$
207,622

$
199,289

$
78,214Long-term debt

$


$
19,998

$
11,177

$
5,062

$
11,488Accumulated deficit

$
(300,125
)
$
(234,060
)
$
(179,769
)
$
(169,829
)
$
(168,651
)Stockholders' equity

$
132,002

$
186,726

$
131,213

$
60,167

$
53,140


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Item 7.Management's Discussion and Analysis of Financial Conditions and Results of Operations

Forward Looking Statement

This Management's Discussion and Analysis of Financial Conditions and Results of Operations and other parts of
this Form 10-K contain "forward-looking" statements that involve risks and uncertainties. These statements typically may be identified by the use of forward-looking words or phrases
such as "may," "will," "believe," "expect," "intend," "anticipate," "predict," "should," "planned," "continue," "likely," "opportunity," "estimated," and "potential," the negative use of these words
or other similar words. All forward-looking statements included in this document are based on our current expectations, and we assume no obligation to update any such forward-looking statements. The
Private Securities Litigation Reform Act of 1995 provides a "safe harbor" for such forward-looking statements. In order to comply with the terms of the safe harbor, we note that a variety of factors
could cause actual results and experiences to differ materially from the anticipated results or other expectations expressed in such forward-looking statements. On October 28, 2010, we received
a Complete Response Letter, or CRL, regarding the New Drug Application, or NDA, for QNEXA® as a treatment for obesity. The CRL stated that in its current form, the NDA for QNEXA was not
approvable. The CRL included the following areas: clinical, labeling, Risk Evaluation and Mitigation Strategy, or REMS, safety update, and drug scheduling. In the clinical section of the CRL, the FDA
requested a comprehensive assessment of topiramate's and QNEXA's teratogenic potential including a detailed plan and strategy to evaluate and mitigate the potential teratogenic risks in women of
childbearing potential taking the drug for the treatment of obesity. In addition, the FDA asked us to provide evidence that the elevation in heart rate (mean 1.6 beats per minute on the top dose)
associated with QNEXA does not increase the risk for major adverse cardiovascular events. The FDA requested that we formally submit the results from the completed SEQUEL study (OB-305), a
52-week extension study for a subset of 675 patients who completed the previously reported 56-week CONQUER study. The FDA reserved the right to comment further on proposed
labeling. On REMS, the FDA requested that a discussion of an already-submitted REMS plan be continued after we have submitted the written response. The agency also requested a safety update of any new
adverse events be submitted to the NDA. Finally, the FDA stated that if approved, QNEXA would be a Schedule IV drug due to the phentermine component. On January 19, 2011, we held an
End-of-Review meeting with the FDA to discuss the items contained in the CRL and the information we plan to include in the resubmission of the NDA for QNEXA. In anticipation of
the meeting, we had provided a briefing document that included analyses integrating existing non-clinical and clinical data to provide a comprehensive assessment of the teratogenic
potential of topiramate. In addition, we provided several new analyses to demonstrate that QNEXA does not increase the risk for major cardiovascular events, which analyses included cardiovascular data
from our SEQUEL (OB-305) and Sleep Apnea (OB-204) studies. We also provided a synopsis of the final study report for the SEQUEL study. No new clinical studies were requested in
the CRL. At the meeting, presentations were made on the comprehensive assessment of the teratogenic potential of topiramate and QNEXA, and evidence was presented that the increase in heart rate of 1.6
beats per minute does not increase the risk for major adverse cardiovascular events. The discussion also included elements of our proposed REMS program for QNEXA. The FDA chose to focus the meeting on
the discussion of teratogenic potential for topiramate, specifically the incidence of oral clefts observed in the North American AED Pregnancy Registry and in the UK Epilepsy and Pregnancy Registry.
As part of this meeting, the FDA requested that we assess the feasibility of performing a retrospective observational study utilizing existing electronic healthcare databases to determine fetal
outcomes including congenital malformations with an interest in oral cleft and low birth weight (less than 2,500 gm) in the offspring of women who received prophylaxis treatment with 100 mg of
topiramate for migraine during pregnancy, or the Feasibility Assessment. Although no other requests for additional information or studies were made by the FDA at the meeting or in the CRL, there can
be no assurance that the FDA will not request or require us to provide additional information or undertake additional studies in connection with the QNEXA NDA. In the QNEXA studies, which included 15
offspring from women
exposed to QNEXA or topiramate, there were no reports of any congenital malformations or low birth weight. The timing of the planned resubmission of the QNEXA NDA will be determined after agreement

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with the FDA is reached on the Feasibility Assessment and whether a retrospective observational study would be needed. We expect to reach agreement with the FDA, and if deemed feasible, initiate the
retrospective observational study on fetal outcomes within the next two months. It is our goal to resubmit the NDA for QNEXA to the FDA by the end of 2011. The risks and uncertainties that may affect
the operations, performance, development, and results of our business include but are not limited to: (1) our ability to complete the Feasibility Assessment made by the FDA during our
End-of-Review meeting held January 19, 2011. As no additional guidance was given by the FDA as to the potential parameters of the study it may be difficult to interpret
the definition of feasibility. In addition we do not know if we will be able to determine if enough live births to mothers exposed to 100 mg of topiramate exist, the condition of their records and the
records of the infants, the ability to properly link records of the mother to those of the infant, the ability to determine other important infant health factors including but not limited to the
health status of the mother and the diagnosis for which she was prescribed topiramate, concomitant use of medications, smoking status during pregnancy, use of alcohol or illegal substances during
pregnancy, mothers weight, nutrition during pregnancy and folic acid supplementation, family history and any other information necessary to determine the nature of any malformations, in particular
oral cleft. If the FDA does not agree with our assessment we may appeal the decision or amend the NDA to exclude women of childbearing potential; (2) the FDA's interpretation of the data we
submit relating to cardiovascular safety; (3) the FDA's interpretation of the data from our SEQUEL study (OB-305) and Sleep Apnea study (OB-204); (4) that we may
be required to conduct additional clinical trials; (5) impact on future sales based on contraindications contained in the label and extent of the REMS program; (6) our history of losses
and variable quarterly results; (7) substantial competition; (8) risks related to the failure to protect our intellectual property and litigation in which we may become involved;
(9) uncertainties of government or third party payer reimbursement; (10) our reliance on sole source suppliers; (11) our limited sales and marketing efforts and our reliance on
third parties; (12) failure to continue to develop innovative investigational drug candidates and drugs; (13) risks related to the failure to obtain United States Food and Drug
Administration, or FDA, or foreign authority clearances or approvals and noncompliance with FDA regulations; (14) our ability to demonstrate through clinical testing the safety and
effectiveness of our investigational drug candidates; (15) our dependence on the performance of our collaborative partners; (16) the timing of initiation and completion of clinical
trials and submissions to the FDA; (17) the volatility and liquidity of the financial markets; (18) our liquidity and capital resources; (19) our expected future revenues,
operations and expenditures; and (20) other factors that are described from time to time in our periodic filings with the Securities and Exchange Commission, or the SEC, including those set
forth in this filing as "Item 1A. Risk Factors."

All percentage amounts and ratios were calculated using the underlying data in thousands. Operating results for the year ended December 31, 2010, are not
necessarily indicative of the results that may be expected for future fiscal years. The following discussion and analysis should be read in conjunction with our historical financial statements and the
notes to those financial statements that are included in Item 8 of Part II of this Form 10-K.

Overview

VIVUS, Inc. is a biopharmaceutical company, incorporated in 1991 as a California corporation and reincorporated in 1996 as a
Delaware corporation, dedicated to the development and commercialization of therapeutic drugs for large underserved markets. Currently, we have one investigational drug candidate, QNEXA, which has
been submitted for approval as a treatment for weight loss in the U.S. and European Union. In the U.S., we received a Complete Response Letter, or CRL, for QNEXA in October 2010, which contained
requests for additional information. On January 19, 2011, we held an End-of-Review meeting with the FDA to discuss its requests and our planned resubmission of the NDA
for QNEXA. The FDA has requested that we perform the Feasibility Assessment, which is currently in process. We also have investigational drug candidates in various stages of clinical development, and
we are focused on market opportunities in obesity and related morbidities, such as sleep apnea and diabetes, and men's sexual health. With respect to obesity, it is estimated that the potential

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pharmaceutical
market for obesity could approach $5 billion annually. Annual sales of approved drugs for diabetes currently exceed $10 billion. There are currently no approved
pharmaceutical therapies for sleep apnea; however, the sales of devices and related consumables used to treat sleep apnea exceed $2 billion annually. The indications targeted by our
investigational drug candidate as a treatment for erectile dysfunction represent a projected market greater than $4 billion annually.

Recent Developments

As mentioned above, on January 19, 2011, we held an End-of-Review meeting with the FDA to discuss our
planned response to the CRL received on October 28, 2010, regarding the New Drug Application for QNEXA as a treatment for obesity. The CRL stated that in its current form, the NDA for QNEXA was
not approvable. The CRL included the following areas: clinical, labeling, REMS, safety update, and drug scheduling. In the clinical section of the CRL, the FDA requested a comprehensive assessment of
topiramate's and QNEXA's teratogenic potential including a detailed plan and strategy to evaluate and mitigate the potential teratogenic risks in women of childbearing potential taking the drug for
the treatment of obesity. In addition, the FDA asked us to provide evidence that the elevation in heart rate (mean 1.6 beats per minute on the top dose) associated with QNEXA does not increase the
risk for major adverse cardiovascular events. The FDA requested that we formally submit the results from the completed SEQUEL study (OB-305), a 52-week extension study for a
subset of 675 patients who completed the previously reported 56-week CONQUER study. The FDA reserved the right to comment further on proposed labeling. On REMS, the FDA requested that a
discussion of an already-submitted REMS plan be continued after we have submitted the written response. The agency also requested a safety update of any new adverse events be submitted to the NDA.
Finally, the FDA stated that if approved, QNEXA would be a Schedule IV drug
due to the phentermine component. In anticipation of the meeting held with the FDA on January 19, 2011, we had provided a briefing document that included analyses integrating existing
non-clinical and clinical data to provide a comprehensive assessment of the teratogenic potential of topiramate. In addition, we provided several new analyses to demonstrate that QNEXA
does not increase the risk for major cardiovascular events, which analyses included cardiovascular data from our SEQUEL (OB-305) and Sleep Apnea (OB-204) studies. We also
provided a synopsis of the final study report for the SEQUEL study. No new clinical studies were requested in the CRL. At the meeting, presentations were made on the comprehensive assessment of the
teratogenic potential of topiramate and QNEXA, and evidence was presented that the increase in heart rate of 1.6 beats per minute does not increase the risk for major adverse cardiovascular events.
The discussion also included elements of our proposed REMS program for QNEXA. The FDA chose to focus the meeting on the discussion of teratogenic potential for topiramate, specifically the incidence
of oral clefts observed in the North American AED Pregnancy Registry and in the UK Epilepsy and Pregnancy Registry. As part of this meeting, the FDA requested that we complete the Feasibility
Assessment. Although no other requests for additional information or studies were made by the FDA at the meeting or in the CRL, there can be no assurance that the FDA will not request or require us to
provide additional information or undertake additional studies in connection with the QNEXA NDA. In the QNEXA studies, which included 15 births from women exposed to QNEXA or topiramate, there were no
reports of any congenital malformations or low birth weight. The timing of the planned resubmission of the QNEXA NDA will be determined after agreement with the FDA is reached on the Feasibility
Assessment and whether a retrospective observational study would be needed. We expect to reach agreement with the FDA, and if deemed feasible, initiate the retrospective observational study on fetal
outcomes within the next two months. It is our goal to resubmit the NDA for QNEXA to the FDA by the end of 2011.

On
October 1, 2010, we entered into a definitive Asset Purchase Agreement with Meda AB, or Meda, to sell certain rights and assets related to MUSE, transurethral alprostadil, for
the treatment of erectile dysfunction, or the MUSE Transaction. Meda has been our European distributor of MUSE since 2002. The assets sold in the MUSE Transaction include the U.S. and foreign MUSE
patents,

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existing
inventory and the manufacturing facility located in Lakewood, New Jersey. We retained all of the liabilities associated with the pre-closing operations and products of the MUSE
business and the accounts receivables for pre-closing MUSE sales. The transaction closed on November 5, 2010. Prior to the closing of the MUSE Transaction, we regained all of the
rights to MUSE and avanafil held by Deerfield Management Company, L.P., and affiliates, and Crown Bank, N.A., or Crown.

On
October 15, 2010, in preparation for the closing of the MUSE Transaction and in accordance with the terms of the agreements with Crown, we paid $4.8 million to Crown in
satisfaction of all obligations owed to them under these agreements. As a result, the security interests and Certificate of Deposit held by Crown were terminated in our favor. On October 21,
2010, we exercised the Option under the Deerfield OPA, and we paid an aggregate amount totaling $27.1 million, which consisted of the Base Option Price of $25 million, less the Option
Premium Adjustment of $2 million, plus the Cash Adjustment of $2.8 million and the Royalty Adjustment of $1.3 million. These payments satisfied all of the financial obligations
under the FARA and OPA. As a result, all of the outstanding shares and the $2.8 million of cash of the Deerfield Sub are owned by us, all of the outstanding loans owed by the
Deerfield Sub have been repaid and the security interests in the collateral related to MUSE and avanafil held by the Deerfield Sub and the Deerfield Affiliates as part of the FARA and OPA were
terminated. In December 2010, the Deerfield Sub was dissolved.

Under
the terms of the MUSE Transaction, we received an upfront payment of $22 million upon the closing, on November 5, 2010, and are eligible to receive an additional
$1.5 million based on future sales of MUSE, provided that certain sales milestones are reached. Meda is now responsible for the manufacturing, selling and marketing of MUSE. Meda also assumed
all post-closing expenses and liabilities associated with MUSE. We have agreed not to develop, manufacture or sell any transurethral erectile dysfunction drugs for a period of three years
following the closing of the MUSE Transaction. The assets and liabilities and results of operations associated with MUSE have been reported as discontinued operations for all periods presented.

On
December 17, 2010, we filed a Marketing Authorization Application, or MAA, with the European Medicines Agency, or EMA, for QNEXA Controlled-Release Capsules in the European
Union, or EU. The proposed indication in the EU is for the treatment of obesity, including weight loss and maintenance of weight loss, and should be used in conjunction with a mildly hypocaloric diet.
If approved in the EU, QNEXA could be recommended for obese adult patients (BMI 3 30 kg/m2), or overweight patients (BMI
3 27 kg/m2) with weight-related co-morbidities such as hypertension, type 2 diabetes, dyslipidemia, or central adiposity (abdominal
obesity). In Europe, approximately 150 million adults are considered overweight or obese, and the prevalence is rising rapidly. According to EMA guidelines for medicinal products used in weight
control, a demonstration of weight loss of at least 10% of baseline weight, which is at least greater than that associated with placebo, is considered to be a valid primary efficacy criterion. We
believe QNEXA has met this efficacy criterion set by the EMA for obesity therapies. In addition, the mean weight loss for the mid- and top-dose of QNEXA at the end of two years
was 10.4% and 11.4%, respectively, which met the efficacy benchmark set by the EMA for obesity therapies. These results were shown to be sustained over a two-year period and were
associated with significant improvements in weight-related co-morbidities such as hypertension, dyslipidemia and diabetes. The EMA filing is comprised of data from over 4,500 overweight or
obese patients with a broad range of weight-related co-morbidities. Two-year, double-blind data from SEQUEL (OB-305) were also included in the filing to demonstrate
durability of treatment response and long-term safety. The EMA's review of QNEXA will follow their centralized marketing authorization procedure. If approved, QNEXA could receive marketing
authorization in all 27 EU member countries. The MAA was officially validated for central procedure on January 19, 2011.

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Our Future

Our goal is to build a successful biopharmaceutical company through the development and commercialization of innovative proprietary
drugs. We intend to achieve this by:



It
is our objective to become a leader in the development and commercialization of drugs for large underserved markets. We believe we have strong intellectual property supporting several
opportunities in obesity and related disorders, such as sleep apnea and diabetes, and men's sexual health. Our future growth depends on our ability to further develop and obtain regulatory approval of
our investigational drug candidates for indications that we have studied, or plan to study, as well as in-licensing and product line extensions.

We
have funded operations primarily through private and public offerings of our common stock, through the sale of the rights to Evamist and through product sales of MUSE (alprostadil).
We expect to generate future net losses due to increases in operating expenses as our various investigational drug candidates are advanced through the various stages of clinical development and for
pre-commercialization activities. In connection with the sale of Evamist, to date we have received an aggregate of $150 million. The sale of Evamist was a unique transaction. An
initial $10 million was paid at closing and $140 million was paid upon the FDA's approval of the Evamist NDA. These payments were non-refundable and were originally recorded
as deferred revenue and were recognized as license and other revenue ratably over a 21.5-month period, from August 1, 2007 to May 15, 2009. All of the revenue deferred from
the Evamist sale has been recognized. As of December 31, 2010, we have incurred a cumulative deficit of $300.1 million and expect to incur operating losses in future years.

Critical Accounting Policies and Estimates

The discussion and analysis of our financial condition and results of operations are based upon our consolidated financial statements,
which have been prepared in accordance with accounting principles generally accepted in the U.S.. The preparation of these financial statements requires us to make estimates and judgments that affect
the reported amounts of assets, liabilities, revenues and expenses, and related disclosure of contingent assets and liabilities. On an ongoing basis, we evaluate our estimates, including those related
to available-for-sale securities, research and development expenses, income taxes, inventories, contingencies and litigation and stock-based compensation. We base our estimates
on historical experience, information received from third parties and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for
making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or
conditions.

We
believe the following critical accounting policies affect our more significant judgments and estimates used in the preparation of our consolidated financial statements:

Revenue Recognition

License and Other Revenue:We recognize license revenue in accordance with the SEC's Staff Accounting Bulletin No. 104,
Revenue Recognition, as codified in the Financial Accounting Standards Board's, or FASB, Accounting Standards Codification, or ASC, topic 605, Revenue Recognition,
 or ASC 605. When evaluating multiple element arrangements, we consider whether the components of the

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arrangement
represent separate units of accounting as defined in Emerging Issues Task Force Issue No. 00-21,Revenue Arrangements with Multiple
Deliverables, or EITF 00-21, as codified in FASB ASC topic 605, subtopic 25Multiple Element Arrangements,or
ASC 605-25. In accordance with EITF 00-21, we recognize revenue for delivered elements only when the delivered element has stand-alone value and we have objective and
reliable evidence of fair value for each undelivered element. If the fair value of any undelivered element included in a multiple element arrangement cannot be objectively determined, revenue is
deferred until all elements are delivered and services have been performed, or until fair value can objectively be determined for any remaining undelivered elements, or such elements are
insignificant. Application of this standard requires subjective determinations and requires management to make judgments about the fair value of the individual elements and whether such elements are
separable from the other aspects of the contractual relationship.

Revenue
from non-refundable, upfront license fees where we have continuing involvement is recognized ratably over the development or agreement period. Revenue associated with
performance milestones is recognized based upon the achievement of the milestones, as defined in the respective agreements.

On
May 15, 2007, we closed our transaction with K-V Pharmaceutical Company, or K-V, for the sale of our investigational drug candidate, Evamist, a
metered-dose transdermal spray for the treatment of menopause symptoms. At the time of the sale, Evamist was an investigational product and was not yet approved by the FDA for marketing.
The sale transaction contained multiple deliverables, including: the delivery at closing of the Evamist assets (mainly raw material inventory and certain fixed assets); a grant of a sublicense of our
rights under a license related to Evamist, and a license to the MDTS applicator; the delivery upon receipt of regulatory approval of Evamist, along with all regulatory submissions; and, lastly, the
delivery after FDA approval of certain transition services and a license to improvements to the MDTS applicator. We received approval from the FDA to market Evamist on July 27, 2007, or FDA
Approval, and on August 1, 2007, we transferred and assigned the Evamist FDA submissions and all files related thereto to K-V. In August 2008, we assigned all of our rights and
obligations under the Evamist license agreement to K-V. We received an upfront payment of $10 million in May 2007 upon the closing and received an additional $140 million
milestone payment in August 2007 upon FDA Approval. These payments are non-refundable. We evaluated this multiple deliverable arrangement to determine whether the deliverables were divided
into separate units of accounting. Upon FDA Approval, the two remaining deliverables were the transition services to be performed under the Transition Services Agreement, or TSA, and a license to
improvements to the MDTS applicator, or Improvement License, during the two-year period commencing with the closing, or May 15, 2007, and ending on May 15, 2009. We were able
to establish fair value for the TSA. As it relates to the Improvement License, no specific value was assigned in the agreement. We had no obligation to develop improvements to the MDTS applicator and
had no plans to expend significant resources in this endeavor. However, we did not have objective, reliable evidence of fair value or evidence of inconsequential value to the customer of the
Improvement License. Accordingly, the delivered items, together with the undelivered items, were bundled together and were treated as one unit of accounting. As a result, the initial
$10 million paid at closing and the $140 million paid upon FDA Approval were recorded as deferred revenue and have been recognized as license revenue ratably over the
21.5-month term of the Improvement License, from August 1, 2007 to May 15, 2009. The revenue related to the transaction recognized for years ended December 31, 2009,
2008 and 2007 was $31.4 million, $83.7 million and $34.9 million, respectively.

In
September 2009, the FASB issued Accounting Standards Update, or ASU, No. 2009-13,Revenue Recognition (Topic 605): Multiple-Deliverable
Revenue Arrangements. ASU No. 2009-13 amends the guidance for measurement and separation of deliverables in multiple element arrangements under EITF Issue
00-21, as codified in FASB ASC 605-25, and significantly increases the related disclosure requirements. Under this new
guidance, which will be effective for us beginning January 1, 2011, our accounting for the revenue from the sale of the Evamist transaction may have been different.

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Research and Development Expenses

Research and development, or R&D, expenses include license fees, related compensation, consultants' fees, facilities costs,
administrative expenses related to R&D activities and clinical trial costs at other companies and research institutions under agreements that are generally cancelable, among other related R&D costs.
We also record accruals for estimated ongoing clinical trial costs. Clinical trial costs represent costs incurred by clinical research organizations, or CROs, and clinical sites and include
advertising for clinical trials and patient recruitment costs. These costs are recorded as a component of R&D expenses and are expensed as incurred. Under our agreements, progress payments are
typically made to investigators, clinical sites and CROs. We analyze the progress of the clinical trials, including levels of patient enrollment, invoices received and contracted costs when evaluating
the adequacy of accrued liabilities. Significant judgments and estimates must be made and used in determining the accrued balance in any accounting period. Actual results could differ from those
estimates under different assumptions. Revisions are charged to expense in the period in which the facts that give rise to the revision become known.

Income Taxes

We make certain estimates and judgments in determining income tax expense for financial statement purposes. These estimates and
judgments occur in the calculation of certain tax assets and liabilities, which arise from differences in the timing of recognition of revenue and expense for tax and financial statement purposes.

As
part of the process of preparing our consolidated financial statements, we are required to estimate our income taxes in each of the jurisdictions in which we operate. This process
involves us estimating our current tax exposure under the most recent tax laws and assessing temporary differences resulting from differing treatment of items for tax and accounting purposes. These
differences result in deferred tax assets and liabilities, which are included in our consolidated balance sheets.

We
assess the likelihood that we will be able to recover our deferred tax assets. We consider all available evidence, both positive and negative, including historical levels of income,
expectations and risks associated with estimates of future taxable income and ongoing prudent and feasible tax planning strategies in assessing the need for a valuation allowance. If it is not more
likely than not that we will recover our deferred tax assets, we will increase our provision for taxes by recording a valuation allowance against the deferred tax assets that we estimate will not
ultimately be recoverable. As a result of our analysis of all available evidence, both positive and negative, as of December 31, 2010, it was considered more likely than not that the Company's
deferred tax assets would not be realized. However, should there be a change in our ability to recover our deferred tax assets; we would recognize a benefit to our tax provision in the period in which
we determine that it is more likely than not that we will recover our deferred tax assets.

Inventories

Inventories are valued at the lower of cost (first in, first out) or market. We record inventory reserves for estimated obsolescence,
unmarketable or excess inventory equal to the difference between the cost of inventory and the estimated market value based upon assumptions about future demand and market conditions. If actual market
conditions are less favorable than those projected by management, inventory write-downs may be required.

Cash and Cash Equivalents

The Company considers highly liquid investments with maturities from the date of purchase of three months or less to be cash
equivalents. At December 31, 2010, all cash equivalents are invested in money market funds and U.S. Treasury securities. These accounts are recorded at fair value.

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Cash
with restrictions for a period of greater than 12 months is classified as restricted cash, a non-current asset.

Available-for-Sale Securities

We focus on liquidity and capital preservation in our investments in available-for-sale securities. Our
investment policy, as approved by the Audit Committee of the Board of Directors, allows us to invest our excess cash balances in money market and marketable securities, primarily U.S. Treasury
securities and debt securities of U.S. government agencies, corporate debt securities and asset-backed securities. We periodically evaluate our investments to determine if impairment charges are
required.

We
determine the appropriate classification of marketable securities at the time of purchase and reevaluate such designation at each balance sheet date. Our marketable securities have
been classified and accounted for as available-for-sale. We may or may not hold securities with stated maturities greater than 12 months until maturity. In response to
changes in the availability of and the yield on alternative investments as well as liquidity requirements, we may sell these securities prior to their stated maturities. As these securities are viewed
by us as available to support current operations securities with maturities beyond 12 months are classified as current assets.

Securities
are carried at fair value, with the unrealized gains and losses, net of taxes, reported as a component of stockholders' equity, unless the decline in value is deemed to be
other-than-temporary and we intend to sell such securities before recovering their costs, in which case such securities are written down to fair value and the loss is charged
to other-than-temporary loss on impaired securities. We evaluate our investment securities for other-than-temporary declines based on quantitative and
qualitative factors. Any realized gains or losses on the sale of marketable securities are determined on a specific identification method, and such gains and losses are reflected as a component of
interest income.

SFAS
No. 115,Accounting for Certain Investments in Debt and Equity Securities, FSP SFAS 115-2 and
SFAS 124-4,Recognition and Presentation of Other-than-Temporary Impairments ("FSP
115-2/SFAS 124-2")and SAB Topic 5M,Accounting for Non-current Marketable Equity
Securities, as codified in FASB ASC topic 320,InvestmentsDebt and Equity Securities, or ASC 320, provide guidance
on determining when an investment is other-than-temporarily impaired. FSP 115-2/124-2 is effective for all periods ending after June 15, 2009 and
provides additional guidance designed to create a greater clarity and consistency in accounting for and presenting impairment losses on securities. For securities that are deemed to be
other-than-temporarily impaired, the security is adjusted to fair value and the resulting losses are recognized in other-than-temporary loss on impaired
securities in the consolidated statements of operations.

During
our quarterly impairment assessments, we determined that a decline in value of certain securities was other-than-temporary. Accordingly, we recorded
other-than-temporary impairment adjustments of $654,000 in the year ended December 31, 2009. We included this non-cash impairment charge in
other-than-temporary loss on impaired securities in the consolidated statements of operations. These securities covered a number of industries.

Contingencies and Litigation

We are periodically involved in disputes and litigation related to a variety of matters. When it is probable that we will experience a
loss, and that loss is quantifiable, we record appropriate reserves. We record legal fees and costs as an expense when incurred.

Share-Based Payments

We follow the fair value method of accounting for share-based compensation arrangements in accordance with SFAS 123R, Share-Based Payment, as codified in FASB ASC topic 718,Compensation

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Stock Compensation,or ASC 718. We adopted SFAS 123R effective January 1, 2006 using the modified prospective method of transition. Under SFAS 123R, the
estimated fair value of share-based compensation, including stock options and restricted stock units granted under our Stock Option Plan and purchases of common stock by employees at a discount to
market price under the Employee Stock Purchase Plan, or the ESPP, is recognized as compensation expense. Compensation expense for purchases under the ESPP is recognized based on the estimated fair
value of the common stock purchase rights during each offering period and the percentage of the purchase discount.

We
recorded $7.4 million, $4.8 million and $4.7 million of share-based compensation expense from continuing and discontinued operations for the years ended
December 31, 2010, 2009 and 2008, respectively. Share-based compensation expense is allocated among research and development, general and administrative expenses and discontinued operations
based on the function of the related employee. This charge had no impact on our cash flows for the periods presented.

We
use the Black-Scholes option pricing model to estimate the fair value of the share-based awards as of the grant date. The Black-Scholes model, by its design, is highly complex, and
dependent upon key data inputs estimated by management. The primary data inputs with the greatest degree of judgment are the estimated lives of the share-based awards and the estimated volatility of
our stock price. The Black-Scholes model is highly sensitive to changes in these two data inputs. The expected term of the options represents the period of time that options granted are expected to be
outstanding and is derived by analyzing the historical experience of similar awards, giving consideration to the contractual terms of the stock-based awards, vesting schedules and expectations of
future employee behavior. We determine expected volatility using the historical method, which is based on the daily historical trading data of our common stock over the expected term of the option.
Management selected the historical method primarily because we have not identified a more reliable or appropriate method to predict future volatility. For more information about ASC 718, see
Note 8: "Stock Option and Purchase Plans" to the notes to the consolidated financial statements included in this Form 10-K.

Fair Value

On January 1, 2008, we adopted SFAS No. 157Fair Value Measurements,as
codified in FASB ASC 820,Fair Value Measurements and Disclosures,or ASC 820, and effective October 10, 2008, we adopted FSP No.
SFAS 157-3,Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not Active,except as it applies to the
nonfinancial assets and nonfinancial liabilities subject to FSP 157-2. On January 1, 2009, we adopted SFAS No 157 with respect to non-financial assets and
non-financial liabilities. On June 15, 2009 we adopted FSP 157-4,Determining Fair Value When the Volume and Level of Activity for the Assets or
Liabilities Have Significantly Decreased and Identifying Transactions That Are Not Orderly.Adoption of the provisions of these standards did not have a material effect on our
financial position.

Financial Instruments Measured at Fair Value.Our cash and cash equivalents and available-for-sale financial instruments are
carried at fair value and we make estimates regarding valuation of these assets measured at fair value in preparing the consolidated financial statements.

Fair Value MeasurementDefinition and Hierarchy.SFAS No. 157 defines fair value as the price that would be received to sell
an
asset or paid to transfer a liability (i.e., the "exit price") in an orderly transaction between market participants at the measurement date.

Valuation Technique.SFAS No. 157 establishes a hierarchy for inputs used in measuring fair value that maximizes the use of
observable inputs
and minimizes the use of unobservable inputs by requiring that the observable inputs be used when available. Observable inputs are inputs that market participants would use in pricing the asset or
liability developed based on market data obtained from sources independent of VIVUS. Unobservable inputs are inputs that reflect our assumptions about the assumptions market participants would use in
pricing the asset or liability developed based on the best

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information
available in the circumstances. SFAS No. 157 prescribes three valuation techniques that shall be used to measure fair value as follows:



One
or a combination of the approaches above can be used to calculate fair value, whichever results in the most representative fair value.

In
addition to the three valuation techniques, SFAS No. 157 prescribes a fair value hierarchy in order to increase consistency and comparability in fair value measurements and
related disclosures. The hierarchy is broken down into three levels based on the reliability of inputs as follows:



These
types of instruments primarily consist of financial instruments whose value is based on quoted market prices such as cash, money market funds and U.S. Treasury securities that are
actively traded. Management judgment was required to determine our policy that defines the levels at which sufficient volume and frequency of transactions is met for a market to be considered active.



The
types of instruments valued based on other observable inputs include debt securities of U.S. government agencies, corporate bonds, mortgage-backed and asset-backed products.
Substantially all of these assumptions are observable in the marketplace, can be derived from observable data or are supported by observable levels at which transactions are executed in the
marketplace.



These
types of instruments have included certain corporate bonds, mortgage-backed securities and asset-backed securities. We have no Level 3 securities as of December 31,
2010 or 2009. Level 3 is comprised of unobservable inputs that are supported by little or no market activity. These instruments are considered Level 3 when their fair values are
determined using pricing models, discounted cash flows or similar techniques and at least one significant model assumption or input is unobservable. Level 3 may still include some observable
inputs such as yield spreads derived from markets with limited activity. Level 3 financial assets include securities for which there is limited market activity such that the determination of
fair value requires significant judgment or estimation. The availability of observable inputs can vary from product to product and is affected by a wide variety of factors, including, for example, the
type of product, whether the product is new and not yet established in the marketplace, and other characteristics particular to the transaction. To the extent that valuation is based on models or
inputs that are less observable or unobservable in the market, the determination of fair value requires more judgment. Accordingly, the degree of judgment exercised by us in determining fair value is
greatest for instruments categorized in Level 3. In certain cases, the inputs used to measure fair value may fall into different levels of the fair value hierarchy. In such cases, for
disclosure purposes

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the
level in the fair value hierarchy within which the fair value measurement in its entirety falls is determined based on the lowest level input that is significant to the fair value measurement in
its entirety.



As of December 31, 2010, our cash and cash equivalents and available-for-sale securities measured at
fair value on a recurring basis totaled $139.2 million.

All
of our cash and cash equivalents and available-for-sale securities are in cash, money market instruments and U.S. Treasury securities at December 31,
2010, and these are classified as Level 1. The valuation techniques used to measure the fair values of these financial instruments were derived from quoted market prices, as substantially all
of these instruments have maturity dates, if any, within one year from the date of purchase and active markets for these instruments exists.

Deerfield Financing

On April 3, 2008, we entered into several agreements with Deerfield Management Company, L.P., or Deerfield, a healthcare
investment fund, and its affiliates, Deerfield Private Design Fund L.P. and Deerfield Private Design International, L.P. (collectively, the Deerfield Affiliates). Certain of the
agreements were amended and restated on March 16, 2009, which included the addition of Deerfield PDI Financing L.P. as a Deerfield Affiliate. Under the agreements, Deerfield and its
affiliates provided us with $30 million in funding, consisting of $20 million from the Funding and Royalty Agreement, or FARA, entered into with a newly incorporated subsidiary of
Deerfield, the Deerfield Sub, and $10 million from the sale of our common stock. Under the FARA, we paid royalties on the net sales of MUSE to the Deerfield Sub. The FARA had a term of
10 years.

We
entered into the Option and Put Agreement with the Deerfield Affiliates and the Deerfield Sub, dated April 3, 2008, and an Amended and Restated Option and Put Agreement dated
March 16, 2009, or the OPA. Pursuant to the OPA, the Deerfield Affiliates granted us an option to purchase all of the outstanding shares of common stock of the Deerfield Sub from the Deerfield
Affiliates, referred to as the Option. Our obligation to pay royalties terminated upon the exercise of the Option. The base consideration for the Option exercise, or Base Option Price, was
$25 million, less $2 million we paid upon closing, as the Option was exercised on or prior to the third anniversary of the execution of the OPA. The aggregate consideration payable by us
upon exercise of the Option, or the Option Purchase Price, was equal to the sum of the Base Option Price, plus: (i) the cash and cash equivalents held by the Deerfield Sub at the date of the
closing of the resulting sale of the common stock of the Deerfield Sub, or the Cash Adjustment; (ii) accrued and unpaid royalties, or the Royalty Adjustment; and minus (i) the Option
premium of $2 million that was paid at the closing of the transaction, or the Option Premium Adjustment ; (ii) accrued but unpaid taxes; (iii) unpaid Funding Payments;
(iv) loans payable by the Deerfield Sub, or the Loan Balance Adjustment; and (v) any other outstanding liabilities of the Deerfield Sub, or the Adjusted Option Purchase Price.

In
preparation for the closing of the MUSE Transaction and in accordance with the terms of the OPA, we exercised the Option, and on October 21, 2010 we paid an aggregate amount
totaling $27.1 million, which consisted of the Base Option Price of $25 million, less the Option Premium Adjustment of $2 million, plus the Cash Adjustment of $2.8 million
and the Royalty Adjustment of $1.3 million. These payments satisfied all of the financial obligations under the FARA and OPA. As a result, all of the outstanding shares and the
$2.8 million of cash of the Deerfield Sub are owned by us, all of the outstanding loans owed by the Deerfield Sub have been repaid and the security interests in the collateral related to MUSE
and avanafil held by the Deerfield Sub and the Deerfield Affiliates as part of the FARA and OPA were terminated. In December 2010, the Deerfield Sub was dissolved. The payoff of the Deerfield loan
resulted in a loss on the early extinguishment of debt of $6 million which was recognized in the fourth quarter of 2010.

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RESULTS OF OPERATIONS

Executive Overview

For the year ended December 31, 2010, we reported a net loss of $66.1 million or $0.82 net loss per share, as compared to
a net loss of $54.3 million, or $0.75 net loss per share during the same period in 2009. The net loss from continuing operations was $75.4 million, or $0.93 net loss per share and the
net income from discontinued operations was $9.4 million, or $0.11 net income per share. The increased net loss from continuing operations in the year ended December 31, 2010, as
compared to the year ended December 31, 2009, results from the completion of the recognition of the Evamist deferred revenue in 2009, where we recognized $31.4 million in deferred
revenue, partially offset by decreased operating expenses in 2010. The decrease in operating expenses in 2010 as compared to 2009 was primarily attributable to reduced research and development
spending on QNEXA for obesity, partially offset by increased general and administrative expense primarily due to
QNEXA pre-commercialization expenses and an increase in non-cash share-based compensation expense. In addition, in 2009, we had a $2.4 million benefit for income taxes
primarily due to a carryback claim of losses generated in 2008 which allowed us to obtain a refund for Federal income taxes which we paid in 2007.

On
October 28, 2010, we received a Complete Response Letter, or CRL, from the FDA regarding the QNEXA NDA. The FDA issued the CRL to communicate its decision that the NDA could
not be approved in its present form. On January 19, 2011, we held An End-of-Review meeting with the FDA to discuss the items contained in the CRL and the information we
plan to include in the resubmission. In anticipation of the meeting, we had provided a briefing document that included analyses integrating existing non-clinical and clinical data to
provide a comprehensive assessment of the teratogenic potential of topiramate. In addition, we provided several new analyses to demonstrate that QNEXA does not increase the risk for major
cardiovascular events, which analyses included cardiovascular data from our SEQUEL (OB-305) and Sleep Apnea (OB-204) studies. We also provided a synopsis of the final study
report for the SEQUEL study. No new clinical studies were requested in the CRL. At the meeting, presentations were made on the comprehensive assessment of the teratogenic potential of topiramate and
QNEXA, and evidence was presented that the increase in heart rate of 1.6 beats per minute does not increase the risk for major adverse cardiovascular events. The discussion also included elements of
our proposed REMS program for QNEXA. The FDA chose to focus the meeting on the discussion of teratogenic potential for topiramate, specifically the incidence of oral clefts observed in the North
American AED Pregnancy Registry and in the UK Epilepsy and Pregnancy Registry. As part of this meeting the FDA requested that we complete the Feasibility Assessment. Although no other requests for
additional information or studies were made by the FDA at the meeting or in the CRL, there can be no assurance that the FDA will not request or require us to provide additional information or
undertake additional studies in connection with the QNEXA NDA. In the QNEXA studies, which included 15 births from women exposed to QNEXA or topiramate, there were no reports of any congenital
malformations or low birth weight. The timing of the planned resubmission of the QNEXA NDA will be determined after agreement with the FDA is reached on the Feasibility Assessment and whether a
retrospective observational study would be needed. We expect to reach agreement with the FDA, and if deemed feasible, initiate the retrospective observational study on fetal outcomes within the next
two months. It is our goal to resubmit the NDA for QNEXA to the FDA by the end of 2011.

On
October 1, 2010, we entered into a definitive Asset Purchase Agreement with Meda to sell certain rights and assets related to MUSE, transurethral alprostadil, for the treatment
of erectile dysfunction, or the MUSE Transaction. Meda has been our European distributor of MUSE since 2002. The assets sold in the MUSE Transaction include the U.S. and foreign MUSE patents, existing
inventory, and the manufacturing facility located in Lakewood, New Jersey. We retained all of the liabilities associated with the pre-closing operations and products of the MUSE business
and the

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accounts
receivables for pre-closing MUSE sales. The transaction closed on November 5, 2010. The sale of MUSE will allow us to focus on the approval and commercialization of QNEXA
and the development of avanafil. Prior to the closing of the MUSE Transaction, we regained all of the rights to MUSE and avanafil held by Deerfield Management Company, L.P., and affiliates, and
Crown Bank, N.A., or Crown. On October 15, 2010, in preparation for the closing of the MUSE Transaction
and in accordance with the terms of the agreements with Crown, we paid $4.8 million to Crown in satisfaction of all obligations owed to them under these agreements. As a result, the security
interests and Certificate of Deposit held by Crown were terminated in our favor. Under the terms of the MUSE Transaction, we received an upfront payment of $22 million upon the closing and are
eligible to receive an additional $1.5 million based on future sales of MUSE, provided that certain sales milestones are reached. Upon the closing of the MUSE Transaction, Meda is now
responsible for the manufacturing, selling and marketing of MUSE. Meda also assumed all post-closing expenses and liabilities associated with MUSE. We have agreed not to develop,
manufacture or sell any transurethral erectile dysfunction drugs for a period of three years following the closing of the MUSE Transaction. The assets and liabilities and results of operations
associated with MUSE have been reported as discontinued operations for all periods presented.

On
April 3, 2008, we entered into several agreements with Deerfield Management Company, L.P., or Deerfield, a healthcare investment fund, and its affiliates, Deerfield
Private Design Fund L.P. and Deerfield Private Design International, L.P. (collectively, the Deerfield Affiliates). Certain of the agreements were amended and restated on
March 16, 2009, which included the addition of Deerfield PDI Financing L.P. as a Deerfield Affiliate. Under the agreements, Deerfield and its affiliates provided us with
$30 million in funding, consisting of $20 million from the Funding and Royalty Agreement, or FARA, entered into with a newly incorporated subsidiary of Deerfield, or the Deerfield Sub,
and $10 million from the sale of our common stock. We received all of the required payments under the FARA, or the Funding Payments. Under the FARA, we paid royalties on the net sales of MUSE
to the Deerfield Sub. The FARA had a term of 10 years.

We
entered into the Option and Put Agreement with the Deerfield Affiliates and the Deerfield Sub, dated April 3, 2008, and an Amended and Restated Option and Put Agreement dated
March 16, 2009, or the OPA. Pursuant to the OPA, the Deerfield Affiliates granted us an option to purchase all of the outstanding shares of common stock of the Deerfield Sub from the Deerfield
Affiliates, referred to as the Option. Our obligation to pay royalties terminated upon the exercise of the Option. The base consideration for the Option exercise, or Base Option Price, was
$25 million, less $2 million we paid upon closing, as the Option was exercised on or prior to the third anniversary of the execution of the OPA. The aggregate consideration payable by us
upon exercise of the Option, or the Option Purchase Price, was equal to the sum of the Base Option Price,plus: (i) the cash and cash equivalents
held by the Deerfield Sub at the date of the closing of the resulting sale of the common stock of the Deerfield Sub, or the Cash Adjustment; (ii) accrued and unpaid royalties, or the Royalty
Adjustment; andminus(i) the Option premium of $2 million that was paid at the closing of the transaction, or the Option Premium
Adjustment ; (ii) accrued but unpaid taxes; (iii) unpaid Funding Payments; (iv) loans payable by the Deerfield Sub, or the Loan Balance Adjustment; and (v) any other
outstanding liabilities of the Deerfield Sub, or the Adjusted Option Purchase Price.

In
preparation for the closing of the MUSE Transaction and in accordance with the terms of the OPA, we exercised the Option, and on October 21, 2010 we paid an aggregate amount
totaling $27.1 million, which consisted of the Base Option Price of $25 million, less the Option Premium Adjustment of $2 million, plus the Cash Adjustment of $2.8 million
and the Royalty Adjustment of $1.3 million. These payments satisfied all of the financial obligations under the FARA and OPA. As a result, all of the outstanding shares and the
$2.8 million of cash of the Deerfield Sub are owned by us, all of the outstanding loans owed by the Deerfield Sub have been repaid and the security interests in the collateral related to MUSE
and avanafil held by the Deerfield Sub and the Deerfield Affiliates as

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part
of the FARA and OPA were terminated. The payoff of the Deerfield loan resulted in a loss on the early extinguishment of debt of $6 million which was recognized in the fourth quarter of
2010. In December 2010, the Deerfield Sub was dissolved.

In
connection with the sale of Evamist, we received $150 million. The sale of Evamist was a unique transaction. An initial $10 million was paid at closing and
$140 million was paid upon FDA approval of Evamist. These payments were non-refundable and were recorded as deferred revenue and have been recognized as license and other revenue
ratably over a 21.5-month period, from August 1, 2007 to May 15, 2009, which was the remaining term of a license to improvements to the MDTS applicator. No improvements to
the MDTS applicator were made during this period. As compared to revenues from product sales, license and other revenue was significant on a quarterly basis during this 21.5-month period.
Since the $150 million was received and we had no related contingencies, the recognition of revenue and the corresponding reduction of deferred revenue related to the Evamist sale had no impact
on our cash flows from operations during this period. The revenue related to the Evamist transaction recognized in 2009 was $31.4 million.

We
may have continued losses in future years, depending on the timing of our research and development expenditures, and we plan to continue to invest in clinical development of our
current research and investigational drug candidates to bring those potential drugs to market.

Continuing operations



% Change
(Decrease)Years Ended December 31,2010 vs 2009

2009 vs 20082010

2009

2008(In thousands, except percentages)License and other revenue

$


$
31,395

$
83,721


(100
)%

(63
)%


On
March 30, 2007, we announced that we had entered into a definitive agreement with K-V, to transfer our assets and grant a sublicense of our rights under the Evamist
Agreement to K-V, or the K-V Transaction. In August 2008, we assigned all of our rights and obligations under the Evamist license agreement to K-V. The closing of
the K-V Transaction occurred on May 15, 2007 and on July 27, 2007 we received FDA approval of the Evamist NDA. An initial $10 million was paid at closing and
$140 million was paid upon FDA approval. These payments were recorded as deferred revenue and have been recognized as revenue ratably over the 21.5-month term of the Improvement
License, from August 1, 2007 to May 15, 2009. In the years ended December 31, 2010, 2009 and 2008, we recognized $0, $31.4 million and $83.7 million, respectively,
in deferred revenue related to Evamist.



% Change
(Decrease)Years Ended December 31,2010 vs 2009

2009 vs 20082010

2009

2008(In thousands, except percentages)Research and development

$
39,971

$
70,940

$
76,673


(44
)%

(7
)%


Research
and development expenses in the year ended December 31, 2010 decreased $31 million, or 44%, to $40 million, as compared to $70.9 million in the same
period last year. This decrease was the net result of decreased spending for QNEXA for obesity of $28.5 million, decreased spending for avanafil of $3.4 million and a net decrease in
other research and development spending of $278,000, partially offset by $1.2 million in increased spending related to the filing of the Marketing Authorization Application for QNEXA in the
European Union in the year ended December 31, 2010,

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as
compared to the same period last year. In the year ended December 31, 2010, we incurred $7.8 million for services provided by one clinical research organization on the QNEXA
Phase 3 studies, which represented 20% of our research and development expenses for the period. Separately, we incurred another $8.2 million for services provided by another clinical
research organization on the avanafil Phase 3 studies, which represented another 20% of our research and development expenses for the year ended December 31, 2010.

We
anticipate that our research and development expenses in 2011 will decline significantly from costs incurred in 2010. The current remaining contractual obligation for payments to our
primary contract research organization, or CRO, for the Phase 3 avanafil trials totals $3.2 million, which includes amounts in accrued research and clinical expenses as of
December 31, 2010. The current remaining contractual obligation for payments to our primary CRO for the Phase 3 QNEXA for obesity trials and work related to the preparation of the NDA
for avanafil totals $1.8 million, which also includes amounts in accrued research and clinical expenses as of December 31, 2010. There are likely to be additional research and
development expenses related to avanafil and our other investigational drug candidates under development. Our research and development expenses may fluctuate from period to period due to the timing
and scope of our development activities and the results of clinical and pre-clinical studies. Regardless, if we are successful in obtaining FDA regulatory approval for any new
investigational drug candidates being developed through our research and development efforts, we do not expect to recognize revenue from sales of such new drugs, if any, for at least a year or more
due to the length of time required to develop investigational drug candidates into commercially viable products.

Research
and development expenses in the year ended December 31, 2009 decreased $5.7 million, or 7%, to $70.9 million, as compared to $76.7 million in the
year ended December 31, 2008. This decrease was the net result of decreased spending for QNEXA for obesity of $12.2 million, QNEXA for diabetes of $3.3 million, decreased
non-cash share-based compensation expense of $554,000, and a net decrease in other research and development spending of $377,000, partially offset by increased avanafil program spending of
$10.7 million in the year ended December 31, 2009, as compared to the year ended December 31, 2008. In the years ended December 31, 2009 and 2008, we incurred
$19.1 million and $44.7 million, respectively, for services provided by one clinical research organization on the QNEXA Phase 3 studies, which represented 27% and 58% of our
research and development expenses for the period. We incurred another $17 million for services provided by another clinical research organization on the avanafil Phase 3 studies, which
represented 24% of our research and development expenses for the year ended December 31, 2009. In the year ended December 31, 2008, we incurred $6.2 million for clinical supplies
and formulation work performed by our sole-source manufacturer, which represented 8% of our total research and development expenses.



% Change
IncreaseYears Ended December 31,2010 vs 2009

2009 vs 20082010

2009

2008(In thousands, except percentages)General and administrative

$
25,656

$
13,870

$
12,253


85
%

13
%


General
and administrative expenses in the year ended December 31, 2010 increased $11.8 million, or 85% to $25.7 million as compared to the same period in 2009. In
the year ended December 31, 2010, the increase is primarily due to QNEXA pre-commercialization expenses of $9.2 million and net increases of $2.2 million in
non-cash share-based compensation expense and $359,000 in other general and administrative expenses as compared to the year ended December 31, 2009.

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General
and administrative expenses in the year ended December 31, 2009 increased $1.6 million, or 13% to $13.9 million as compared to the same period in 2008. In
the year ended December 31, 2009, the increase is primarily due to QNEXA pre-commercialization expenses of $1.2 million and net increases of $422,000 in other general and
administrative expenses as compared to the year ended December 31, 2008.

On
January 19, 2011, we held an End-of-Review meeting with the FDA to discuss its requests in the CRL for QNEXA and our planned resubmission of the NDA for
QNEXA. As part of the meeting, the FDA has requested that we perform the Feasibility Assessment, which is currently in process. As a result, we may evaluate our spending on the
pre-commercial activities for QNEXA. Ultimately, our general and administrative expenses in 2011 will depend upon the timing and outcome of the FDA's decision on QNEXA, although at this
time we do not anticipate an increase in these expenses as compared to 2010.



Interest and other income, net for the year ended December 31, 2010 was $468,000 as compared to $2 million for the year
ended December 31, 2009. The decrease in interest and other income in the year ended December 31, 2010 as compared to the same period last year was largely due to lower cash balances and
lower interest rates, year-over-year, on our cash, cash equivalents and available-for-sale securities balances resulting from the policy to invest
primarily in U.S. government securities, which earn lower rates of interest. In 2009, we recognized a net realized gain of $1.1 million related to the sale of securities.

Interest
and other income, net for the year ended December 31, 2009 was $2 million as compared to $4.4 million for the year ended December 31, 2008. The
decrease in interest income in the year ended December 31, 2009 as compared to the same period last year was largely due to lower interest rates, year-over-year, on our
cash, cash equivalents and available-for-sale securities balances resulting from a change in policy to invest primarily in U.S. government securities, which earn lower rates of
interest. As mentioned above, in 2009, we recognized a net realized gain of $1.1 million related to the sale of securities.

Interest
expense for the year ended December 31, 2010 was $4.3 million as compared to $3.7 million during the same period last year. The net increase in interest
expense in the year ended December 31, 2010 as compared to the same period in 2009 is primarily due to the higher Deerfield loan balances in 2010.

Interest
expense for the year ended December 31, 2009 was $3.7 million as compared to $659,000 during the same period last year. The net increase in interest expense in the
year ended December 31, 2009 as compared to the same period in 2008 is primarily due to increased interest expense on the Deerfield financing.

We
recognized an other-than-temporary loss on impaired securities of $0, $654,000 and $7.7 million for the years ended December 31, 2010, 2009 and
2008, respectively. The other-than-temporary loss on impaired available-for-sale securities in the year ended December 31, 2008 included a
$2.4 million loss related to our investment in corporate bonds issued by Lehman Brothers Holdings Inc., or Lehman (or their respective subsidiaries, as appropriate). On
September 15, 2008, Lehman filed for bankruptcy protection under Chapter 11 of the U.S. Bankruptcy Code. Accordingly, recovery of the full value of our Lehman bonds, if any, was deemed
remote and we recognized an other-than-temporary impairment loss in the third quarter of 2008. The $7.7 million other-than-temporary loss
primarily represented unrealized impairment losses recorded on securities that were classified as available-for-sale securities on our consolidated balance sheet as of
December 31, 2008. The majority of the other-than-temporary losses on impaired securities were

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recorded
on securities obtained in late 2007 through the redemption-in-kind distribution from the Bank of America Columbia Strategic Cash Portfolio.

We
recognized a $6 million loss on the early extinguishment of debt in connection with the payoff of the Deerfield loan in the year ended December 31, 2010.



In the year ended December 31, 2010, we recorded a provision for income taxes of $9,000. Our income tax return for the year
ended December 31, 2007 is currently under examination by the California Franchise Tax Board. Based on the progress of the audit to date, we believe adjustments may be made in early years that
will reduce tax attributes available to offset tax due in 2007. Therefore, we increased our unrecognized tax benefits to $7,000 for the year ended December 31, 2010. We recognize interest and
penalties accrued on any unrecognized tax benefits as a component of our provision for income taxes. During the year ended December 31, 2010, $1,000 of interest on the unrecognized tax benefits
was recorded.

We
recorded a benefit for income taxes for the year ended December 31, 2009 of $2.4 million primarily due to our filing a carryback claim of losses generated in 2008,
pursuant to the IRS Revenue Procedure 2009-52. The Revenue Procedure was issued in the fourth quarter of 2009 and allows losses generated in 2008 or 2009 to be carried back for up to five
years. The provision for income taxes for the year ended December 31, 2008 was $7,000. The provision for income taxes for the year ended December 31, 2008 relates to state income taxes.

Discontinued operations



% Change
Increase/(Decrease)Years Ended December 31,2010 vs 2009

2009 vs 20082010

2009

2008(In thousands, except percentages)United States product, net

$
9,626

$
15,836

$
14,974


(39
)%

6
%International product


2,425


2,347


3,076


3
%

(24
)%License and other revenue


1,260


463


462


172
%

0
%Total revenues

$
13,311

$
18,646

$
18,512


(29
)%

1
%


Product
revenues for the year ended December 31, 2010 and December 31, 2009 totaled $12.1 million and $18.2 million, respectively. U.S. product revenues in
the year ended December 31, 2010 decreased as compared to the same period in 2009. The decrease in U.S. product revenues as well as the increase in license and other revenue as compared to the
year ended December 31, 2009 was primarily due to the sale of MUSE on November 5, 2010. In the fourth quarter of 2010, we recognized all of the remaining deferred license revenue from
our international distributors.

International
product revenues increased in the year ended December 31, 2010, as compared to the year ended December 31, 2009, primarily due to the timing of customer
orders and a slight reduction in the international pricing reserve in the year ended December 31, 2010.

Worldwide
product revenues from the sales of MUSE were $18.2 million in 2009, an increase of $133,000, or 1%, from the worldwide sales of MUSE in 2008. U.S. product revenues
increased in 2009 as compared to the prior year period primarily due to higher prices for MUSE and a modest increase in units shipped.

The
decrease in international revenue in 2009 as compared to 2008 was principally due to decreases in units shipped based upon the timing of orders from our international partners and to
a

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reduction
in transfer prices resulting from the difference in currency exchange rates. Also contributing to the reduction in international revenues in 2009 was the allowance of $116,000 for certain
out-of-specification production identified in the first quarter of 2009.



% Change
Increase/(Decrease)Years Ended December 31,2010 vs 2009

2009 vs 20082010

2009

2008(In thousands, except percentages)Cost of goods sold and manufacturing

$
9,785

$
11,950

$
11,956


(18
)%

0
%


Cost
of goods sold and manufacturing, or cost of goods sold, in the year ended December 31, 2010 decreased $2.2 million, or 18%, to $9.8 million, as compared to
$12 million in the year ended December 31, 2009. This decrease is primarily due to a decrease in product shipped in the year ended December 31, 2010 as compared to the year ended
December 31, 2009 due to the sale of MUSE in the fourth quarter 2010.

Cost
of goods sold was $12 million in the years ended December 31, 2009 and 2008. While cost of goods sold remained constant in 2009, there was a nominal reduction in units
shipped as compared to 2008. Costs of goods sold for 2009 included an increase in quality control related expenses of $413,000 and an increase in inventory reserves of $487,000 for raw material that
exceeded its shelf life, which were partially offset by recoveries from the supplier and insurance proceeds totaling $409,000 for the loss on non-conformance of raw materials that occurred
in 2009. In 2008, we incurred inventory disposal costs of $444,000 due to the non-conformance of certain raw materials.



% Change
Increase/(Decrease)Years Ended December 31,2010 vs 2009

2009 vs 20082010

2009

2008(In thousands, except percentages)Research and development

$
2,304

$
135

$
323


1,607
%

(58
)%


Research
and development expenses increased $2.2 million in the year ended December 31, 2010, or 1,607%, to $2.3 million, as compared to $135,000 for the year ended
December 31, 2009. This increase is primarily due to the write-off of $2.2 million in MUSE PDUFA fee refund receivables from the FDA, which were determined to be
uncollectible in the year ended December 31, 2010. Research and development expenses decreased $188,000 in the year ended December 31, 2009, or 58%, to $135,000, as compared to $323,000
for the year ended December 31, 2008.



% Change
Increase/(Decrease)Years Ended December 31,2010 vs 2009

2009 vs 20082010

2009

2008(In thousands, except percentages)Selling, general and administrative

$
5,124

$
7,163

$
6,651


(28
)%

8
%


Selling,
general and administrative expenses in the year ended December 31, 2010 decreased $2 million, or 28%, to $5.1 million, as compared to the year ended
December 31, 2009. In the year ended December 31, 2010, the decrease is primarily due to the sale of MUSE to Meda on November 5, 2010, which resulted in decreased marketing
expenses of $974,000, sales expenses of $828,000 and other net decreases in selling, general and administrative expenses of $238,000 as compared to the year ended December 31, 2009.

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Selling, general and administrative expenses in the year ended December 31, 2009 increased $512,000, or 8%, to $7.2 million as compared to the year
ended December 31, 2008. In the year ended December 31, 2009, the increase is primarily due to incremental increases of $714,000 in sales expenses (including $299,000 in MUSE related
wholesaler distribution fees and increased compensation expense of $290,000), partially offset by a $201,000 incremental decrease in marketing expenses as compared to the year ended
December 31, 2008.



Interest and other income, net for the years ended December 31, 2010, 2009 and 2008 was $10,000, $21,000 and $33,000,
respectively. Interest income in all periods is a result of fluctuations in investment yields on the Crown Bank restricted cash certificate of deposit.

Interest
expense for the years ended December 31, 2010, 2009 and 2008 was $384,000, $386,000 and $405,000, respectively. The net decrease in interest expense from year to year is
primarily due to principal paydowns of the outstanding balance on the Crown Bank loan. The Crown Bank loan was paid in full in connection with the sale of MUSE to Meda in the fourth quarter 2010.



We recognized a $13.7 million gain in the fourth quarter of 2010 due to the sale of MUSE to Meda.



Provision for income taxes for the year ended December 31, 2010 was $29,000. The provision for income taxes for the year ended
December 31, 2010 relates to state income taxes.

We
recorded a benefit for income taxes for the year ended December 31, 2009 of $61,000 primarily due to our filing a carryback claim of losses generated in 2008, pursuant to the
IRS Revenue Procedure 2009-52. The Revenue Procedure was issued in the fourth quarter of 2009 and allows losses generated in 2008 or 2009 to be carried back for up to five years.

Provision
for income taxes for the year ended December 31, 2008 was $10,000. The provision for income taxes for the year ended December 31, 2008 relates to state income
taxes.

Liquidity and Capital Resources

Continuing Operations

Cash.Unrestricted cash, cash equivalents and available-for-sale securities totaled $139.2 million at
December 31, 2010, as compared to $206.8 million at December 31, 2009. The decrease in cash, cash equivalents and available-for-sale securities of
$67.6 million is primarily the result of cash used for operating and financing activities. Included in these amounts is $3.9 million in net proceeds from common stock option exercises
and ESPP purchases.

Since
inception, we have financed operations primarily from the issuance of equity securities. Through December 31, 2010, we raised $407.6 million from financing
activities, received $150 million from the sale of Evamist and had an accumulated deficit of $300.1 million at December 31, 2010.

At
December 31, 2010, we had $37.2 million in cash and cash equivalents and $102 million in available-for-sale securities. We invest our
excess cash balances in money market and marketable securities, primarily U.S. Treasury securities and debt securities of U.S. government agencies, corporate debt securities and asset-backed
securities, in accordance with our investment policy. At December 31, 2010, all of our cash equivalents and available-for-sale securities were invested in either U.S.
government securities or money market funds that invest only in U.S. Treasury securities. The

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investment
policy has the primary investment objectives of preservation of principal; however, there may be times when certain of the securities in our portfolio will fall below the credit ratings
required in the policy. If those securities are downgraded or impaired, we would experience realized or unrealized losses in the value of our portfolio, which would have an adverse effect on our
results of operations, liquidity and financial condition.

Investment
securities are exposed to various risks, such as interest rate, market and credit. Due to the level of risk associated with certain investment securities and the level of
uncertainty related to changes in the value of investment securities, it is possible that changes in these risk factors in the near term could have an adverse material impact on our results of
operations or shareholders' equity.

Liabilities.Total liabilities were $12.3 million at December 31, 2010; $31 million lower than at December 31,
2009. The
change in total liabilities includes a $15.3 million decrease in notes payable due to the pay off of the Deerfield loan in the fourth quarter 2010.

Operating Activities.Our operating activities used $68 million, $93.1 million and $64.3 million during the
years ended December 31, 2010, 2009 and 2008, respectively. During the year ended December 31, 2010, our net operating loss of $75.4 million was offset by $6.4 million in
non-cash share-based compensation expense, $6 million in loss on early extinguishment of the Deerfield loan, $138,000 in depreciation expense, a $2.7 million decrease in
prepaid expenses and other assets, a $521,000 increase in accrued and other liabilities and a $477,000 increase in accrued employee compensation and benefits. These positive cash flows to our net
operating loss were in turn offset by a $3.2 million increase in inventories due to the purchase of QNEXA raw material inventory and a $5.7 million decrease in accounts payable.

During
the year ended December 31, 2009, our net operating loss of $53.4 million was offset by $3.9 million in non-cash share-based compensation expense,
a $654,000 other-than-temporary loss on impaired securities, a $737,000 increase in accrued employee compensation and benefits and a $1.3 million increase in accrued and
other liabilities, primarily due to an increase in accrued interest payable on the Deerfield loan. These positive cash flows to our net operating loss were in turn offset by the recognition of
$31.4 million in revenue due to the amortization of deferred license revenue from the receipt of $150 million from K-V for the sale of Evamist, a $7.3 million decrease
in accounts payable due to the timing of payments, a $2.6 million increase in prepaid expenses (primarily due to a $2.3 million receivable for continuing operations from the IRS related
to carryback claims on our amended 2007 federal income tax return), a $1.1 million net realized gain on other-than temporarily-impaired securities and a
$4 million decrease in accrued research and clinical expenses, primarily due to the winding down of the QNEXA for obesity development efforts.

During
the year ended December 31, 2008, our net operating loss of $9.1 million was offset by a $7.7 million other-than-temporary loss on
impaired securities, $3.9 million in non-cash share based compensation expense, a $5 million increase in accrued research and clinical expenses primarily due to the QNEXA for
obesity development effort, a $8.2 million increase in accounts payable due to the timing of payments, a $2.1 million decrease in prepaid and other assets, a $553,000 increase in accrued
employee compensation and benefits and a $979,000 loss on investments. These positive cash flows to our net operating loss were in turn offset by the recognition of $83.7 million in revenue due
to the amortization of deferred license revenue from the receipt of $150 million from K-V for the sale of Evamist.

Investing Activities.Our investing activities provided $64.9 million, used $43.3 million and provided $10.1 million in
cash
during the years ended December 31, 2010, 2009 and 2008, respectively. The fluctuations from period to period are due primarily to the timing of purchases, sales and maturity of investment
securities.

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Financing Activities.Financing activities used cash of $19.1 million and provided cash of $114.3 million and
$82.1 million
during the years ended December 31, 2010, 2009 and 2008, respectively. In 2010, cash used in financing activities included $23 million to payoff the Deerfield loan (which includes a
$6 million loss on early extinguishment of the loan). This amount was partially offset by $3.6 million in net proceeds from the exercise of stock options and $304,000 from ESPP
purchases. In 2009, the cash provided by financing activities included $102.7 million in net proceeds from the underwritten public offering of our common stock, $10 million in cash from
the Deerfield financing and $2.7 million from stock option exercises and ESPP purchases, partially offset by $1 million in principal payments under our notes payable. In 2008, the cash
provided by financing activities included cash receipts from the Deerfield financing including $9.7 million in net proceeds from the issuance of common stock and $7.6 million from the
Deerfield FARA, net proceeds of $63.7 million from the registered direct offering of our common stock, $2.2 million in proceeds from the exercise of stock options and $275,000 from the
sale of common stock through our ESPP partially offset by $1.3 million in principal payments under our notes payable.

Discontinued Operations

Accounts receivable (net of allowance for doubtful accounts) at December 31, 2010 was $6,000, as compared to $7.3 million
at December 31, 2009. As of February 18, 2011, we had collected 100% of the accounts receivable outstanding at December 31, 2010.

Cash
provided by operating activities in the year ended December 31, 2010 was $2.2 million. In the year ended December 31, 2010, the $9.4 million net income
was offset by a $13.7 million gain on the sale of MUSE. These offsets to our net operating income were in turn offset by positive cash flows including a $7.3 million decrease in accounts
receivable (due to the collection of the December 2009 outstanding receivables), $915,000 in depreciation expense and $970,000 in non-cash share-based compensation expense.

Cash
used for operating activities in the year ended December 31, 2009 was $3 million. In the year ended December 31, 2009, the $906,000 net loss was partially
offset by $1.1 million in depreciation expense, $864,000 in non-cash share-based compensation expense, and a $487,000 provision for obsolete inventory due to alprostadil that has
exceeded its shelf life. These positive cash flows to our net operating loss were in turn offset by a $3.1 million increase in accounts receivable (due to timing of the December 2009
buy-in as compared to the prior year) and a $1.4 million decrease in accounts payable, primarily due to the timing of payments.

Cash
provided by operating activities in the year ended December 31, 2008 was $767,000. Included in this amount is a $1.2 million increase in accounts payable, primarily
due to the timing of payments,
$1.1 million in depreciation expense and $769,000 in non-cash share-based compensation expense.

Our
investing activities provided $21.5 million and used $171,000 and $264,000 in cash during the years ended December 31, 2010, 2009 and 2008, respectively. In the year
ended December 31, 2010, cash provided by investing activities included $21.6 million in cash proceeds from the sale of MUSE to Meda. Also included in these amounts in each year are
purchases of property and equipment. Financing activities used $4.9 million, $145,000 and $130,000 during the years ended December 31, 2010, 2009 and 2008, respectively. These amounts
represent principal payments made under our Crown Bank loan in all periods. In the year ended December 31, 2010, we paid off the loan to Crown Bank.

On
December 22, 2005, we purchased from our landlord our principal manufacturing facility, which was previously leased, for $7.1 million. The purchase price was funded in
part by $3.3 million, which was being held by the landlord as cash collateral for renovations to the facility upon the termination of the lease and the remainder with cash. On January 4,
2006, we obtained a $5.4 million loan from Crown Bank, N.A., or Crown. The land and buildings, among other assets, located at our principal manufacturing facility and a $700,000 Certificate of
Deposit held by Crown served as

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collateral
for the Crown loan. The loan was payable over a 10-year term. The interest rate was adjusted annually to a fixed rate for the year equal to the prime rate plus 1%, with a floor
of 7.5%. Principal and interest were payable monthly based upon a 20-year amortization schedule and were adjusted annually at the time of the interest rate reset. All remaining principal
was due on February 1, 2016. The interest rate was 7.5% for 2010 and 2009. At December 31, 2009 and 2008, the manufacturing facility and restricted cash are reported as assets of
discontinued operations on the consolidated balance sheets. On October 15, 2010, in preparation for the closing of the MUSE Transaction and in accordance with the terms of the agreements with
Crown, we paid $4.8 million to Crown in satisfaction of all obligations owed to them under these agreements. As a result, the security interests and Certificate of Deposit held by Crown were
terminated in our favor.

On
October 1, 2010, we entered into a definitive Asset Purchase Agreement with Meda, to sell certain rights and assets related to MUSE, transurethral alprostadil, for the
treatment of erectile dysfunction, or the MUSE Transaction. Meda has been our European distributor of MUSE since 2002. The assets sold in the MUSE Transaction include the U.S. and foreign MUSE
patents, existing inventory, and the manufacturing facility located in Lakewood, New Jersey. We retained all of the liabilities associated with the pre-closing operations and products of
the MUSE business and the accounts receivables for pre-closing MUSE sales. The transaction closed on November 5, 2010. Prior to the closing of the MUSE Transaction we regained all
of the rights to MUSE and avanafil held by Deerfield Management Company, L.P., and affiliates, and Crown Bank, N.A.

Under
the terms of the MUSE Transaction, we received an upfront payment of $22 million upon the closing and are eligible to receive an additional $1.5 million based on
future sales of MUSE, provided that certain sales milestones are reached. Meda is now responsible for the manufacturing, selling and
marketing of MUSE. Meda also assumed all post-closing expenses and liabilities associated with MUSE. We have agreed not to develop, manufacture or sell any transurethral erectile
dysfunction drugs for a period of three years following the closing of the MUSE Transaction. The assets and liabilities and results of operations associated with MUSE have been reported as
discontinued operations for all periods presented.

On
April 3, 2008, we entered into several agreements with Deerfield Management Company, L.P., or Deerfield, a healthcare investment fund, and its affiliates, Deerfield
Private Design Fund L.P. and Deerfield Private Design International, L.P. (collectively, the Deerfield Affiliates). Certain of the agreements were amended and restated on
March 16, 2009, which included the addition of Deerfield PDI Financing L.P. as a Deerfield Affiliate. Under the agreements, Deerfield and its affiliates provided us with
$30 million in funding, consisting of $20 million from the Funding and Royalty Agreement, or FARA, entered into with a newly incorporated subsidiary of Deerfield, or the Deerfield Sub,
and $10 million from the sale of our common stock. We received all of the required payments under the FARA, or the Funding Payments. Under the FARA, we paid royalties on the net sales of MUSE
to the Deerfield Sub. The FARA had a term of 10 years.

We
entered into the Option and Put Agreement with the Deerfield Affiliates and the Deerfield Sub, dated April 3, 2008, and an Amended and Restated Option and Put Agreement dated
March 16, 2009, or the OPA. Pursuant to the OPA, the Deerfield Affiliates granted us an option to purchase all of the outstanding shares of common stock of the Deerfield Sub from the Deerfield
Affiliates, referred to as the Option. Our obligation to pay royalties terminated upon the exercise of the Option. The base consideration for the Option exercise, or Base Option Price, was
$25 million, less $2 million we paid upon closing, as the Option was exercised on or prior to the third anniversary of the execution of the OPA. The aggregate consideration payable by us
upon exercise of the Option, or the Option Purchase Price, was equal to the sum of the Base Option Price,plus: (i) the cash and cash equivalents
held by the Deerfield Sub at the date of the closing of the resulting sale of the common stock of the Deerfield Sub, or the Cash Adjustment; (ii) accrued and unpaid royalties, or the Royalty
Adjustment; andminus(i) the Option premium of $2 million that was paid at the closing of the transaction, or the Option

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Premium
Adjustment ; (ii) accrued but unpaid taxes; (iii) unpaid Funding Payments; (iv) loans payable by the Deerfield Sub, or the Loan Balance Adjustment; and (v) any
other outstanding liabilities of the Deerfield Sub, or the Adjusted Option Purchase Price.

On
October 21, 2010, in preparation for the closing of the MUSE transaction, we exercised the Option under the Deerfield OPA, and we paid an aggregate amount totaling
$27.1 million, which consisted of the Base Option Price of $25 million, less the Option Premium Adjustment of $2 million, plus the addition of the Cash Adjustment of
$2.8 million and the Royalty Adjustment of $1.3 million. These payments satisfied all of the financial obligations under the FARA and OPA. As a result, all of the outstanding shares and
the $2.8 million of cash of the Deerfield Sub are owned by us, all of the outstanding loans owed by the Deerfield Sub have been repaid and the security interests in the collateral related to
MUSE and avanafil held by the Deerfield Sub and the Deerfield Affiliates as part of the FARA and OPA were terminated. In December 2010, the Deerfield Sub was dissolved.

On
August 6, 2008, we sold $65 million of our common stock in a registered direct offering. Under the terms of the financing, we sold 8,365,508 shares of our common stock
at a price of $7.77 per share. On August 5, 2008, the Company filed a prospectus supplement with the SEC relating to this registered direct offering under the existing shelf Registration
Statement (File Number 333-150649).

On
September 17, 2009, we entered into an underwriting agreement, or the Underwriting Agreement, with J.P. Morgan Securities Inc., as representative of the several
underwriters named therein, or the Underwriters, relating to the public offering and sale of 9,000,000 shares of our common stock. Pursuant to the Underwriting Agreement, the Underwriters agreed to
purchase, subject to customary closing conditions, 9,000,000 shares of our common stock. We also granted the Underwriters a 30-day option to purchase up to 1,350,000 additional shares of
common stock on the same terms and conditions as set forth above to cover over-allotments, which the Underwriters exercised in full. The 10,350,000 shares were sold at a price to the
public of $10.50 per share which resulted in approximately $108.7 million in gross proceeds before deducting underwriting discounts and commissions and other offering expenses. The transaction
closed on September 23, 2009. The offering was made pursuant to the effective shelf registration statement on Form S-3 (Registration No. 333-161948),
including the prospectus dated September 16, 2009 contained therein, as supplemented.

On
February 16, 2010, we filed a Form S-8 (File Number 333-164921) with the SEC registering 1,000,000 shares of common stock, par value
$0.001 per share, under the 2001 Stock Option Plan, as amended.

On
July 14, 2010, we filed a Form S-8 (File Number 333-168106) with the SEC registering 16,615,199 shares of common stock, par value $0.001
per share, to be issued pursuant to the 2010 Equity Incentive Plan, and registering 400,000 shares of common stock, par value $0.001 per share, to be issued pursuant to the Stand-Alone Stock Option
Agreement with Michael P. Miller.

The
funding necessary to execute our business strategies is subject to numerous uncertainties, which may adversely affect our liquidity and capital resources. Completion of clinical
trials and approval by the FDA may take several years or more, but the length of time generally varies substantially according to the type, complexity, novelty and intended use of an investigational
drug candidate. It is also important to note that if an investigational drug candidate is identified, the further development of that candidate can be halted or abandoned at any time due to a number
of factors. These factors include, but are not limited to, funding constraints, lack of efficacy or safety or change in market demand.

The
nature and efforts required to develop our investigational drug candidates into commercially viable drugs include research to identify a clinical candidate, pre-clinical
development, clinical testing, FDA approval and commercialization. This process is very costly and can take in excess of 10 years to complete for each investigational drug candidate. The
duration and the cost of clinical trials may vary

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significantly
over the life of a project as a result of matters arising during the clinical studies, including, among others, the following:



For
each of our investigational drug candidate development programs, we periodically assess the scientific progress and the merits of the programs to determine if continued research and
development is economically viable. Certain of our programs were terminated due to the lack of scientific progress and lack of prospects for ultimate commercialization. As such, the ultimate timeline
and costs to commercialize a drug cannot be accurately estimated.

Our
investigational drug candidates have not yet achieved FDA regulatory approval, which is required before we can market them as therapeutic products. In order to achieve regulatory
approval, the FDA must conclude that our clinical data establish substantial evidence of safety and efficacy. The results from pre-clinical testing and early clinical trials may not be
predictive of results in later clinical trials. It is possible for a candidate to show promising results in early clinical trials, but subsequently fail to demonstrate safety and efficacy data
necessary to obtain regulatory approvals.

As
a result of the uncertainties discussed above, among others, the duration and completion of our investigational drug candidate development programs are difficult to estimate and are
subject to considerable variation. Our inability to complete our research and investigational drug candidate development programs in a timely manner or our failure to enter into collaborative
agreements, when appropriate, could significantly increase our capital requirements and could adversely impact our liquidity. These uncertainties could force us to seek additional, external sources of
financing from time to time in order to continue with our business strategy. Our inability to raise capital, or to do so on terms reasonably acceptable to us, would jeopardize the future success of
our business.

We
may also be required to make further substantial expenditures if unforeseen difficulties arise in other areas of our business. In particular, our future capital and additional funding
requirements will depend upon or be impacted by numerous factors, including:



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We
anticipate that our existing capital resources combined with anticipated future cash flows will be sufficient to support our operating needs at least into 2012. However, we anticipate
that we may require additional funding to continue our research and investigational drug candidate development programs, to conduct pre-clinical studies and trials, to fund operating
expenses, to pursue regulatory approvals for our investigational drug candidates, to finance the costs involved in filing and prosecuting patent applications and enforcing or defending our patent
claims, if any, and we may require additional funding to establish additional or new manufacturing and marketing capabilities in the future, to manufacture quantities of our investigational drug
candidates for approval and commercialization, or to launch a product. In particular, we expect to make other substantial payments to the inventor of QNEXA pending approval by the FDA and to MTPC, in
accordance with our agreements with MTPC in connection with the licensing of avanafil. These payments are based on certain development, regulatory and sales milestones. In addition, we are required to
make royalty payments on any future product sales. Similar to the transaction with Evamist, we may consider selling or licensing any of our investigational drug candidates in development in order to
raise additional funding. We may seek to access the public or private equity markets at any time. The sale of additional equity securities would result in additional dilution to our stockholders. We
may also seek additional funding through strategic alliances, acquisitions of companies with cash balances and other financing mechanisms. We cannot assure you that adequate funding will be available
on terms acceptable to us, if at all. If adequate funds are not available, we may be required to curtail significantly one or more of our investigational drug

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candidate
development programs or obtain funds through arrangements with collaborators or others. This may require us to relinquish rights to certain of our technologies or investigational drug
candidates and to pay royalties on future product sales. To the extent that we are unable to obtain third party funding for such expenses, we expect that increased expenses may result in future losses
from operations. We are continually evaluating our existing portfolio and we may choose to divest or sell one or more of our investigational drug candidates at any time. We cannot assure you that we
will successfully develop our products under development or that our products, if approved for sale, will generate revenues sufficient to enable us to earn a profit.

Contractual Obligations

The following table summarizes our contractual obligations at December 31, 2010 excluding amounts already recorded on our
consolidated balance sheet as accounts payable, and the effect such obligations are expected to have on our liquidity and cash flow in future fiscal years. This table includes our enforceable and
legally binding obligations and future commitments, as well as obligations related to all contracts that we are likely to continue, regardless of the fact that they were cancelable as of
December 31, 2010. These do not include milestones and assumes non-termination of agreements. These obligations, commitments and supporting arrangements represent payments based on
current operating plans, which are subject to change:

Payments Due by PeriodContractual obligations

Total

2011

2012-2014

2015-2016

Thereafter(in thousands)Continuing Operations:Operating leases

$
1,091

$
685

$
406

$


$
Other agreements


6,605


5,085


1,520





Clinical trials


6,699


6,699








Total contractual obligations

$
14,395

$
12,469

$
1,926

$


$





In November 2006, we entered into a 30-month lease for our corporate headquarters located in Mountain View, California. The
lease commenced on February 1, 2007. The base monthly rent was set at $1.85 per square foot, or $26,000 per month. The lease expired on July 31, 2009. On December 16, 2008, we
entered into a first amendment to this lease. Under the terms of the amended lease, we continue to lease the office space for our corporate headquarters for a two-year period commencing on
August 1, 2009 and expiring on July 31, 2011. The base monthly rent was set at $1.64 per square foot, or $23,000 per month. The amended lease allowed us one option to extend the term of
the lease for one year from the expiration of the lease. On November 12, 2009, we entered into a second amendment to this lease. The second amendment commenced on January 1, 2010,
expires on July 31, 2011 and expands the leased space. The base rent for the expansion space was set at $2.25 per square foot, or $8,500 per month. The option to extend the term of the amended
lease for one year from the expiration of the lease applies to this expansion space as well. In December 2010, we entered into a third amendment to this lease. The third amendment extended the lease
term for the original premises and the expansion space for a period of twelve months commencing August 1, 2011 and terminating July 31, 2012. Under the third amendment, the base rent for
the original space will be set at $1.69 per square foot, or $24,000 per month and the base rent for the expansion space will be set at $2.31 per square foot, or $8,700 per month. The amended lease
allows us one additional option to extend the term of the lease for one year from the expiration of the lease. The option to extend the term of the amended lease for one year from the expiration of
the lease applies to the expansion space as well.

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Purchase obligations consist of agreements to purchase goods or services that are enforceable and legally binding on us and that
specify all significant terms, including: fixed or minimum quantities to be purchased; fixed, minimum or variable price provisions; and the approximate timing of the transaction. These include
obligations for research and development, general and administrative services, and media/market research contracts, as well as obligations related to those contracts that we are likely to continue,
regardless of the fact that they were cancelable as of December 31, 2010.

We
have remaining commitments under various general and administrative services agreements totaling $3 million at December 31, 2010, including $1.5 million related
to Leland F. Wilson's Employment Agreement (see paragraph below). We have also entered into various agreements with research consultants and other contractors to perform regulatory services, drug
research and testing and, at December 31 2010, our remaining commitment under these agreements totaled $3.6 million.

On
December 19, 2007, the Compensation Committee of the Board of Directors of the Company approved an employment agreement, or the Employment Agreement, with Leland F. Wilson, the
Company's Chief Executive Officer. The Employment Agreement includes salary, incentive compensation, retirement benefits and length of employment, among other items, as agreed to with
Mr. Wilson. The Employment Agreement had an initial term of two years commencing on the effective date, June 1, 2007, or the Effective Date. On January 23, 2009, the Compensation
Committee approved an amendment to the Employment Agreement, or the Amendment, which amends the Employment Agreement. Pursuant to the Amendment, the initial term of the Employment Agreement was
increased from two to three years commencing on June 1, 2007 and other relevant dates were also extended to reflect the three-year initial term. On January 21, 2011, the
Compensation Committee approved the second amendment to Mr. Wilson's Employment Agreement. Pursuant to the second amendment, the initial term of the Employment Agreement is increased to four
years commencing on June 1, 2007.



We have entered into various agreements with clinical consultants, investigators, clinical suppliers and clinical research
organizations to perform clinical trial management and clinical studies on our behalf and, at December 31, 2010, our remaining commitment under these agreements totaled $6.7 million,
which includes nearly all of the accrued research and clinical expenses of $2.6 million in the consolidated balance sheet as of December 31, 2010. We make payments to these providers
based upon the number of patients enrolled and the length of their participation in the trials. These obligations, however, are contingent on future events, e.g. the rate of patient accrual in
our clinical trials. This amount represents the remaining contractual amounts due under various contracts, although all of these contracts could be cancelled by us, in which case we would only be
liable to the vendors for work performed to the date of cancellation.



We have entered into development, license and supply agreements that contain provisions for payments upon completion of certain
development, regulatory and sales milestones. Due to the uncertainty concerning when and if these milestones may be completed or other payments are due, we have not included these potential future
obligations in the above table.



In January 2001, we entered into an exclusive development, license and supply agreement with Tanabe Seiyaku Co., Ltd., or
Tanabe, now Mitsubishi Tanabe Pharma Corporation, or MTPC, and hereinafter collectively referred to as MTPC, for the development and commercialization of avanafil, a PDE5 inhibitor compound for the
oral and local treatment of male and female sexual dysfunction.

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Under
the terms of the agreement, MTPC agreed to grant an exclusive license to us for products containing avanafil outside of Japan, North Korea, South Korea, China, Taiwan, Singapore, Indonesia,
Malaysia, Thailand, Vietnam and the Philippines. We agreed to grant MTPC an exclusive, royalty-free license within those countries for oral products that we develop containing avanafil. In
addition, we agreed to grant MTPC an exclusive option to obtain an exclusive, royalty-bearing license within those countries for non-oral products that we develop containing avanafil. MTPC
agreed to manufacture and supply us with avanafil for use in clinical trials, which will be our primary responsibility.

We
have paid upfront licensing fees of $5 million to MTPC and have agreed to make additional payments upon the completion of certain development, regulatory and sales milestones.
During the first quarter of 2004, we initiated a Phase 2 clinical trial with avanafil, which triggered one of the clinical development milestone criteria noted above. In 2006, we paid MTPC
$2 million in connection with this milestone. We have further agreed to pay royalties on net sales of products containing avanafil. No payments were made under this agreement with MTPC in the
years ended December 31, 2007 and 2008; however, we paid MTPC $4 million in January 2009 following the enrollment in December 2008 of the first patient in the first Phase 3
clinical studies. We expect to make other substantial payments to MTPC in accordance with our agreements with MTPC as we continue to develop and, if approved for sale, commercialize avanafil for the
oral treatment of male sexual dysfunction. Such potential future milestone payments total $15 million in the aggregate and include payments upon: the first submission of an NDA, expected in the
second quarter of 2011; obtainment of the first regulatory approval in the U.S. and any major European country; and achievement of $250 million or more in calendar year sales.

The
term of the MTPC agreement is based on a country-by-country and on a product-by-product basis. The term shall continue until the later
of (i) 10 years after the date of the first sale for a particular product, or (ii) the expiration of the last-to-expire patents within the MTPC patents
covering such product in such country. In the event that our product is deemed to be (i) insufficiently effective or insufficiently safe relative to other PDE5 inhibitor compounds based on
published information, or (ii) not economically feasible to develop due to unforeseen regulatory hurdles or costs as measured by standards common in the pharmaceutical industry for this type of
product, we have the right to terminate the agreement with MTPC with respect to such product.



On October 16, 2001, we entered into an assignment agreement, or the Assignment Agreement, with Thomas Najarian, M.D. for a
combination of pharmaceutical agents for the treatment of obesity and other disorders, or the Combination Therapy, that has since been the focus of our investigational drug candidate development
program for QNEXA for the treatment of obesity, obstructive sleep apnea and diabetes. The Combination Therapy and all related patent applications, or the Patents, were transferred to us with worldwide
rights to develop and commercialize the Combination Therapy and exploit the Patents. Pursuant to the Assignment Agreement, we have paid a total of $220,000 to Dr. Najarian through
December 31, 2010 and have issued him options to purchase 40,000 shares of our common stock. We are obligated under the terms of the Assignment Agreement to make a milestone payment of
$1 million and issue an option to purchase 20,000 shares of our common stock to Dr. Najarian upon marketing approval by the FDA of a product for the treatment of obesity that is based
upon the Combination Therapy and Patents. The Assignment Agreement will require us to pay royalties on worldwide net sales of a product for the treatment of obesity that is based upon the Combination
Therapy and Patents until the last-to-expire of the assigned Patents. To the extent that we decide not to commercially exploit the Patents, the Assignment Agreement will
terminate and the Combination Therapy and Patents will be assigned back to Dr. Najarian. In 2006, Dr. Najarian joined us as a part-time employee and currently serves as a
Principal Scientist.

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We have not entered into any off-balance sheet financing arrangements and have not established any special purpose
entities. We have not guaranteed any debt or commitments of other entities or entered into any options on non-financial assets.



In the normal course of business, the Company provides indemnifications of varying scope to customers against claims of intellectual
property infringement made by third parties arising from the use of its products and to its clinical research organizations and investigators sites against liabilities incurred in connection with any
third-party claim arising from the work performed on behalf of the Company, among others. Historically, costs related to these indemnification provisions have not been significant and we are unable to
estimate the maximum potential impact of these indemnification provisions on our future results of operations.

Pursuant
to the terms of the Asset Purchase Agreement for the sale of the Evamist product to K-V, the Company made certain representations and warranties concerning its
rights and assets related to Evamist and the Company's authority to enter into and consummate the transaction. The Company also made certain covenants that survive the closing date of the transaction,
including a covenant not to operate a business that competes, in the U.S., and its territories and protectorates, with the Evamist product.

Pursuant
to the terms of the Asset Purchase Agreement the Company entered into with Meda AB, or Meda, to sell certain of the assets related to the MUSE business to Meda, or the MUSE
Transaction, the Company agreed to indemnify Meda in connection with the representations and warranties that it made concerning its rights, liabilities and assets related to the MUSE business and its
authority to enter into and consummate the MUSE Transaction. The Company also made certain covenants in the Asset Purchase Agreement which survive the closing of the MUSE Transaction, including a
three year covenant not to develop, manufacture, promote or commercialize a trans-urethral erectile dysfunction drug.

To
the extent permitted under Delaware law, we have agreements whereby we indemnify our officers and directors for certain events or occurrences while the officer or director is, or was,
serving at our request in such capacity. The indemnification period covers all pertinent events and occurrences during the officer's or director's lifetime. The maximum potential amount of future
payments we could be required to make under these indemnification agreements is unlimited; however, we have director and officer insurance coverage that reduces our exposure and enables us to recover
a portion of any future amounts paid. We believe the estimated fair value of these indemnification agreements in excess of applicable insurance coverage is minimal.

Recent Accounting Pronouncements

In December 2010, the FASB issued ASU 2010-27,Fees Paid to the Federal Government by
Pharmaceutical Manufacturers, (amendments to FASB ASC Topic 720,Other Expenses. The objective of this Update is to address
questions concerning how pharmaceutical manufacturers should recognize and classify in their income statements fees mandated by the Patient Protection and Affordable Care Act as amended by the Health
Care and Education Reconciliation Act (the Acts). The amendments in this Update are effective for calendar years beginning after December 31, 2010, when the fee initially becomes effective. The
adoption of this statement effective January 1, 2011 did not have a material effect on our consolidated financial statements.

In
January 2010, the FASB issued ASU 2010-06,Fair Value Measurements Disclosures, which amends Subtopic 820-10 of
the FASB Accounting Standards Codification to require new disclosures for

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fair
value measurements and provides clarification for existing disclosures requirements. More specifically, this update will require (a) an entity to disclose separately the amounts of
significant transfers in and out of Levels 1 and 2 fair value measurements and to describe the reasons for the transfers; and (b) information about purchases, sales, issuances and
settlements to be presented separately (i.e. present the activity on a gross basis rather than net) in the reconciliation for fair value measurements using significant unobservable inputs
(Level 3 inputs). This update clarifies existing disclosure requirements for the level of disaggregation used for classes of assets and liabilities measured at fair value and requires
disclosures about the valuation techniques and inputs used to measure fair value for both recurring and nonrecurring fair value measurements using Level 2 and Level 3 inputs. The
adoption of this statement effective January 1, 2010 did not materially expand our consolidated financial statement footnote disclosures.

In
October 2009, the FASB issued ASU 2009-13,Multiple-Deliverable Revenue Arrangements,(amendments to FASB ASC Topic 605, Revenue Recognition), or ASU
2009-13, and ASU 2009-14,Certain Arrangements That Include Software
Elements, (amendments to FASB ASC Topic 985,Software), or ASU 2009-14. ASU 2009-13 requires entities to
allocate revenue in an arrangement using estimated selling prices of the delivered goods and services based on a selling price hierarchy. The amendments eliminate the residual method of revenue
allocation and require revenue to be allocated using the relative selling price method. ASU 2009-14 removes tangible products from the scope of software revenue guidance and provides
guidance on determining whether software deliverables in an arrangement that includes a tangible product are covered by the scope of the software revenue guidance. ASU 2009-13 and ASU
2009-14 should be applied on a prospective basis for revenue arrangements entered into or materially modified in fiscal years beginning on or after June 15, 2010, with early
adoption permitted. The adoption of these statements effective January 1, 2011 did not have a material effect on our consolidated financial statements.

In
June 2009, the FASB issued SFAS No. 167,Amendments to FASB Interpretation No. 46(R), as codified in ASC 810. This
statement amends the consolidation guidance applicable to variable interest entities and the definition of a variable interest entity, and requires enhanced disclosures to provide more information
about an enterprise's involvement in a variable interest entity. This statement also requires ongoing assessments of whether an enterprise is the primary beneficiary of a variable interest entity.
This statement is effective for our fiscal year beginning January 1, 2010. The adoption of this statement did not have a material effect on our consolidated financial statements.

Dividend Policy

We have not paid any dividends since our inception and do not intend to declare or pay any dividends on our common stock in the
foreseeable future. Declaration or payment of future dividends, if any, will be at the discretion of our Board of Directors after taking into account various factors, including our financial
condition, operating results and current and anticipated cash needs.

Cautionary Note on Forward-Looking Statements

Our business is subject to significant risks, including but not limited to, the risks inherent in our research and development
activities, including the successful completion of clinical trials, the lengthy, expensive and uncertain process of seeking regulatory approvals, uncertainties associated both with the potential
infringement of patents and other intellectual property rights of third parties, and with obtaining and enforcing our own patents and patent rights, uncertainties regarding government reforms and of
product pricing and reimbursement levels, technological change, competition, manufacturing uncertainties and dependence on third parties. Even if our investigational drug candidates appear promising
at an early stage of development, they may not reach the market for numerous reasons. Such reasons include the possibilities that the drug will be ineffective or unsafe during clinical trials, will
fail to receive necessary regulatory approvals, will be difficult to manufacture on a large scale, will be

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uneconomical
to market or will be precluded from commercialization by proprietary rights of third parties. For more information about the risks we face, see "Item 1.A. Risk Factors" included in
this report.

Item 7A.Quantitative and Qualitative Disclosures about Market Risk

The Securities and Exchange Commission's rule related to market risk disclosure requires that we describe and quantify our potential
losses from market risk sensitive instruments attributable to reasonably possible market changes. Market risk sensitive instruments include all financial or commodity instruments and other financial
instruments that are sensitive to future changes in interest rates, currency exchange rates, commodity prices or other market factors.

Market and Interest Rate Risk

Our cash, cash equivalents and available-for-sale securities as of December 31, 2010 consisted primarily
of money market funds and U.S. Treasury securities. Our cash is invested in accordance with an investment policy approved by our Board of Directors that specifies the categories (money market funds,
U.S. Treasury securities and debt securities of U.S. government agencies, corporate bonds, asset-backed securities, and other securities), allocations, and ratings of securities we may consider for
investment. Currently, we have focused on investing in U.S. Treasuries until market conditions improve.

Our
primary exposure to market risk is interest income sensitivity, which is affected by changes in the general level of U.S. interest rates, particularly because the majority of our
investments are in short-term marketable debt securities. The primary objective of our investment activities is to preserve principal. Some of the securities that we invest in may be
subject to market risk. This means that a change in prevailing interest rates may cause the value of the investment to fluctuate. For example, if we purchase a security that was issued with a fixed
interest rate and the prevailing interest rate later rises, the value of our investment may decline. A hypothetical 100 basis point increase in interest rates would reduce the fair value of our
available-for-sale securities at December 31, 2010 by approximately $343,000. In general, money market funds are not subject to market risk because the interest paid on
such funds fluctuates with the prevailing interest rate.

There
is ongoing concern in the credit markets regarding the value of a variety of mortgage-backed and auction rate securities and the resultant effect on various securities markets. In
addition, continuing concerns over inflation, energy costs, geopolitical issues, the availability and cost of credit, the U.S. mortgage market and a declining residential real estate market in the
U.S. have contributed to increased volatility and diminished expectations for the economy and the markets going forward. These factors combined with volatile oil prices, declining business and
consumer confidence and increased unemployment, have precipitated an economic recession and fears of a possible depression. Domestic and international equity markets continue to experience heightened
volatility and turmoil. These events and the continuing market upheavals may have an adverse effect on us. In the event of a continuing
market downturn, our results of operations could be adversely affected by those factors in many ways including making it more difficult for us to raise funds if necessary and may cause stock price
volatility. Our investment policy, as approved by our Board of Directors, allows us to invest in cash, cash equivalents and available-for-sale securities that are not federally
insured. Given the current economic instability, we cannot provide assurance that we will not experience losses on these investments.

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Item 8.Financial Statements and Supplementary Data

VIVUS, INC.

1.     Index to Consolidated Financial Statements

The following financial statements are filed as part of this Report:



Reports of Independent Registered Public Accounting Firm

114Consolidated Balance Sheets as of December 31, 2010 and 2009

116Consolidated Statements of Operations for the years ended December 31, 2010, 2009 and 2008

117Consolidated Statements of Stockholders' Equity for the years ended December 31, 2010, 2009 and 2008

118Consolidated Statements of Cash Flows for the years ended December 31, 2010, 2009 and 2008

119Notes to Consolidated Financial Statements

120Financial Statement Schedule II

158


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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

The
Board of Directors and Stockholders of
VIVUS, Inc.

We
have audited the accompanying consolidated balance sheets of VIVUS, Inc. as of December 31, 2010 and 2009, and the related consolidated statements of operations,
stockholders' equity and cash flows for each of the three years in the period ended December 31, 2010. Our audits also included the financial statement schedule listed in Item 15(a)(2).
These financial statements and schedule are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements and schedule based on our audits.

We
conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our opinion.

In
our opinion, the consolidated financial statements audited by us present fairly, in all material respects, the consolidated financial position of VIVUS, Inc. at
December 31, 2010 and 2009, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 2010, in conformity with U.S.
generally accepted accounting principles. Also, in our opinion, the related financial statement schedule, when considered in relation to the basic financial statements taken as a whole, presents
fairly in all material respects the information set forth therein.

We
also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), VIVUS, Inc.'s internal control over financial reporting as
of December 31, 2010, based on criteria established inInternal ControlIntegrated Frameworkissued by the Committee of Sponsoring
Organizations of the Treadway Commission and our report dated February 25, 2011 expressed an unqualified opinion thereon.

/s/
ODENBERG, ULLAKKO, MURANISHI & CO. LLP

San
Francisco, CA

February 25,
2011

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

The
Board of Directors and Stockholders of
VIVUS, Inc.

We
have audited VIVUS, Inc.'s internal control over financial reporting as of December 31, 2010, based on criteria established inInternal
ControlIntegrated Frameworkissued by the Committee of Sponsoring Organizations of the Treadway Commission (the COSO criteria). VIVUS, Inc.'s management is
responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting included in Management's Annual
Report on Internal Control Over Financial Reporting included in Item 9A. Our responsibility is to express an opinion on the Company's internal control over financial reporting based on our
audit.

We
conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control
over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and
performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

A
company's internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting principles. A company's internal control over financial reporting includes those policies and procedures
that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide
reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and
expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely
detection of unauthorized acquisition, use, or disposition of the company's assets that could have a material effect on the financial statements.

Because
of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future
periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

In
our opinion, VIVUS, Inc. maintained, in all material respects, effective internal control over financial reporting as of December 31, 2010, based on the COSO criteria.

We
also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of VIVUS, Inc. as of
December 31, 2010 and 2009, and the related consolidated statements of operations, stockholders' equity and cash flows for each of the three years in the period ended December 31, 2010
and our report dated February 25, 2011 expressed an unqualified opinion thereon.

/s/
ODENBERG, ULLAKKO, MURANISHI & CO. LLP

San
Francisco, CA

February 25,
2011

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VIVUS, INC.        CONSOLIDATED BALANCE SHEETS        (In thousands, except par value)

December 312010

2009ASSETSCurrent assets:Cash and cash equivalents

$
37,216

$
40,533Available-for-sale securities


101,970


166,241Inventories


3,225


Prepaid expenses and other assets


1,648


4,106Current assets of discontinued operations


6


12,482Total current assets


144,065


223,362Property and equipment, net


221


259Non-current assets of discontinued operations





6,411Total assets

$
144,286

$
230,032LIABILITIES AND STOCKHOLDERS' EQUITYCurrent liabilities:Accounts payable

$
2,395

$
8,082Accrued research and clinical expenses


2,625


2,426Accrued employee compensation and benefits


2,820


2,343Accrued and other liabilities


932


2,000Current liabilities of discontinued operations


3,512


7,659Total current liabilities


12,284


22,510Notes payablenet of current portion





15,255Non-current liabilities of discontinued operations





5,541Total liabilities


12,284


43,306Commitments and contingenciesStockholders' equity:Preferred stock; $1.00 par value; 5,000 shares authorized; no shares issued and outstanding at December 31, 2010 and 2009





Common stock; $.001 par value; 200,000 shares authorized at December 31, 2010 and 2009; 81,568 and 80,607 shares issued and outstanding at
December 31, 2010 and December 31, 2009, respectively


82


81Additional paid-in capital


432,041


420,708Accumulated other comprehensive income (loss)


4


(3
)Accumulated deficit


(300,125
)

(234,060
)Total stockholders' equity


132,002


186,726Total liabilities and stockholders' equity

$
144,286

$
230,032


See
accompanying notes to consolidated financial statements.

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VIVUS, INC.        CONSOLIDATED STATEMENTS OF OPERATIONS        (In thousands, except per share data)

Years Ended December 312010

2009

2008Revenue:License and other revenue

$


$
31,395

$
83,721Operating expenses:Research and development


39,971


70,940


76,673General and administrative


25,656


13,870


12,253Total operating expenses


65,627


84,810


88,926Loss from operations


(65,627
)

(53,415
)

(5,205
)Interest and other income (expense):Interest and other income, net


468


1,998


4,406Interest expense


(4,308
)

(3,693
)

(659
)Other-than-temporary loss on impaired securities





(654
)

(7,689
)Loss on early extinguishment of debt


(5,958
)




Total interest and other income (expense)


(9,798
)

(2,349
)

(3,942
)Loss from continuing operations before income taxes


(75,425
)

(55,764
)

(9,147
)Benefit (provision) for income taxes


(9
)

2,379


7Net loss from continuing operations


(75,434
)

(53,385
)

(9,140
)Discontinued operations:Income (loss) before income taxes


9,398


(967
)

(790
)Benefit (provision) for income taxes


(29
)

61


(10
)Net income (loss) from discontinued operations


9,369


(906
)

(800
)Net loss

$
(66,065
)
$
(54,291
)
$
(9,940
)Basic and diluted net income (loss) per share:Continuing operations

$
(0.93
)
$
(0.74
)
$
(0.15
)Discontinued operations


0.11


(0.01
)

(0.01
)Net loss per share

$
(0.82
)
$
(0.75
)
$
(0.16
)Shares used in per share computation:Basic


81,017


72,779


63,724Diluted


83,821


72,779


63,724


See
accompanying notes to consolidated financial statements.

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VIVUS, INC.        CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY        (In thousands)

Common Stock



Accumulated
Other
Comprehensive
Income (Loss)Additional
Paid-In
Capital

Accumulated
DeficitShares

Amount

TotalBalances, December 31, 2007


58,873

$
59

$
230,005

$
(68
)
$
(169,829
)
$
60,167Sale of common stock through employee stock purchase plan


64





275








275Exercise of common stock options for cash


738


1


2,182








2,183Share-based compensation expense








4,718








4,718Proceeds from private placement of common stock


9,992


10


74,990








75,000Issue costs for private placement of common stock








(1,612
)







(1,612
)Net unrealized gain on securities











422





422Net loss














(9,940
)

(9,940
)Balances, December 31, 2008


69,667


70


310,558


354


(179,769
)

131,213Sale of common stock through employee stock purchase plan


99





361








361Exercise of common stock options for cash


491


1


2,349








2,350Share-based compensation expense








4,791








4,791Proceeds from underwritten public offering of common stock


10,350


10


108,665








108,675Issue costs for underwritten public offering of common stock








(6,016
)







(6,016
)Net unrealized loss on securities











(357
)




(357
)Net loss














(54,291
)

(54,291
)Balances, December 31, 2009


80,607


81


420,708


(3
)

(234,060
)

186,726Sale of common stock through employee stock purchase plan


48





304








304Exercise of common stock options for cash


913


1


3,616








3,617Share-based compensation expense








7,413








7,413Net unrealized gain on securities











7





7Net loss














(66,065
)

(66,065
)Balances, December 31, 2010


81,568

$
82

$
432,041

$
4

$
(300,125
)
$
132,002


See
accompanying notes to consolidated financial statements.

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VIVUS, INC.        CONSOLIDATED STATEMENTS OF CASH FLOWS        (In thousands)

Years Ended December 312010

2009

2008Cash flows from operating activities:Net loss from continuing operations

$
(75,434
)
$
(53,385
)
$
(9,140
)Adjustments to reconcile net loss from continuing operations to net cash used for operating activities from continuing operations:Depreciation


138


75


63Net realized (gain)/loss on investments


(5
)

(1,085
)

979Other-than-temporary loss on impaired securities





654


7,689Share-based compensation expense


6,443


3,927


3,949Loss on early extinguishment of debt


5,958





Changes in assets and liabilities:Inventories


(3,225
)




Prepaid expenses and other assets


2,658


(2,582
)

2,097Accounts payable


(5,687
)

(7,289
)

8,225Accrued research and clinical expenses


199


(4,009
)

4,953Accrued employee compensation and benefits


477


737


553Deferred revenue





(31,395
)

(83,721
)Accrued and other liabilities


521


1,302


18Net cash used for operating activities from continuing operations


(67,957
)

(93,050
)

(64,335
)Net cash provided by (used for) operating activities from discontinued operations


2,195


(3,033
)

767Net cash used for operating activities


(65,762
)

(96,083
)

(63,568
)Cash flows from investing activities:Property and equipment purchases


(105
)

(237
)

(186
)Release of restricted cash


700





Investment purchases


(209,759
)

(220,606
)

(123,381
)Proceeds from sale/maturity of securities


274,042


177,572


133,674Net cash provided by (used for) investing activities from continuing operations


64,878


(43,271
)

10,107Net cash provided by (used for) investing activities from discontinued operations


21,546


(171
)

(264
)Net cash provided by (used for) investing activities


86,424


(43,442
)

9,843Cash flows from financing activities:Proceeds from notes payable





10,000


7,556Payments of notes payable


(23,000
)

(1,022
)

(1,278
)Exercise of common stock options


3,617


2,350


2,183Sale of common stock through employee stock purchase plan


304


361


275Net proceeds from issuance of common stock





102,659


73,388Net cash (used for) provided by financing activities from continuing operations


(19,079
)

114,348


82,124Net cash used for financing activities from discontinued operations


(4,900
)

(145
)

(130
)Net cash (used for) provided by financing activities


(23,979
)

114,203


81,994Net increase (decrease) in cash and cash equivalents


(3,317
)

(25,322
)

28,269Cash and cash equivalents:Beginning of year


40,533


65,855


37,586End of year

$
37,216

$
40,533

$
65,855Supplemental cash flow disclosure:Interest paid

$
6,030

$
2,861

$
831Income taxes paid

$
41

$
16

$
64Non-cash investing and financing activities:Unrealized gain (loss) on securities

$
7

$
(357
)
$
422


See accompanying notes to consolidated financial statements.

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VIVUS, INC.        NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

Note 1. Business and Significant Accounting Policies

Business

VIVUS is a biopharmaceutical company, incorporated in 1991, developing innovative, next-generation therapies to address
unmet needs in obesity and related morbidities, including sleep apnea and diabetes, and sexual health. The Company's lead drug in clinical development, QNEXA®, has completed Phase 3
clinical trials for the treatment of obesity and a New Drug Application, or NDA, was submitted to the Food and Drug Administration, or FDA, in December 2009. QNEXA is also in Phase 2 clinical
development for the treatment of sleep apnea and type 2 diabetes. In the area of sexual health, VIVUS is in Phase 3 development with avanafil, a PDE5 inhibitor for the treatment of
erectile dysfunction. On November 5, 2010, the Company completed the sale of MUSE® (alprostadil), a first-generation therapy for the treatment of erectile dysfunction, or ED.
Current and investigational drug candidates in development will encompass patented proprietary formulations and novel delivery systems. Investigational drug candidates may be developed by seeking new
indications for previously approved pharmaceutical drugs.

At
December 31, 2010, the Company's accumulated deficit was approximately $300.1 million. Based on current plans, management expects to incur further losses for the
foreseeable future. Management believes that the Company's cash, cash equivalents, and available-for-sale securities at December 31, 2010 will be sufficient to meet the
Company's obligations into 2012. Until the Company can generate sufficient levels of cash from its operations, the Company expects to continue to finance its future cash needs primarily through
proceeds from equity or debt financing, loans and
collaborative agreements with corporate partners. The Company operates in a single segment, the development and commercialization of novel therapeutic products.

Significant Accounting Policies

Reclassifications

Certain prior year amounts in the consolidated financial statements have been reclassified to conform to the current year's
presentation. On November 5, 2010, the Company completed the sale of MUSE®. As discussed in Note 3: "Discontinued Operations," the results of operations, the assets and the
liabilities related to MUSE have been reported as discontinued operations in accordance with FASB ASC topic 205,Discontinued Operations, or ASC 205.
Accordingly, the assets, liabilities and results of operations related to MUSE from prior periods have been reclassified to discontinued operations.

Principles of Consolidation

The consolidated financial statements include the accounts of VIVUS, Inc., and its wholly owned subsidiaries: VIVUS Real
Estate LLC, VIVUS International Limited, VIVUS U.K. Limited and VIVUS B.V. Limited. All significant intercompany transactions and balances have been eliminated in consolidation. On
December 31, 2005, VIVUS U.K. Limited became a dormant company. On March 20, 2008, VIVUS International Limited was dissolved. The Company acquired 100% of the outstanding shares of
Deerfield ED Corp., a Delaware corporation, on November 5, 2010. Deerfield ED Corp. was dissolved on December 9, 2010.

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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 1. Business and Significant Accounting Policies (Continued)

Use of Estimates

The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the financial statements and the reported
amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.

Cash and Cash Equivalents

The Company considers highly liquid investments with maturities from the date of purchase of three months or less to be cash
equivalents. At December 31, 2010, all cash equivalents are invested in money market funds and U.S. Treasury securities. These accounts are recorded at fair value.

Cash
with restrictions for a period of greater than 12 months is classified as restricted cash, a non-current asset.

Available-for-Sale Securities

The Company focuses on liquidity and capital preservation in its investments in available-for-sale securities.
The Company's investment policy, as approved by the Audit Committee of the Board of Directors, allows it to invest its excess cash balances in money market and marketable securities, primarily U.S.
Treasury securities and debt securities of U.S. government agencies, corporate debt securities and asset-backed securities in accordance with its investment policy. The Company periodically evaluates
its investments to determine if impairment charges are required.

The
Company determines the appropriate classification of marketable securities at the time of purchase and reevaluates such designation at each balance sheet date. Marketable securities
have been classified and accounted for as available-for-sale. The Company may or may not hold securities with stated maturities greater than 12 months until maturity. In
response to changes in the availability of and the yield on alternative investments as well as liquidity requirements, the Company may sell these securities prior to their stated maturities. As these
securities are viewed by the
Company as available to support current operations, securities with maturities beyond 12 months are classified as current assets.

Securities
are carried at fair value, with the unrealized gains and losses, net of taxes, reported as a component of stockholders' equity, unless the decline in value is deemed to be
other-than-temporary and the Company intends to sell such securities before recovering their costs, in which case such securities are written down to fair value and the loss is
charged to other-than-temporary loss on impaired securities. The Company evaluates its investment securities for other-than-temporary declines based on
quantitative and qualitative factors. Any realized gains or losses on the sale of marketable securities are determined on a specific identification method, and such gains and losses are reflected as a
component of interest income.

Concentration of Credit Risk

Financial instruments that potentially subject the Company to concentrations of credit risk consist primarily of cash, cash equivalents
and available-for-sale-securities. The Company has established guidelines to limit its exposure to credit risk by placing investments with a number of high credit

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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 1. Business and Significant Accounting Policies (Continued)

quality
institutions, in U.S. Treasury securities or diversifying its investment portfolio and placing investments with maturities that maintain safety and liquidity within the Company's liquidity
needs.

Inventories

Inventories are valued at the lower of cost (first in, first out) or market. The Company records inventory reserves for estimated
obsolescence, unmarketable or excess inventory equal to the difference between the cost of inventory and the estimated market value based upon assumptions about future demand and market conditions. If
actual market conditions are less favorable than those projected by the Company, inventory write-downs may be required.

Prepaid Expenses and Other Assets

Prepaid expenses and other assets generally consist of deposits, other receivables and prepayments for future services. Prepayments are
expensed when the services are received.

Property and Equipment

Property and equipment is stated at cost and includes leasehold improvements, computers and software and furniture and fixtures. For
financial reporting, depreciation is computed using the straight-line method over estimated useful lives of two to seven years for computers and software and furniture and fixtures.
Leasehold improvements are amortized using the straight-line method over the shorter of the expected lease term or the estimated useful lives. Expenditures for repairs and maintenance,
which do not extend the useful life of the property and equipment, are expensed as incurred. Upon retirement, the asset cost and related accumulated depreciation are relieved from the accompanying
consolidated balance sheets. Gains and losses associated with dispositions are reflected as a component of other income, net in the accompanying consolidated statements of operations.

Long-lived
assets, such as property and equipment, are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may
not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to an estimate of undiscounted future cash flows expected to be
generated by the asset. If the carrying amount of the asset exceeds its estimated future cash flows, an impairment charge is recognized by the amount by which the carrying amount of the asset exceeds
the fair value of the asset. Assets to be disposed of would be separately presented in the consolidated balance sheet and reported at the lower of the carrying amount or fair value less costs to sell,
and are no longer depreciated. The assets and liabilities of a disposed group classified as held for sale would be presented separately in the appropriate asset and liability sections of the
consolidated balance sheet. The Company believes the future cash flows to be received from the long-lived assets will exceed the assets' carrying value, and accordingly the Company has not
recognized any impairment losses through December 31, 2010.

Fair Value

On January 1, 2008, the Company adopted SFAS No. 157Fair Value
Measurements,as codified in FASB ASC 820,Fair Value Measurements and Disclosures,or ASC 820, and effective October 10,
2008, the Company adopted FSP No. SFAS 157-3,Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not
Active,except as it applies to the nonfinancial assets and nonfinancial liabilities subject to FSP 157-2. On January 1, 2009, the Company adopted SFAS No
157 with respect

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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 1. Business and Significant Accounting Policies (Continued)

to
non-financial assets and non-financial liabilities. On June 15, 2009, the Company adopted FSP 157-4,Determining Fair Value When
the Volume and Level of Activity for the Assets or Liabilities Have Significantly Decreased and Identifying Transactions That Are Not Orderly.Adoption of the provisions of
these standards did not have a material effect on the Company's financial position.

Financial Instruments Measured at Fair Value.Cash and cash equivalents and available-for-sale financial instruments are
carried at fair value and the Company makes estimates regarding valuation of these assets measured at fair value in preparing the consolidated financial statements.

Fair Value MeasurementDefinition and Hierarchy.SFAS No. 157 defines fair value as the price that would be received to sell
an
asset or paid to transfer a liability (i.e., the "exit price") in an orderly transaction between market participants at the measurement date.

Valuation Technique.SFAS No. 157 establishes a hierarchy for inputs used in measuring fair value that maximizes the use of
observable inputs
and minimizes the use of unobservable inputs by requiring that the observable inputs be used when available. Observable inputs are inputs that market participants would use in pricing the asset or
liability developed based on market data obtained from sources independent of the Company. Unobservable inputs are inputs that reflect the Company's assumptions about the assumptions market
participants would use in pricing the asset or liability developed based on the best information available in the circumstances. SFAS No. 157 prescribes three valuation techniques that shall be
used to measure fair value as follows:



One
or a combination of the approaches above can be used to calculate fair value, whichever results in the most representative fair value.

In
addition to the three valuation techniques, SFAS No. 157 prescribes a fair value hierarchy in order to increase consistency and comparability in fair value measurements and
related disclosures. The hierarchy is broken down into three levels based on the reliability of inputs as follows:



These
types of instruments primarily consist of financial instruments whose value is based on quoted market prices such as cash, money market funds and U.S. Treasury securities that are
actively traded. Management judgment was required to determine the Company's policy that defines the levels at which sufficient volume and frequency of transactions is met for a market to be
considered active.



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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 1. Business and Significant Accounting Policies (Continued)



The
types of instruments valued based on other observable inputs include debt securities of U.S. government agencies, corporate bonds, mortgage-backed and asset-backed products.
Substantially all of these assumptions are observable in the marketplace, can be derived from observable data or are supported by observable levels at which transactions are executed in the
marketplace.



These
types of instruments have included certain corporate bonds, mortgage-backed securities and asset-backed securities. The Company had no Level 3 securities at
December 31, 2010. Level 3 is comprised of unobservable inputs that are supported by little or no market activity. These instruments are considered Level 3 when their fair values
are determined using pricing models, discounted cash flows or similar techniques and at least one significant model assumption or input is unobservable. Level 3 may still include some
observable inputs such as yield spreads derived from markets with limited activity. Level 3 financial assets include securities for which there is limited market activity such that the
determination of fair value requires significant judgment or estimation.

The
availability of observable inputs can vary from product to product and is affected by a wide variety of factors, including, for example, the type of product, whether the product is
new and not yet established in the marketplace, and other characteristics particular to the transaction. To the extent that valuation is based on models or inputs that are less observable or
unobservable in the market, the determination of fair value requires more judgment. Accordingly, the degree of judgment exercised by the Company in determining fair value is greatest for instruments
categorized in Level 3. In certain cases, the inputs used to measure fair value may fall into different levels of the fair value hierarchy. In such cases, for disclosure purposes, the level in
the fair value hierarchy within which the fair value measurement in its entirety falls is determined based on the lowest level input that is significant to the fair value measurement in its entirety.



As of December 31, 2010, the Company's cash and cash equivalents and available-for-sale securities
measured at fair value on a recurring basis totaled $139.2 million. All of the Company's cash and cash equivalents and available-for-sale securities are cash, money
market instruments and U.S. Treasury securities and these are classified as Level 1. The valuation techniques used to measure the fair values of these financial instruments were derived from
quoted market prices, as substantially all of these instruments have maturity dates, if any, within one year from the date of purchase and active markets for these instruments exists.

Revenue Recognition

License and Other Revenue

The Company recognizes license revenue in accordance with the Securities and Exchange Commission's, or SEC's, Staff Accounting Bulletin
No. 104,Revenue Recognition, and Emerging Issues Task Force, or EITF, Issue 00-21,Revenue Arrangements with
Multiple Deliverables,as codified in FASB ASC topic 605,Revenue Recognition, or ASC 605. Revenue arrangements with multiple
deliverables are

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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 1. Business and Significant Accounting Policies (Continued)

divided
into separate units of accounting if certain criteria are met, including whether the delivered item has standalone value to the customer, and whether there is objective, reliable evidence of
the fair value of the undelivered items. Consideration received is allocated among the separate units of accounting based on their relative fair values, and the applicable revenue recognition criteria
are identified and applied to each of the units.

Revenue
from non-refundable, upfront license fees where the Company has continuing involvement is recognized ratably over the development or agreement period. Revenue
associated with performance milestones is recognized based upon the achievement of the milestones, as defined in the respective agreements.

Sale of Evamist product

On May 15, 2007, the Company closed its transaction with K-V Pharmaceutical Company, or K-V, for the
sale of its investigational drug candidate, Evamist. At the time of the sale, Evamist was an investigational drug candidate and was not yet approved by the Food and Drug Administration, or FDA, for
marketing. The sale transaction contained multiple deliverables, including: the delivery at closing of the Evamist assets; a grant of a sublicense of the Company's rights under a license agreement
related to Evamist, and a license to the metered-dose transdermal spray, or MDTS, applicator; the delivery upon receipt of regulatory approval of the approved drug along with all
regulatory submissions; and, lastly, the delivery after FDA approval of certain transition services and a license to improvements to the MDTS applicator. The Company received approval from the FDA to
market Evamist on July 27, 2007, or FDA Approval, and, on August 1, 2007, the Company transferred and assigned the Evamist FDA submissions, and all files related thereto, to
K-V. The Company received an upfront payment of $10 million upon the closing and received an additional $140 million milestone payment in August 2007 upon FDA Approval. These
payments are non-refundable. In August 2008, the Company assigned all of its rights and obligations under the Evamist license agreement to K-V.

Upon
FDA Approval, the two remaining deliverables were the transition services to be performed under the Transition Services Agreement, or TSA, and a license to improvements to the MDTS
applicator during the two-year period commencing with the closing, or May 15, 2007, and ending on May 15, 2009. The Company was able to establish fair value for the TSA.
Given the unique nature of the license to improvements, the Company was unable to obtain objective, reliable evidence of its fair value.

Accordingly,
the delivered items, together with the undelivered items, were treated as one unit of accounting. Since the deliverables were treated as a single unit of accounting, the
total cash received, $150 million, was recognized as revenue on a pro-rata basis over the term of the last deliverable, which in this case was the license to improvements that
expired on May 15, 2009. As a result, the initial $10 million paid at closing and the $140 million paid upon FDA Approval were recorded as deferred revenue and have been
recognized as revenue ratably over the remaining 21.5-month term of the license to improvements, from August 1, 2007 to May 15, 2009. All of the revenue deferred from the
Evamist sale has been recognized.

The
Company is also eligible to receive milestone payments of up to $30 million based upon sales of Evamist through the term of the agreements. Revenue associated with performance
milestones will be recognized based upon the achievement of the milestones, as defined in the respective agreements.

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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 1. Business and Significant Accounting Policies (Continued)

Under
the terms of the transaction, K-V reimbursed the Company for $1.5 million of the $3 million milestone payment paid by the Company to Acrux upon FDA
Approval of the NDA.

Research and Development Expenses and Accruals

Research and development, or R&D, expenses include license fees, related compensation, consultants' fees, facilities costs,
administrative expenses related to R&D activities and clinical trial costs at other companies and research institutions under agreements that are generally cancelable, among other related R&D costs.
The Company also records accruals for estimated ongoing clinical trial costs. Clinical trial costs represent costs incurred by clinical research organizations, or CROs, and clinical sites and include
advertising for clinical trials and patient recruitment costs. These costs are recorded as a component of R&D expenses and are expensed as incurred. Under the Company's agreements, progress payments
are typically made to investigators, clinical sites and CROs. The Company analyzes the progress of the clinical trials, including levels of patient enrollment, invoices received and contracted costs
when evaluating the adequacy of accrued liabilities. Significant judgments and estimates must be made and used in determining the accrued balance in any accounting period. Actual results could differ
from those estimates under different assumptions. Revisions are charged to expense in the period in which the facts that give rise to the revision become known.

Share-Based Payments

The Company follows the fair value method of accounting for share-based compensation arrangements in accordance with SFAS 123R, Share-Based
Payment, as codified in FASB ASC topic 718,CompensationStock Compensation,or
ASC 718. Compensation expense is recognized, using a fair-value based method, for all costs related to share-based payments including stock options and restricted stock units and stock
issued under the employee stock purchase plan. The Company estimates the fair value of share-based payment awards on the date of the grant using an option-pricing model. The Company adopted
SFAS 123R effective January 1, 2006 using the modified prospective method of transition. The Company adopted the simplified method to calculate the beginning balance of the additional
paid-in capital, or APIC, pool of excess tax benefits, and to determine the subsequent effect on the APIC pool and consolidated statements of cash flows of the tax effects of employee
stock-based compensation awards. See Note 8: "Stock Option and Purchase Plans" for further discussion of the Company's stock-based compensation plans.

Income Taxes

The Company makes certain estimates and judgments in determining income tax expense for financial statement purposes. These estimates
and judgments occur in the calculation of certain tax assets and liabilities, which arise from differences in the timing of recognition of revenue and expense for tax and financial statement purposes.

As
part of the process of preparing the Company's consolidated financial statements, the Company is required to estimate its income taxes in each of the jurisdictions in which the
Company operates. This process involves the Company estimating its current tax exposure under the most recent tax laws and assessing temporary differences resulting from differing treatment of items
for tax and accounting purposes. These differences result in deferred tax assets and liabilities, which are included in the Company's consolidated balance sheets.

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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 1. Business and Significant Accounting Policies (Continued)

The
Company assesses the likelihood that it will be able to recover its deferred tax assets. The Company considers all available evidence, both positive and negative, including
historical levels of income, expectations and risks associated with estimates of future taxable income and ongoing prudent and feasible tax planning strategies in assessing the need for a valuation
allowance. If it is not more likely than not that the Company will recover its deferred tax assets, the Company will increase its provision for taxes by recording a valuation allowance against the
deferred tax assets that the Company estimates will not ultimately be recoverable. As a result of the Company's analysis of all available evidence, both positive and negative, as of
December 31, 2010, it was considered more likely than not that the Company's deferred tax assets would not be realized. However, should there be a change in the Company's ability to recover its
deferred tax assets, the Company would recognize a benefit to its tax provision in the period in which the Company determines that it is more likely than not that it will recover its deferred tax
assets.

Contingencies and Litigation

The Company is periodically involved in disputes and litigation related to a variety of matters. When it is probable that the Company
will experience a loss, and that loss is
quantifiable, the Company records appropriate reserves. The Company records legal fees and costs as an expense when incurred.

License Agreements

The Company has obtained rights to patented technologies under several licensing agreements. Non-refundable licensing
payments made on technologies that are yet to be proven are expensed to research and development.

Net Income (Loss) Per Share

The Company computes basic net income (loss) per share applicable to common shareholders based on the weighted average number of common
shares outstanding during the period. Diluted net income (loss) per share is based on the weighted average number of common and common equivalent shares, which represent shares that may be issued in
the future upon the exercise of outstanding stock options. Common share equivalents are excluded from the computation in periods in which they have an anti-dilutive effect. Stock options
for which the price exceeds the average market price over the period have an anti-dilutive effect on net income per share and, accordingly, are excluded from the calculation. When there is
a net loss, other potentially dilutive common equivalent shares are not included in the calculation of net loss per share since their inclusion would be anti-dilutive.

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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 1. Business and Significant Accounting Policies (Continued)

The
computation of basic and diluted net income (loss) per share from continuing and discontinued operations for the years ended December 31, 2010, 2009 and 2008 are as follows:

2010

2009

2008(In thousands, except
per share data)Net loss

$
(66,065
)
$
(54,291
)
$
(9,940
)Net loss per sharebasic

$
(.82
)
$
(.75
)
$
(.16
)Effect of dilutive securities








Net loss per sharediluted

$
(.82
)
$
(.75
)
$
(.16
)Shares used in the computation of net loss per sharebasic


81,017


72,779


63,724Effect of dilutive securities


2,804





Diluted shares


83,821


72,779


63,724


As
the Company recognized a net loss from continuing operations and net income from discontinued operations for the year ended December 31, 2010, 4,383,624 and 1,579,660
potentially dilutive options outstanding were not included in the computation of diluted net loss from continuing operations and diluted net income from discontinued options, respectively, because the
effect would have been anti-dilutive. In the years ended December 31, 2009 and 2008, all potential common equivalent shares were excluded for these periods as they were
anti-dilutive. Potentially dilutive options outstanding of 3,333,108 and 3,282,348 at December 31, 2009 and 2008, respectively, were not included in the computation of diluted net
loss per share for the Company because the effect would be anti-dilutive.

Recent Accounting Requirements

In December 2010, the FASB issued ASU 2010-27,Fees Paid to the Federal Government by
Pharmaceutical Manufacturers, (amendments to FASB ASC Topic 720,Other Expenses. The objective of this update is to address
questions concerning how pharmaceutical manufacturers should recognize and classify in their income statements fees mandated by the Patient Protection and Affordable Care Act as amended by the Health
Care and Education Reconciliation Act (the Acts). The amendments in this update are effective for calendar years beginning after December 31, 2010, when the fee initially becomes effective. The
adoption of this statement effective January 1, 2011 did not have a material effect on the Company's consolidated financial statements.

In
January 2010, the FASB issued ASU 2010-06,Fair Value Measurements Disclosures, which amends Subtopic 820-10 of
the FASB Accounting Standards Codification to require new disclosures for fair value measurements and provides clarification for existing disclosures requirements. More specifically, this update will
require (a) an entity to disclose separately the amounts of significant transfers in and out of Levels 1 and 2 fair value measurements and to describe the reasons for the transfers; and
(b) information about purchases, sales, issuances and settlements to be presented separately (i.e. present the activity on a gross basis rather than net) in the reconciliation for fair
value measurements using significant unobservable inputs (Level 3 inputs). This update clarifies existing disclosure requirements for the level of disaggregation used for classes of assets and
liabilities measured

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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 1. Business and Significant Accounting Policies (Continued)

at
fair value and requires disclosures about the valuation techniques and inputs used to measure fair value for both recurring and nonrecurring fair value measurements using Level 2 and
Level 3 inputs. The adoption of this statement effective January 1, 2010 did not materially expand the Company's consolidated financial statement footnote disclosures.

In
October 2009, the FASB issued ASU 2009-13,Multiple-Deliverable Revenue Arrangements,(amendments to FASB ASC Topic 605, Revenue Recognition), or ASU
2009-13, and ASU 2009-14,Certain Arrangements That Include Software
Elements, (amendments to FASB ASC Topic 985,Software), or ASU 2009-14. ASU 2009-13 requires entities to
allocate revenue in an arrangement using estimated selling prices of the delivered goods and services based on a selling price hierarchy. The amendments eliminate the residual method of revenue
allocation and require revenue to be allocated using the relative selling price method. ASU 2009-14 removes tangible products from the scope of software revenue guidance and provides
guidance on determining whether software deliverables in an arrangement that includes a tangible product are covered by the scope of the software revenue guidance. ASU 2009-13 and ASU
2009-14 should be applied on a prospective basis for revenue arrangements entered into or materially modified in fiscal years beginning on or after June 15, 2010, with early
adoption permitted. The adoption of this statement effective January 1, 2011 did not have a material effect on the Company's consolidated financial statements.

In
June 2009, the FASB issued SFAS No. 167,Amendments to FASB Interpretation No. 46(R), as codified in ASC 810. This
statement amends the consolidation guidance applicable to variable interest entities and the definition of a variable interest entity, and requires enhanced disclosures to provide more information
about an enterprise's involvement in a variable interest entity. This statement also requires ongoing assessments of whether an enterprise is the primary beneficiary of a variable interest entity.
This statement is effective for our fiscal year beginning January 1, 2010. The adoption of this statement did not have a material effect on the Company's consolidated financial statements.

Note 2. Cash, Cash Equivalents and Available-for-Sale Securities

The fair value and the amortized cost of cash, cash equivalents, and available-for-sale securities by major security type at December 31, 2010 and 2009 are
presented in the tables that follow.

As
of December 31, 2010 (in thousands):

Cash and cash equivalents

Amortized
Cost

Estimated
Fair Value

Gross
Unrealized
Gains

Gross
Unrealized
LossesCash and money market funds

$
37,216

$
37,216

$


$
Total cash and cash equivalents

$
37,216

$
37,216

$


$





Available-for-sale securities

Amortized
Cost

Estimated
Fair Value

Gross
Unrealized
Gains

Gross
Unrealized
LossesU.S. Treasury securities

$
101,966

$
101,970

$
12

$
(8
)Total available-for-sale securities

$
101,966

$
101,970

$
12

$
(8
)


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Table of Contents

VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 2. Cash, Cash Equivalents and Available-for-Sale Securities (Continued)

As of December 31, 2009 (in thousands):

Cash and cash equivalents

Amortized
Cost

Estimated
Fair Value

Gross
Unrealized
Gains

Gross
Unrealized
LossesCash and money market funds

$
38,525

$
38,525

$


$
U.S. Treasury securities


2,009


2,008





(1
)Total cash and cash equivalents

$
40,534

$
40,533

$


$
(1
)




Available-for-sale securities

Amortized
Cost

Estimated
Fair Value

Gross
Unrealized
Gains

Gross
Unrealized
LossesU.S. Treasury securities

$
166,243

$
166,241

$
34

$
(36
)Total available-for-sale securities

$
166,243

$
166,241

$
34

$
(36
)


The
following table summarizes the Company's available-for-sale securities by the contractual maturity date as of December 31, 2010 (in thousands):

Amortized
Cost

Estimated
Fair ValueDue within one year

$
101,966

$
101,970$
101,966

$
101,970


The
following table summarizes the net realized gains (losses) on available-for-sale securities for the periods presented (in thousands):

Years Ended December 31,2010

2009

2008Realized gains

$
5

$
1,637

$
394Realized losses





(552
)

(1,373
)Net realized gains (losses)

$
5

$
1,085

$
(979
)


During
the year ended December 31, 2010, the Company sold a total of $28.5 million of fixed income securities, which resulted in net realized gains of $5,000. During the
year ended December 31, 2009, the Company sold and received paydowns totaling $24 million of fixed income securities, which resulted in net realized gains of $1.1 million. During
the year ended December 31, 2008, the Company sold and received paydowns totaling $85.2 million of fixed income securities which resulted in net realized losses of $979,000. In the
ordinary course of business, the Company may sell securities at a loss for a number of reasons, including, but not limited to: (i) changes in the investment environment; (ii) expectation
that the fair value could deteriorate further; (iii) desire to reduce exposure to an issuer or an industry; (iv) changes in credit quality; or (v) changes in expected cash flow.

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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 2. Cash, Cash Equivalents and Available-for-Sale Securities (Continued)

At
December 31, 2010, the Company had the following available-for-sale securities that were in an unrealized loss position (in thousands):

Less Than 12 MonthsDecember 31, 2010

Gross
Unrealized
Losses

Estimated
Fair
ValueU.S. Treasury securities

$
(8
)
$
42,822Total

$
(8
)
$
42,822


At
December 31, 2009, the Company had the following cash equivalent and available-for-sale securities that were in an unrealized loss position (in
thousands):

Less Than 12 MonthsDecember 31, 2009

Gross
Unrealized
Losses

Estimated
Fair
ValueU.S. Treasury securities

$
(37
)
$
79,709Total

$
(37
)
$
79,709


The
gross unrealized losses reported above for December 31, 2010 and 2009 were primarily caused by general fluctuations in market interest rates from the respective purchase date
of these securities through the end of those periods. The gross unrealized loss of $37,000 at December 31, 2009 is attributable to the Company's holding in 32 individual securities from one
issuer, the U.S. Treasury.

As
the Company presently does not intend to sell its debt securities and believes it will not likely be required to sell the securities that are in an unrealized loss position before
recovery of their amortized cost, the Company does not consider these securities to be other-than-temporarily impaired.

As
of December 31, 2010 and 2009, the temporary unrealized gains (losses) on cash, cash equivalents and available-for-sale securities, net of tax, of
$4,000 and $(3,000), respectively, were included in accumulated other comprehensive income (loss) in the accompanying consolidated balance sheets.

SFAS
No. 115,Accounting for Certain Investments in Debt and Equity Securities, FSP SFAS 115-2 and
SFAS 124-4,Recognition and Presentation of Other-than-Temporary Impairments ("FSP
115-2/SFAS 124-2")and SAB Topic 5M,Accounting for Non-current Marketable Equity
Securities, as codified in FASB ASC topic 320-10,InvestmentsDebt and Equity Securities, or ASC
320-10, provides guidance on determining when an investment is other-than-temporarily impaired. Investments are reviewed quarterly for indicators of
other-than-temporary impairment. Effective for all periods ending after June 15, 2009, it provides additional guidance designed to create a greater clarity and
consistency in accounting for and presenting impairment losses on securities. In reviewing its non-U.S. Government available-for-sale securities, the Company
concluded that it intends to sell the debt securities before recovering their costs. Therefore, in accordance with the above recent guidance, the Company recognized an
"other-than-temporary" impairment of $654,000 on these securities during the year ended December 31, 2009. The Company included this non-cash impairment
charge in other-than-temporary loss on impaired securities in the consolidated statements of operations and other

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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 2. Cash, Cash Equivalents and Available-for-Sale Securities (Continued)

comprehensive
loss. These securities covered a number of industries. At December 31, 2010, all available-for-sale securities were invested in U.S. Treasuries.

During
the Company's quarterly impairment assessments in 2008, the Company determined that a decline in value of certain securities was other-than-temporary.
Accordingly, the Company recorded other-than-temporary impairment adjustments of $7.7 million in the year ended December 31, 2008. The Company included this
non-cash impairment charge in other-than-temporary loss on impaired securities in the consolidated statements of operations. Included in the charge taken in 2008
was $2.4 million related to corporate bonds issued by Lehman Brothers Holdings Inc., or Lehman (or their respective subsidiaries, as appropriate). In addition,
other-than-temporary impairments recognized in 2008 included impairments on investments for which the Company determined that the impairment was
other-than-temporary due to credit downgrades and/or the Company's intent and ability to hold the investment to maturity. These securities covered a number of industries.

Fair Value Measurements

Effective January 1, 2008, the Company adopted SFAS No. 157,Fair Value
Measurements, as codified in FASB ASC 820,Fair Value Measurements and Disclosures,or ASC 820, which defines fair value,
establishes a framework for measuring fair value in generally accepted accounting principles and expands disclosures about fair value measurements. Broadly, the framework clarifies that fair value is
an exit price, representing the amount that would be received to sell an asset
or paid to transfer a liability in an orderly transaction between market participants. As such, fair value is a market-based measurement that should be determined based on assumptions that market
participants would use in pricing an asset or liability.

As
a basis for considering such assumptions, this statement establishes a three-tier value hierarchy, which prioritizes the inputs used in measuring fair value as follows:
(Level 1) observable inputs such as quoted prices in active markets; (Level 2) inputs other than the quoted prices in active markets that are observable either directly or indirectly;
and (Level 3) unobservable inputs in which there is little or no market data, which require the Company to develop its own assumptions. This hierarchy requires the Company to use observable
market data, when available, and to minimize the use of unobservable inputs when determining fair value. On a recurring basis, the Company measures its marketable securities at fair value.

The
following fair value hierarchy tables present information about the Company's assets (cash and cash equivalents, available-for-sale securities) measured at
fair value on a recurring basis as of December 31, 2010 (in thousands):

Basis of Fair Value MeasurementsBalance at
December 31, 2010

Level 1

Level 2

Level 3Cash and cash equivalents:Cash and money market funds

$
37,216

$
37,216

$


$
Total cash and cash equivalents

$
37,216

$
37,216

$


$



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Table of Contents

VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 2. Cash, Cash Equivalents and Available-for-Sale Securities (Continued)



Basis of Fair Value MeasurementsBalance at
December 31, 2010

Level 1

Level 2

Level 3Available-for-sale securities:U.S. Treasury securities

$
101,970

$
101,970

$


$
Total available-for-sale securities

$
101,970

$
101,970

$


$
Reported as:Cash and cash equivalents

$
37,216Available-for-sale securities


101,970Total

$
139,186


The
following fair value hierarchy tables present information about the Company's assets (cash and cash equivalents and available-for-sale securities) measured at
fair value on a recurring basis as of December 31, 2009 (in thousands):

Basis of Fair Value MeasurementsBalance at
December 31, 2009

Level 1

Level 2

Level 3Cash and cash equivalents:Cash and money market funds

$
38,525

$
38,525

$


$
U.S. Treasury securities


2,008


2,008





Total cash and cash equivalents

$
40,533

$
40,533

$


$





Basis of Fair Value MeasurementsBalance at
December 31, 2009

Level 1

Level 2

Level 3Available-for-sale securities:U.S. Treasury securities

$
166,241

$
166,241

$


$
Total available-for-sale securities

$
166,241

$
166,241

$


$
Reported as:Cash and cash equivalents

$
40,533Available-for-sale securities


166,241Total

$
206,774


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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 2. Cash, Cash Equivalents and Available-for-Sale Securities (Continued)

Fair values are based on quoted market prices, where available. These fair values are obtained primarily from third party pricing services, which generally use Level 1 or
Level 2 inputs for the determination of fair value in accordance with ASC 820. Third party pricing services normally derive the security prices through recently reported trades for identical or
similar securities making adjustments through the reporting date based upon available market observable information. For securities not actively traded, the third party pricing services may use quoted
market prices of comparable instruments or discounted cash flow analyses, incorporating inputs that are currently
observable in the markets for similar securities. Inputs that are often used in the valuation methodologies include, but are not limited to, benchmark yields, broker quotes, credit spreads, default
rates and prepayment speeds. The Company performs a review of the prices received from third parties to determine whether the prices are reasonable estimates of fair value.

The
Company generally obtains one price for each investment security. The Company performs a review to assess if the evaluated prices represent a reasonable estimate of their fair value.
This process involves quantitative and qualitative analysis by the Company. Examples of procedures performed include, but are not limited to, initial and ongoing review of pricing service
methodologies, review of the prices received from the pricing service, and comparison of prices for certain securities with different appropriate price sources for reasonableness. As a result of this
analysis, if the Company determines there is a more appropriate fair value based upon available market data, which happens infrequently, the price of a security is adjusted accordingly. The pricing
service provides information to indicate which securities were priced using market observable inputs so that the Company can properly categorize its financial assets in the fair value hierarchy.

As
of December 31, 2010, the Company does not have any liabilities that are measured at fair value on a recurring basis.

Certain
assets and liabilities are measured at fair value on a nonrecurring basis; that is, the instruments are not measured at fair value on an ongoing basis but are subject to fair
value adjustments only in certain circumstances (for example, when there is evidence of impairment). There were no assets or liabilities measured at fair value on a nonrecurring basis during the year
ended December 31, 2010.

Note 3. Discontinued Operations

On October 1, 2010, the Company entered into a definitive Asset Purchase Agreement with Meda AB, or Meda, to sell certain rights and assets related to MUSE, transurethral
alprostadil, for the treatment of erectile dysfunction, or the MUSE Transaction. Meda has been the Company's European distributor of MUSE since 2002. The assets sold in the MUSE Transaction include
the U.S. and foreign MUSE patents, existing inventory, and the manufacturing facility located in Lakewood, New Jersey. The Company retained all of the liabilities associated with the
pre-closing operations and products of the MUSE business and the accounts receivables for pre-closing MUSE sales. The transaction closed on November 5, 2010. Prior to
the closing of the MUSE Transaction, the Company terminated all of the rights to MUSE and avanafil held by Deerfield Management Company, L.P. and affiliates and by Crown Bank, N. A. as
collateral to the Company's note payable (see Note 6: "Notes Payable"). Under the terms of the MUSE Transaction, the Company received an upfront payment of $22 million upon the closing
and is eligible to receive an additional $1.5 million based on future sales of MUSE, provided that certain sales milestones are reached. Meda is now responsible for the manufacturing,

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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 3. Discontinued Operations (Continued)

selling
and marketing of MUSE. Meda also assumed all post-closing expenses and liabilities associated with MUSE. The Company has agreed not to develop, manufacture or sell any
transurethral erectile dysfunction drugs for a period of three years following the closing of the MUSE Transaction.

The
sale of the MUSE product and certain related assets has been reported as discontinued operations in the consolidated statements of operations for all periods presented, since
(i) the MUSE product and related assets have identifiable cash flows that are largely independent of the cash flows of other groups of assets and liabilities, (ii) the Company will have
no significant continuing involvement with the product after the close of the transaction, and (iii) the cash milestone payment to be received upon achievement of certain sales levels is
considered an indirect cash flow. The assets and liabilities related to the MUSE operations are reported as assets and liabilities of discontinued operations in the consolidated balance sheets for all
periods presented.

The
following table presents the major classes of assets and liabilities that have been presented as assets and liabilities of discontinued operations in the consolidated balance sheets
(in thousands):

December 31,
2010

December 31,
2009ASSETSCash and cash equivalents

$


$
217Trade accounts receivable, net


6


7,259Inventories, net





2,702Prepaid expenses and other assets





2,304Total current assets of discontinued operations


6


12,482Property and equipment, net





5,711Restricted cash





700Total non-current assets of discontinued operations





6,411Total assets of discontinued operations

$
6

$
18,893




December 31,
2010

December 31,
2009LIABILITIESAccounts payable

$
211

$
403Accrued product returns


2,598


3,026Accrued chargeback reserve


472


1,617Accrued employee compensation and benefits


47


729Accrued and other liabilities


184


1,884Total current liabilities of discontinued operations


3,512


7,659Note payable Crown Bank, N.A., net of current portion





4,743Deferred revenue





798Total non-current liabilities of discontinued operations





5,541Total liabilities of discontinued operations

$
3,512

$
13,200


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Table of Contents

VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 3. Discontinued Operations (Continued)

The
following table presents summarized results of operations for the discontinued operations presented in the consolidated statements of operations (in thousands):

Years Ended December 31,2010

2009

2008Total revenues

$
13,311

$
18,646

$
18,512Loss from operations

$
(3,902
)
$
(602
)
$
(418
)Income (loss) before provision (benefit) for income taxes

$
9,398

$
(967
)
$
(790
)Net income (loss) from discontinued operations

$
9,369

$
(906
)
$
(800
)


Note 4. Prepaid Expenses and Other Assets

Prepaid expenses and other assets as of December 31, 2010 and 2009, respectively, consist of (in thousands):

2010

2009Refundable federal income taxes

$
141

$
2,381Prepaid clinical studies


5


520Interest receivable


553


472Prepaid insurance


594


429Other prepaid expenses and assets


355


304Prepaid expenses and other assets

$
1,648

$
4,106


Note 5. Property and Equipment

Property and equipment as of December 31, 2010 and 2009, respectively, consist of (in thousands):

2010

2009Computers and software

$
541

$
522Furniture and fixtures


461


412Leasehold improvements


272


2401,274


1,174Accumulated depreciation


(1,053
)

(915
)Property and equipment, net

$
221

$
259


For
the years ended December 31, 2010, 2009 and 2008, depreciation expense was $138,000, $75,000 and $63,000, respectively.

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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 6. Notes Payable

Deerfield Financing

On April 3, 2008, the Company entered into several agreements with Deerfield Management Company, L.P., or Deerfield, a
healthcare investment fund, and its affiliates, Deerfield Private Design Fund L.P. and Deerfield Private Design International, L.P. (collectively, the Deerfield Affiliates). Certain of
the agreements were amended and restated on March 16, 2009, which included the addition of Deerfield PDI Financing L.P. as a Deerfield Affiliate. Under the agreements, Deerfield and its
affiliates agreed to provide $30 million in funding to the Company. The $30 million in funding consisted of $20 million from a Funding and Royalty Agreement, or FARA, entered into
with a newly incorporated subsidiary of Deerfield, or the Deerfield Sub, and $10 million from the sale of the Company's common stock under a securities purchase agreement. Under the FARA, the
Deerfield Sub made $3.3 million payments to the Company in April, September and December 2008 and February, June and September 2009, constituting all of the required payments under the FARA.
The Company paid royalties on the net sales of MUSE and if approved, on future sales of avanafil, an investigational drug candidate, to the Deerfield Sub. The term of the FARA was 10 years. The
FARA included covenants requiring the Company to use commercially reasonable efforts to preserve its intellectual property, manufacture, promote and sell MUSE, and develop avanafil.

The
agreements also provided the Company with an option to purchase, and the Deerfield Affiliates with an option to compel the Company to purchase, or put right, the Deerfield Sub
holding the royalty rights. If the Company exercised its right to purchase the Deerfield Sub, the net price would be $23 million if exercised before April 3, 2011, or $26 million
if exercised after April 3, 2011 but before April 3, 2012 (the purchase prices are subject to other adjustments as defined in the agreement). After April 3, 2011, the Deerfield
Affiliates could have exercised the right to compel the Company to purchase the Deerfield Sub at a price of $17 million. This price could have increased up to $26 million, and the timing
of the sale of the shares could have been accelerated under certain conditions including a change-in-control, sale of MUSE or avanafil, sale of major assets and the sale of
securities in a transaction or a series of related transactions by the Company that exceed
20% of the Company's outstanding common stock at the date the Option and Put Agreement was signed if at the time of the sale the Company's market capitalization is below $300 million (each, a
Major Transaction). Under these conditions, the cost of the shares of the Deerfield Sub would have been $23 million on or before April 3, 2011 and $26 million from April 3,
2011 through April 3, 2018. The sale of the shares of the Deerfield Sub could also have been accelerated if the Company's cash, cash equivalents and available for sale securities fell below
$15 million or the Company's market capitalization fell below $50 million. The purchase prices under the put right were subject to other adjustments as defined in the agreements. If
either party exercised its option, any further royalty payments would be effectively terminated. In exchange for the option right, the Company paid $2 million to the Deerfield Affiliates. The
Company's intellectual property and all of the accounts receivable, inventory and machinery and equipment arising out of or relating to MUSE and avanafil were collateral for this transaction. At
December 31, 2009 and 2008, substantially all of the accounts receivable, inventory and machinery and equipment, reported as assets of discontinued operations (See Note 3: "Discontinued
Operations") on the Company's consolidated balance sheet related to MUSE and served as collateral for this transaction.

In
preparation for the closing of the MUSE Transaction and in accordance with the terms of the OPA, the Company exercised the option right and on October 21, 2010, it paid
$27.1 million in satisfaction of all of its financial obligations under the FARA and OPA. The gross amount paid

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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 6. Notes Payable (Continued)

consisted
of the Base Option Price of $25 million less the $2 million Option Premium Adjustment, or $23 million, plus the Cash Adjustment of $2.8 million and the Royalty
Adjustment of $1.3 million. The Royalty Adjustment was calculated based upon royalties on MUSE sales not yet paid to the Deerfield Sub at the time of Option Closing. The Cash Adjustment was the
total amount of cash remaining in the Deerfield Sub at time of Option Closing. As a result, all of the outstanding shares of the Deerfield Sub were acquired by the Company, the royalty rights to MUSE
and avanafil were terminated and the notes payable of the Deerfield Sub were cancelled. In addition, the $2.8 million of cash held by the Deerfield Sub is now owned by the Company. All the
security interests in the collateral related to MUSE and avanafil held by the Deerfield Sub and the Deerfield Affiliates as part of the FARA and OPA were terminated. In December 2010, the Deerfield
Sub was dissolved. The payoff of the Deerfield loan resulted in a loss on the early extinguishment of debt of $6 million which was recognized in the fourth quarter of 2010.

The
Company evaluated the Deerfield financing in accordance with FASB Financial Interpretation No., or FIN, 46(R),Consolidation of Variable Interest
Entities, or FIN 46R, as codified in FASB ASC topic 810,Consolidation,or ASC 810, and determined that the Deerfield Sub
may constitute a Variable Interest Entity, or VIE; however, the Company also determined that it was not the primary beneficiary of this VIE and therefore concluded that the Company was not required to
consolidate the Deerfield Sub. In December 2010, the Deerfield Sub was dissolved.

In
accordance with Emerging Issues Task Force (EITF) Issue 88-18,Sale of Future Revenues, as codified in FASB ASC 605, the
FARA transaction was in substance a financing arrangement, or loan, that was repaid by the Company. The minimum repayment amount was $17 million, the amount of the unconditional put option held
by the Deerfield Affiliates, plus royalties
paid during the term of the agreement on sales of MUSE and, if approved, avanafil. Accordingly, the Company recorded the advances from the Deerfield Affiliates, net of the $2 million option
right payment and related fees and expenses, as a loan. The Company received all of the required advances under the financing arrangement. Per the agreement, the loan amount would be lower than the
contractual amounts owed if the Company exercised its call option of $23 million to $26 million, or if the Deerfield Affiliates required the Company to purchase the shares as a result of
a "Major Transaction". Using the interest method under APB Opinion No. 21,Interest on Receivables and Payables, as codified in FASB ASC topic
835,Interest,subtopic 30,Imputation of Interestor ASC 835-30, interest expense on the
loan was calculated and recognized over three years, which was the estimated term of the loan based on the earliest date that the Deerfield Affiliates could require the Company to repay the amounts
advanced. The Deerfield Affiliates received quarterly payments based on net sales of MUSE. The initial imputed effective annual interest rate on the financing was approximately 32% as calculated based
upon quarterly advances under the FARA, up to a loan balance of $17 million, offset by the estimated quarterly royalty payments to the Deerfield Affiliates. The imputed interest rate was
revised to 31% at December 31, 2009 and 33% at December 31, 2008 based on the actual royalty payments made and the timing of payments and advances in 2009 and 2008, respectively. The
imputed effective interest rate was utilized for purposes of calculating the interest expense only and did not reflect the amount of royalty paid to the Deerfield Affiliates on a quarterly basis.
Quarterly royalty payments were based on a percentage of net MUSE sales at a rate substantially lower than the imputed effective interest rate used to calculate interest expense.

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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 6. Notes Payable (Continued)

Crown Bank N.A. Loan

On January 4, 2006, VIVUS, Inc. and Vivus Real Estate LLC, a wholly owned subsidiary of VIVUS, Inc.,
jointly, the Company, entered into a Term Loan Agreement and a Commercial Mortgage Note, or the Agreements, with Crown Bank N. A., or Crown, secured by the land and buildings, among other assets,
located at 735 Airport Road and 745 Airport Road in Lakewood, New Jersey, or the Facility. The Facility was the Company's former principal manufacturing facility, which the Company purchased on
December 22, 2005. Under the Agreements, the Company borrowed $5.4 million on January 4, 2006 from Crown payable over a 10-year term. The interest rate was adjusted
annually to a fixed rate for the year equal to the prime rate plus 1%, with a floor of 7.5%. Principal and interest were payable monthly based upon a 20-year amortization schedule and were
adjusted annually at the time of the interest rate reset. All remaining principal was due on February 1, 2016. The interest rate was 7.5% for the year ended December 31, 2010 and 2009,
respectively. Because the interest rate was variable, and based on a market rate, the carrying value of the debt approximates fair value. The Agreements contained prepayment penalties, and a
requirement to maintain a depository account at Crown with a minimum collected balance of $100,000 which, if not maintained, would result in an automatic increase in the interest rate on the note of
one-half percent (0.5%). The Facility, assignment of rents and leases on the Facility, and a $700,000 Certificate of Deposit held by Crown, classified as restricted cash, served as
collateral for these Agreements. At December 31, 2009, the Facility and restricted cash were reported as
assets of discontinued operations, (see Note 3: "Discontinued Operations"). On October 15, 2010, in preparation for the closing of the MUSE Transaction and in accordance with the terms
of the Agreements, the Company paid $4.8 million to Crown in satisfaction of all obligations owed to Crown under the Agreements. As a result, the security interests and Certificate of Deposit
held by Crown were terminated in favor of the Company. The Crown Bank N.A. Loan is reported as a liability of discontinued operations in the consolidated balance sheets for all periods presented (see
Note 3: "Discontinued Operations").

Total
long-term notes payable consist of the following (in thousands):

December 31, 2010

December 31, 2009Deerfield loan

$


$
15,255Less current portion





Total long-term notes payable

$


$
15,255


Note 7. Stockholders' Equity

Common Stock

The Company is authorized to issue 200 million shares of common stock. As of December 31, 2010 and 2009, there were
81,568,082 and 80,607,481 shares, respectively, issued and outstanding.

On
April 3, 2008, the Company entered into several agreements with the Deerfield Affiliates (see Note 6: Notes Payable). Under the agreements, Deerfield and its affiliates
agreed to provide $30 million in funding to the Company. The $30 million in funding consists of $20 million from a FARA and $10 million from the sale of the Company's
common stock under a securities purchase agreement. At the closing on April 15, 2008, under the securities purchase agreement, the Deerfield Affiliates purchased 1,626,017 shares of the
Company's common stock for an aggregate purchase price

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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 7. Stockholders' Equity (Continued)

of
$10 million and the Company paid to the Deerfield Affiliates a $500,000 fee and reimbursed approximately $200,000 in certain expenses incurred in this transaction, registered under the shelf
Registration Statement (File Number 333-135793) filed with the SEC on July 14, 2006. The number of shares was determined based on the volume weighted average price on the
NASDAQ Global Market of the Company's common stock on the three days prior to the execution of the securities purchase agreement dated as of April 3, 2008.

On
August 6, 2008, the Company sold $65 million of its common stock in a registered direct offering. Under the terms of the financing, the Company sold 8,365,508 shares of
its common stock at a price of $7.77 per share. On August 5, 2008, the Company filed a prospectus supplement with the SEC relating to this registered direct offering under the existing shelf
Registration Statement (File Number 333-150649).

On
March 9, 2009, the Company filed a Form S-8 (File Number 333-157787) with the SEC registering 1,000,000 shares of common stock, par value
$0.001 per share, under the 2001 Stock Option Plan, as amended.

On
September 17, 2009, the Company entered into an underwriting agreement, or the Underwriting Agreement, with J.P. Morgan Securities Inc., as representative of the several
underwriters named therein, or the Underwriters, relating to the public offering and sale of 9,000,000 shares of the Company's common stock. Pursuant to the Underwriting Agreement, the Underwriters
agreed to purchase, subject to customary closing conditions, 9,000,000 shares of the Company's common stock. The Company also granted the Underwriters a 30-day option to purchase up to
1,350,000 additional shares of common stock on the same terms and conditions as set forth above to cover over-allotments, which the Underwriters exercised in full. The 10,350,000 shares
were sold at a price to the public of $10.50 per share which resulted in approximately $108.7 million in gross proceeds to the Company before deducting underwriting discounts and commissions
and other offering expenses. The transaction closed on September 23, 2009. The offering was made pursuant to the Company's effective shelf registration statement on Form S-3
(Registration No. 333-161948) including the prospectus dated September 16, 2009 contained therein, as supplemented.

On
February 16, 2010, the Company filed a Form S-8 (File Number 333-164921) with the SEC registering 1,000,000 shares of common stock, par
value $0.001 per share, under the 2001 Stock Option Plan, as amended.

On
July 14, 2010, the Company filed a Form S-8 (File Number 333-168106) with the SEC registering 16,615,199 shares of common stock, par value
$0.001 per share, to be issued pursuant to the 2010 Equity Incentive Plan, and registering 400,000 shares of common stock, par value $0.001 per share, to be issued pursuant to the Stand-Alone Stock
Option Agreement with Michael P. Miller.

Preferred Stock

The Company is authorized to issue 5 million shares of undesignated preferred stock with a par value of $1.00 per share. As of
December 31, 2010 and 2009, there were no preferred shares issued or outstanding. The Company may issue shares of preferred stock in the future, without stockholder approval, upon such terms as
the Company's management and Board of Directors may determine.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 7. Stockholders' Equity (Continued)

Stockholder Rights Plan

On March 26, 2007, the Board of Directors of the Company adopted a Stockholder Rights Plan, or the Rights Plan, and amended its
bylaws. Under the Rights Plan, the Company will issue a dividend of one right for each share of its common stock held by stockholders of record as of the close of business on April 13, 2007.

The
Rights Plan is designed to guard against partial tender offers and other coercive tactics to gain control of the Company without offering a fair and adequate price and terms to all
of the Company's stockholders. The Rights Plan is intended to provide the Board of Directors with sufficient time to consider any and all alternatives to such an action and is similar to plans adopted
by many other publicly traded companies. The Rights Plan was not adopted in response to any efforts to acquire the Company and the Company is not aware of any such efforts.

Each
right will initially entitle stockholders to purchase a fractional share of the Company's preferred stock for $26.00. However, the rights are not immediately exercisable and will
become exercisable only upon the occurrence of certain events. If a person or group acquires, or announces a tender or exchange offer that would result in the acquisition of 15% or more of the
Company's common stock while the Stockholder Rights Plan remains in place, then, unless the rights are redeemed by the Company for $.001 per right, the rights will become exercisable by all rights
holders except the acquiring person or group for the Company's shares or shares of the third party acquirer having a value of twice the right's then-current exercise price. The Rights will
expire on the earliest of (i) April 13, 2017 (the final expiration date), or (ii) redemption or exchange of the Rights.

Note 8. Stock Option and Purchase Plans

Stock Option Plan

Under the 2001 Stock Option Plan, or the 2001 Plan, which was approved by the stockholders at the annual meeting held on June 5,
2002, the Company may grant incentive or non-statutory stock options or stock purchase rights, or SPRs. The maximum aggregate number of shares that may be granted under the 2001 Plan is
1,000,000 shares plus (a) any shares that have been reserved but not issued under the Company's 1991 Incentive Stock Option Plan, or the 1991 Plan; (b) any shares returned to the 1991
Plan as a result of termination of options or repurchase of shares issued under the 1991 Plan; and (c) an annual increase to be added on the first day of the Company's fiscal year beginning
2003, equal to the lesser of (i) 1,000,000 shares, (ii) 2.5% of the outstanding shares on such date, or (iii) a lesser amount determined by the Board. The 2001 Plan allows the
Company to grant incentive stock options to employees at not less than 100% of the fair market value of the stock (110% of fair market value for individuals who control more than 10% of the Company
stock) at the date of grant, as determined by the Board of Directors.

The
2001 Plan allows the Company to grant non-statutory stock options to employees, directors and consultants at a price to be determined by the Board of Directors. The term
of the option is determined by the Board of Directors on the date of grant but shall not be longer than 10 years. Options under this plan generally vest over four years, and all options expire
after 10 years. The 2001 Plan allows the Company to grant SPRs to employees and consultants. Sales of stock under SPRs are made pursuant to restricted stock purchase agreements containing
provisions established by the Board of Directors. The Company has a right, but not the obligation, to repurchase the shares at the original

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 8. Stock Option and Purchase Plans (Continued)

sale
price, which expires at a rate to be determined by the Board of Directors. As of December 31, 2009, no SPRs have been granted under the 2001 Plan.

Under
the 2001 Plan, non-employee directors will receive an option to purchase 32,000 shares of common stock when they join the Board of Directors. These options vest 25%
after one year and 25% annually thereafter. Each non-employee director shall automatically receive an option to purchase 8,000 shares of the Company's common stock annually upon their
reelection and these options are fully exercisable ratably over eight months. Non-employee directors are also eligible to receive additional stock option grants.

On
March 29, 2010, the Company's Board of Directors terminated the 2001 Plan. In addition, the Board of Directors adopted and approved a new 2010 Equity Incentive Plan, or the
2010 Plan, with 32,000 shares remaining reserved and unissued under the 2001 Plan, subject to the approval of the Company's stockholders. The 2001 Plan, however, continues to govern awards previously
granted under it. On June 25, 2010, the Company's stockholders approved the 2010 Plan at the Company's 2010 Annual Meeting of Stockholders. The 2010 Plan provides for the grant of stock
options, stock appreciation rights, restricted stock, restricted stock units, performance shares and performance units to employees, directors and consultants, to be granted from time to time as
determined by the Board of Directors, the Compensation Committee of the Board of Directors, or its designees. The term of the option is determined by the Board of Directors on the date of grant but
shall not be longer than 10 years. Options under this plan generally vest over four years, and all options expire after 10 years. The 2010 Plan's share reserve, which the stockholders
approved, is 8,400,000 shares, plus any shares reserved but not issued pursuant to awards under the 2001 Plan as of the date of stockholder approval, or 99,975 shares, plus any shares subject to
outstanding awards under the 2001 Plan that expire or otherwise terminate without having been exercised in full, or are forfeited to or repurchased by the Company, up to a maximum of 8,111,273 shares
(which was the number of shares subject to outstanding options under the 2001 Plan as of March 11, 2010). Awards exercisable for 274,750 shares were granted in the year ended
December 31, 2010 pursuant to the 2010 Plan.

On
April 30, 2010, the Company's Board of Directors granted an option to purchase 400,000 shares of the Company's common stock, or the Inducement Grant, to Michael P. Miller, the
Company's new Senior Vice President and Chief Commercial Officer. The Inducement Grant was granted outside of the Company's 2010 Plan and without stockholder approval pursuant to NASDAQ Listing
Rule 5635(c)(4) and is subject to the terms and conditions of the Stand-Alone Stock Option Agreement between the Company and Michael P. Miller.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 8. Stock Option and Purchase Plans (Continued)

A
summary of stock option award activity under these plans is as follows:

Years Ended December 31,2010

2009

2008Number of
Shares

Weighted-
Average
Exercise
Price

Number of
Shares

Weighted-
Average
Exercise
Price

Number of
Shares

Weighted-
Average
Exercise
PriceBalance at beginning of year


7,553,776

$
4.74


6,107,304

$
4.80


5,348,501

$
4.25Options:Granted


1,729,135

$
9.37


2,132,382

$
4.62


1,557,058

$
6.05Exercised


(982,594
)
$
4.34


(491,134
)
$
4.79


(698,262
)
$
3.40Cancelled


(381,304
)
$
6.66


(194,776
)
$
5.01


(99,993
)
$
4.52Balance at end of year


7,919,013

$
5.71


7,553,776

$
4.74


6,107,304

$
4.80Exercisable at end of year


5,171,827

$
4.82


4,493,391

$
4.63


3,739,766

$
4.52Weighted average grant-date fair value of options granted during the year




$
5.74




$
2.72




$
3.33


Restricted Stock Units

On July 12, 2006, the Board of Directors adopted an amendment to the 2001 Plan to add the ability to issue Restricted Stock
Units, or RSUs, under the 2001 Plan. In contrast to restricted stock awards, the RSUs represent an obligation of the Company to issue unrestricted shares of common stock or cash to the grantee only
when and to the extent that the vesting criteria of the award are satisfied. As in the case of restricted stock awards, vesting criteria for RSUs can be based on time or other conditions specified by
the Board or an authorized committee of the Board. However, until vesting occurs, the grantee is not entitled to any stockholder rights with respect to the unvested shares. Upon vesting of an RSU, the
recipient receives one share of VIVUS stock for each vested restricted stock unit or a cash payment for the value thereof. The Company, in its sole discretion, may pay earned RSUs in cash, shares, or
a combination thereof. Shares represented by RSUs that are fully paid in cash again will be available for grant under the Plan. The Company issues new shares for settlement of vested restricted stock
units and exercises of stock options. The Company does not have a policy of purchasing its shares relating to its share-based programs.

There
were no restricted stock units outstanding as of December 31, 2010.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 8. Stock Option and Purchase Plans (Continued)

Summary of Stock Options

At December 31, 2010, stock options were outstanding and exercisable as follows:

Options Outstanding

Options ExercisableRange of Exercise Prices

Number
Outstanding at
December 31,
2010

Weighted-
Average
Remaining
Contractual Life

Weighted-
Average
Exercise
Price

Number
Exercisable
December 31,
2010

Weighted-
Average
Exercise
Price$2.95 - $4.23


2,924,866

6.1 years

$
3.96


2,147,755

$
3.87$4.25 - $6.05


2,938,682

5.8 years

$
5.13


2,570,273

$
5.04$6.10 - $10.19


2,055,465

8.2 years

$
9.03


453,799

$
8.09$2.95 - $10.19


7,919,013

6.5 years

$
5.71


5,171,827

$
4.82


The
aggregate intrinsic value of outstanding options as of December 31, 2010 was $29.5 million, of which $23.5 million related to exercisable options.

At
December 31, 2010, 8,511,624 options remain available for grant. On January 21, 2011, the Company granted 1,265,790 of these options. During the year ended
December 31, 2010, in accordance with the terms of the 2010 Plan, the Company transferred a net total of 285,649 expired plan shares to the 2010 Plan.

Stock Purchase Plan

Under the 1994 Employee Stock Purchase Plan, or the Stock Purchase Plan, the Company reserved 800,000 shares of common stock for
issuance to employees pursuant to the Stock Purchase Plan, under which eligible employees may authorize payroll deductions of up to 10% of their base compensation (as defined) to purchase common stock
at a price equal to 85% of the lower of the fair market value as of the beginning or the end of the offering period.

At
the annual meeting held on June 4, 2003, the stockholders approved amendments to the Stock Purchase Plan to (i) extend the original term of the Stock Purchase Plan by an
additional 10 years such that the Stock Purchase Plan will now expire in April 2014 (subject to earlier termination as described in the Stock Purchase Plan) and (ii) increase the number
of shares of common stock reserved for issuance under the Stock Purchase Plan by 600,000 shares to a new total of 1,400,000 (collectively referred to herein as the 1994 Purchase Plan Amendments).

As
of December 31, 2010, 1,327,628 shares have been issued to employees and there are 72,372 shares available for issuance under the Employee Stock Purchase Plan. The weighted
average fair value of shares issued under the Stock Purchase Plan in 2010, 2009 and 2008 was $3.60, $2.34 and $1.76 per share, respectively.

Share-based Compensation Expense

The Company accounts for share-based compensation in accordance with SFAS No. 123R,Share-Based
Payment, as codified in FASB ASC topic 718,CompensationStock Compensation, or ASC 718, which was adopted
January 1, 2006, utilizing the modified prospective transition method.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 8. Stock Option and Purchase Plans (Continued)

Total
estimated share-based compensation expense, related to all of the Company's share-based awards, recognized for the years ended December 31, 2010, 2009 and 2008 was comprised
as follows (in thousands, except per share data):

2010

2009

2008Continuing Operations:Research and development

$
1,204

$
921

$
1,476General and administrative


5,240


3,006


2,4736,444


3,927


3,949Discontinued Operations:Cost of goods sold and manufacturing


810


688


602Selling, general and administrative


159


176


167969


864


769Share-based compensation expense before taxes


7,413


4,791


4,718Related income tax benefits








Share-based compensation expense, net of taxes

$
7,413

$
4,791

$
4,718Net share-based compensation expense, per common share:Basic and diluted

$
0.09

$
0.07

$
0.07


Stock-based
compensation expense for continuing and discontinued operations for the year ended December 31, 2010 included $7.3 million related to stock options and $141,000
related to the employee stock purchase plan, net of the estimated forfeitures. Stock-based compensation expense for continuing and discontinued operations for the year ended December 31, 2009
included $4.6 million related to stock options and $181,000 related to the employee stock purchase plan, net of the estimated forfeitures.

As
of December 31, 2010, unrecognized estimated compensation expense totaled $5.9 million related to non-vested stock options and $81,000 related to the
employee stock purchase plan. The weighted average remaining requisite service period of the non-vested options was 1.2 years and of the employee stock purchase plan was
4.5 months.

Valuation Assumptions

The fair value of each option award is estimated on the grant date using a Black-Scholes option-pricing model that uses the weighted
average assumptions noted in the following table. Prior to January 1, 2008, the Company calculated the estimated life of stock options granted using a "simplified" method, which is based on the
average of the vesting term and the term of the option, as a result of guidance from the SEC, as contained in Staff Accounting Bulletin No. 107 permitting the initial use of this method.
Effective January 1, 2008, the expected term, which represents the period of time that options granted are expected to be outstanding, is derived by analyzing the historical experience of
similar awards, giving consideration to the contractual terms of the stock-based awards, vesting schedules and expectations of future employee behavior. Expected volatilities are estimated using the
historical share price performance over the expected term of the option. The Company also considers other factors such as its planned clinical trials and other company activities that may affect

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 8. Stock Option and Purchase Plans (Continued)

the
volatility of VIVUS' stock in the future but determined that at this time, the historical volatility was more indicative of expected future stock price volatility. The risk-free
interest rate for the period matching the expected term of the option is based on the U.S. Treasury yield curve in effect at the time of the grant. The Black-Scholes Model also requires a single
expected dividend yield as an input. The Company does not anticipate paying any dividends in the near future. The Company develops pre-vesting forfeiture assumptions based on an analysis
of historical data.

The
following table sets forth information about the weighted-average assumptions used for options granted in the years ended December 31, 2010, 2009 and 2008:

2010

2009

2008Expected life (in years)


5.82


5.67


5.58Volatility


67.72
%

65.49
%

59.92
%Risk-free interest rate


2.59
%

2.14
%

2.73
%Dividend yield











Note 9. Agreements

In 2001, VIVUS entered into a Development, Licensing and Supply Agreement with Tanabe for the development of avanafil, an oral PDE5 inhibitor investigational drug candidate for the
treatment of erectile dysfunction. In October 2007, Tanabe and Mitsubishi Pharma Corporation completed their merger and announced their name change to Mitsubishi Tanabe Pharma Corporation, or MTPC.
Under the terms of the 2001 Development, Licensing and Supply Agreement with Tanabe, the Company paid a $2 million license fee obligation to Tanabe in the year ended December 31, 2006.
No payments were made under this agreement with MTPC in the year ended December 31, 2008; however, the Company paid MTPC $4 million in January 2009 following the enrollment in December
2008 of the first patient in the first Phase 3 clinical study. The Company expects to make other substantial payments to MTPC in accordance with its agreements with MTPC as the Company
continues to develop and, if approved for sale, commercialize avanafil for the oral treatment of male sexual dysfunction. Such potential future milestone payments total $15 million in the
aggregate and include payments upon: the first submission of an NDA, expected in the second quarter of 2011; obtainment of the first regulatory approval in the U.S. and any major European country; and
achievement of $250 million or more in calendar year sales.

The
term of the MTPC agreement is based on a country-by-country and on a product-by-product basis. The term shall continue until the later
of (i) 10 years after the date of the first sale for a particular product, or (ii) the expiration of the last-to-expire patents within the MTPC patents
covering such product in such country. In the event that the Company's product is deemed to be (i) insufficiently effective or insufficiently safe relative to other PDE5 inhibitor compounds
based on published information, or (ii) not economically feasible to develop due to unforeseen regulatory hurdles or costs as measured by standards common in the pharmaceutical industry for
this type of product, the Company has the right to terminate the agreement with MTPC with respect to such product.

On
October 16, 2001, the Company entered into an assignment agreement, or the Assignment Agreement, with Thomas Najarian, M.D. for a combination of pharmaceutical agents for the
treatment of obesity and other disorders, or the Combination Therapy, that has since been the focus of our investigational drug candidate development program for QNEXA for the treatment of obesity,
obstructive sleep apnea and diabetes. The Combination Therapy and all related patent applications, or

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 9. Agreements (Continued)

the
Patents, were transferred to the Company with worldwide rights to develop and commercialize the Combination Therapy and exploit the Patents. Pursuant to the Assignment Agreement, the Company has
paid a total of $220,000 to Dr. Najarian through December 31, 2010 and has issued him options to purchase 40,000 shares of our common stock. The Company is obligated under the terms of
the Assignment Agreement to make a milestone payment of $1 million and issue an option to purchase 20,000 shares of VIVUS' common stock to Dr. Najarian upon marketing approval by the FDA
of a product for the treatment of obesity that is based upon the Combination Therapy and Patents. The Assignment Agreement will require the Company to pay royalties on worldwide net sales of a product
for the treatment of obesity that is based upon the Combination Therapy and Patents until the last-to-expire of the assigned Patents. To the extent that the Company decides not
to commercially exploit the Patents, the Assignment Agreement will terminate and the Combination Therapy and Patents will be assigned back to Dr. Najarian. In 2006, Dr. Najarian joined
the Company as a part-time employee and currently serves as a Principal Scientist.

Note 10. Interest and Other Income, net

The components of interest and other income, net were as follows (in thousands):

Years Ended December 31,2010

2009

2008Interest income

$
219

$
913

$
5,385Realized gains (losses) on marketable securities, net


5


1,085


(979
)Therapeutic discovery grant


244





Interest and other income, net

$
468

$
1,998

$
4,406


Note 11. Comprehensive Income (Loss)

Comprehensive income (loss) consisted of the following (in thousands):

Years Ended December 31,2010

2009

2008Net loss

$
(66,065
)
$
(54,291
)
$
(9,940
)Unrealized gain (loss) on securities, net of taxes


7


(357
)

422Total comprehensive loss

$
(66,058
)
$
(54,648
)
$
(9,518
)


Note 12. Commitments

Lease Commitments

In November 2006, the Company entered into a 30-month lease for its corporate headquarters located in Mountain View,
California. The lease commenced on February 1, 2007. The base monthly rent was set at $1.85 per square foot or $26,000 per month. The lease expired on July 31, 2009. On
December 16, 2008, the Company entered into a first amendment to this lease. Under the terms of the amended lease, it continues to lease the office space for its corporate headquarters for a
two-year period commencing on August 1, 2009 and expiring on July 31, 2011. The base monthly rent was set at

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Note 12. Commitments (Continued)

$1.64
per square foot or $23,000 per month. The amended lease allowed the Company one option to extend the term of the lease for one year from the expiration of the lease. On November 12, 2009,
the Company entered into a second amendment to this lease. The second amendment commenced on January 1, 2010, expires on July 31, 2011 and expands the leased space. The base rent for the
expansion space was set at $2.25 per square foot or $8,500 per month. The option to extend the term of the amended lease for one year from the expiration of the lease applies to this expansion space
as well. In December 2010, the Company entered into a third amendment to this lease. The third amendment extended the lease term for the original premises and the expansion space for a period of
twelve months commencing August 1, 2011 and terminating July 31, 2012. Under the third amendment, the base rent for the original space will be set at $1.69 per square foot or $24,000 per
month and the base rent for the expansion space will be set at $2.31 per square foot or $8,700 per month. The amended lease allows the Company one additional option to extend the term of the lease for
one year from the expiration of the lease. The option to extend the term of the amended lease for one year from the expiration of the lease applies to this expansion space as well.

Future
minimum lease payments under operating leases are as follows (in thousands):

2011

$
6852012


406Total

$
1,091


Rent
expense under operating leases totaled $676,000, $531,000 and $549,000 for the years ended December 31, 2010, 2009 and 2008, respectively.

Other Agreements

The Company has entered into various agreements with clinical consultants and clinical research organizations to perform clinical
studies on its behalf and at December 31, 2010, its remaining commitment under these agreements totaled $6.6 million. The Company has remaining commitments under various general and
administrative services agreements totaling $3 million at December 31, 2010, including $1.5 million related to Leland F. Wilson's Employment Agreement (see paragraph below). The
Company has also entered into various agreements with research consultants and other contractors to perform regulatory services, drug research and testing and, at December 31, 2010, its
remaining commitment under these agreements totaled $3.6 million.

On
December 19, 2007, the Compensation Committee of the Board of Directors of the Company approved an employment agreement, or the Employment Agreement, with Leland F. Wilson, the
Company's President and Chief Executive Officer. The Employment Agreement includes salary, incentive compensation, retirement benefits and length of employment, among other items, as agreed to with
Mr. Wilson. The Employment Agreement had an initial term of two years commencing on the effective date, June 1, 2007, or the Effective Date. On January 23, 2009, the Compensation
Committee approved an amendment to the Employment Agreement, or the Amendment, which amends the Employment Agreement. Pursuant to the Amendment, the initial term of the Employment Agreement was
increased from two to three years commencing on June 1, 2007 and other relevant dates were also extended to reflect the three-year initial term. On January 21, 2011, the
Compensation Committee approved the second amendment to Mr. Wilson's Employment Agreement. Pursuant to the second

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Note 12. Commitments (Continued)

amendment,
the initial term of the Employment Agreement is increased to four years commencing on June 1, 2007.

Indemnifications

In the normal course of business, the Company provides indemnifications of varying scope to certain customers against claims of
intellectual property infringement made by third parties arising from the use of its products and to its clinical research organizations and investigator sites against liabilities incurred in
connection with any third-party claim arising from the work performed on behalf of the Company, among others. Historically, costs related to these indemnification provisions have not been significant
and the Company is unable to estimate the maximum potential impact of these indemnification provisions on its future results of operations.

Pursuant
to the terms of the Asset Purchase Agreement for the sale of the Evamist product to K-V, the Company made certain representations and warranties concerning its
rights and assets related to Evamist and the Company's authority to enter into and consummate the transaction. The Company also made certain covenants that survive the closing date of the transaction,
including a covenant not to operate a business that competes, in the U.S., and its territories and protectorates, with the Evamist product. See Note 16: "Legal Matters" for further information
regarding Acrux.

Pursuant
to the terms of the Asset Purchase Agreement, (see Note 3: "Discontinued Operations"), the Company entered into with Meda AB, or Meda, to sell certain of the assets
related to the MUSE business to Meda, or the MUSE Transaction, the Company agreed to indemnify Meda in connection with the representations and warranties that it made concerning its rights,
liabilities and assets related to the MUSE business and its authority to enter into and consummate the MUSE Transaction. The Company also made certain covenants in the Asset Purchase Agreement which
survive the closing of
the MUSE Transaction, including a three year covenant not to develop, manufacture, promote or commercialize a trans-urethral erectile dysfunction drug.

To
the extent permitted under Delaware law, the Company has agreements whereby it indemnifies its officers and directors for certain events or occurrences while the officer or director
is, or was, serving at the Company's request in such capacity. The indemnification period covers all pertinent events and occurrences during the officer's or director's lifetime. The maximum potential
amount of future payments the Company could be required to make under these indemnification agreements is unlimited; however, the Company maintains director and officer insurance coverage that reduces
its exposure and enables the Company to recover a portion of any future amounts paid. The Company believes the estimated fair value of these indemnification agreements in excess of applicable
insurance coverage is minimal.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 13. Income Taxes

Deferred income taxes result from differences in the recognition of expenses for tax and financial reporting purposes, as well as operating loss and tax credit carryforwards. Significant
components of the Company's deferred income tax assets as of December 31, 2010 and 2009 are as follows (in thousands):

2010

2009Deferred tax assets:Net operating loss carry forwards

$
85,518

$
63,836Research and development credit carry forwards


14,120


12,251Inventory reserve





603Accruals and other


10,073


8,021Depreciation


3,393


5,816Deferred revenue





483113,104


91,010Valuation allowance


(113,104
)

(91,010
)Total

$


$



The
Company makes certain estimates and judgments in determining income tax expense for financial statement purposes. These estimates and judgments occur in the calculation of certain
tax assets and liabilities, which arise from differences in the timing of recognition of revenue and expense for tax and financial statement purposes.

As
part of the process of preparing its consolidated financial statements, the Company is required to estimate its income taxes in each of the jurisdictions in which it operates. This
process involves estimating its current tax exposure under the most recent tax laws and assessing temporary differences resulting from differing treatment of items for tax and accounting purposes. The
differences result in deferred tax assets and liabilities, which are included in the Company's consolidated balance sheets.

The
Company assesses the likelihood that it will be able to recover its deferred tax assets. The Company considers all available evidence, both positive and negative, including
historical levels of income, expectations and risks associated with estimates of future taxable income and ongoing prudent and feasible tax planning strategies in assessing the need for a valuation
allowance. If it is not more likely than not that the Company will recover its deferred tax assets, the Company will increase its provision for taxes by recording a valuation allowance against the
deferred tax assets that the Company estimates will not ultimately be recoverable. As a result of the Company's analysis of all available evidence, both positive and negative, as of
December 31, 2010, it was considered more likely than not that the Company's deferred tax assets would not be realized. However, should there be a change in the Company's ability to recover its
deferred tax assets, the Company would recognize a benefit to its tax provision in the period in which the Company determines that it is more likely than not that it can recover its deferred tax
assets.

The
net increase in the valuation allowance for the years ended December 31, 2010, 2009 and 2008 was $22.1 million, $23.7 million and $4.1 million,
respectively. As of December 31, 2010, the Company had no significant deferred tax liabilities.

For
federal and state income tax reporting purposes, respective net operating loss, or NOL, carryforwards of approximately $234.5 million and $54.3 million are available to
reduce future taxable income, if any. ASC 718 prohibits recognition of a deferred income tax asset for excess tax benefits due

150

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Table of Contents

VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 13. Income Taxes (Continued)

to
stock option exercises that have not yet been realized through a reduction in income taxes payable. Post-adoption of ASC 718, the unrecognized deferred tax benefits totaled
$2.8 million, of which $81,000 have been accounted for as a credit to additional paid-in capital, as they have been realized through a reduction in income taxes payable. For federal
and state income tax reporting purposes, respective credit carryforwards of approximately $13.2 million and $2.9 million are available to reduce future taxable income, if any. These net
operating loss and tax credit carryforwards, except for the California research and development credit, expire on various dates through 2030. The California research and development credits do not
expire. The Internal Revenue Code of 1986, as
amended, contains provisions that may limit the net operating loss and credit carryforwards available for use in any given period upon the occurrence of certain events, including a significant change
in ownership interest.

The
(benefit)/provision for income taxes is based upon (loss)/income from continuing operations before (benefit)/provision for income taxes as follows, for the years ended
December 31, 2010, 2009 and 2008 (in thousands):

2010

2009

2008Loss before income taxes:Domestic

$
(75,425
)
$
(55,764
)
$
(9,128
)International








19Loss before taxes

$
(75,425
)
$
(55,764
)
$
(9,147
)


The
(benefit)/provision for income taxes consists of the following components for the years ended December 31, 2010, 2009 and 2008 (in thousands):

Continuing
Operations:

2010

2009

2008CurrentFederal

$


$
(2,380
)
$
(8
)State


9


1


1Foreign








Total current (benefit)/provision for income taxes

$
9

$
(2,379
)
$
(7
)DeferredFederal

$


$


$
State








Foreign








Total deferred benefit for income taxes

$


$


$
Total (benefit)/provision for income taxes from continuing operations

$
9

$
(2,379
)
$
(7
)


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Table of Contents

VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 13. Income Taxes (Continued)

Discontinued
Operations:

2010

2009

2008Total (benefit)/provision for income taxes from discontinued operations

$
29

$
(61
)
$
10


A
reconciliation between the U.S. federal statutory tax rate and the Company's effective tax rate from continuing operations is as follows, for the years ended December 31, 2010,
2009 and 2008:

2010

2009

2008Tax at U.S. federal statutory rate


(35
)%

(35
)%

(35
)%Change in valuation allowance


35


39


35Permanent items


1


1


10Extinguishment of debt


3





Tax credits


(4
)

(5
)

(10
)Refund of prior taxes





(4
)

Effective tax rate


0
%

(4
)%

0
%


Effective
January 1, 2007, the Company adopted Financial Accounting Standards Interpretation, or FIN, No. 48,Accounting for Uncertainty in Income
Taxesan interpretation of FASB Statement No. 109, as codified in FASB ASC topic 740,Income Taxes, or ASC
740, which prescribes a recognition threshold and measurement attribute for the financial statement recognition and measurement of uncertain tax positions taken or expected to be taken in a company's
income tax return, and also provides guidance on derecognition, classification, interest and penalties, accounting in interim periods, disclosure, and transition. ASC 740-10 utilizes a
two-step approach for evaluating uncertain tax positions accounted for in accordance with SFAS No. 109,Accounting for Income Taxes,
also as codified in ASC 740. Step one, Recognition, requires a company to determine if the weight of available evidence indicates that a tax position is more likely than not to be sustained upon
audit, including resolution of related appeals or litigation processes, if any. Step two, Measurement, is based on the largest amount of benefit, which is more likely than not to be realized on
ultimate settlement.

The
total gross unrecognized tax benefits as of December 31, 2010 is $1.2 million and relates to state tax exposures, of which $7,000 would affect the effective tax rate if
recognized.

A
reconciliation of the beginning and ending amount of unrecognized tax benefits in 2010 and 2009 is as follows (in thousands):

2010

2009

2008Unrecognized tax benefits as of January 1

$


$


$
Gross increase for tax positions of prior years


1,171





Gross decrease for tax positions of prior years








Gross increase for tax positions of current year








Gross decrease for tax positions of current year








Settlements








Lapse of statute of limitations








Unrecognized tax benefits balance at December 31

$
1,171

$


$



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Table of Contents

VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 13. Income Taxes (Continued)

The total unrecognized tax benefits as of December 31, 2010 include approximately $1.2 million of unrecognized tax benefits that have been netted against the related
deferred tax assets. The remaining balance recorded on the Company's consolidated balance sheets in 2010 and 2009 is as follows (in thousands):

2010

2009Total unrecognized tax benefits balance

$
1,171

$
Amounts netted against deferred tax assets


(1,164
)

Unrecognized tax benefits recorded on consolidated balance sheets

$
7

$



The
Company recognizes interest and penalties accrued on any unrecognized tax benefits as a component of its provision for income taxes. As of January 1, 2010, the Company had no
accrual for payment of interest and penalties related to unrecognized tax benefits. To the extent accrued interest and penalties do not ultimately become payable, amounts accrued will be reduced and
reflected as a reduction of the overall income tax provision in the period that such determination is made. During 2010, $1,000 of interest was recognized.

Although
the Company files U.S. federal, various state, and foreign tax returns, the Company's only major tax jurisdictions are the U.S., California and New Jersey. The Company's
income tax return for the year ended December 31, 2007 is currently under examination by the California Franchise Tax Board. Based on the progress of the audit to date, the Company believes
adjustments may be made in early years that will reduce tax attributes available to offset tax due in 2007. Therefore, the Company has increased their unrecognized tax benefits to $7,000 for the year
ended December 31, 2010.

The
Company's income tax return for the years ended December 31, 2007 and 2008 are currently under examination by the Internal Revenue Service. Because the Company used net
operating loss carryforwards and other tax attributes to offset its taxable income in on its 2007 income tax returns for U.S. Federal and California, such attributes can be adjusted by these taxing
authorities until the statute closes on the year in which such attributes were utilized. Tax years 1991 to 2009 remain subject to examination by the appropriate governmental agencies due to tax loss
carryovers from those years.

The
Company is in various stages of the examination process in connection with all of its tax audits and it is difficult to determine when these examinations will be settled. It is
reasonably possible that over the next twelve-month period the Company may experience an increase or decrease in its unrecognized tax benefits. It is not possible to determine either the magnitude or
range of any increase or decrease at this time.

Note 14. Concentration of Suppliers

The Company relies on third party sole-source manufacturers to produce its clinical trial materials, components and raw materials. Third party manufacturers may not be able
to meet the Company's needs with respect to timing, quantity or quality. Several of the Company's manufacturers are sole-source manufacturers where no alternative suppliers exist. For the
years ended December 31, 2010, 2009 and 2008, the Company incurred $7.8 million, $19.1 million and $44.7 million, respectively, for services provided by one clinical
research organization on the QNEXA Phase 3 studies, which represented 20%, 27% and 58%, respectively, of the Company's total research and development expenses. Separately, the Company incurred
another $8.2 million and $17 million for services provided

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Table of Contents

VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 14. Concentration of Suppliers (Continued)

by
another clinical research organization on the avanafil Phase 3 studies, which represented 20% and 24% of the Company's total research and development expenses for the years ended
December 31, 2010 and 2009, respectively. For the years ended December 31, 2010, 2009 and 2008, the Company incurred $4.9 million, $7.8 million and $6.2 million,
respectively, for clinical supplies and formulation work performed by the Company's sole-source manufacturer, which represented 12%, 11% and 8%, respectively, of the Company's total
research and development expenses.

Note 15. 401(k) Plan

All of the Company's full-time employees are eligible to participate in the VIVUS 401(k) Plan. The employer-matching portion of the 401(k) plan began on July 1, 2000.
Employer-matching contributions for the years ended December 31, 2010, 2009 and 2008 were as follows (in thousands):

2010

2009

2008Continuing Operations:Research and development

$
90

$
92

$
63General and administrative


105


63


49195


155


112Discontinued Operations:Cost of goods sold and manufacturing


121


122


101Selling, general and administrative


37


40


33158


162


134Total 401(k) Plan employer-matching contributions

$
353

$
317

$
246


Note 16. Legal Matters

In the normal course of business, the Company receives claims and makes inquiries regarding patent infringement and other related legal matters. The Company believes that it has
meritorious claims and defenses and intends to pursue any such matters vigorously.



The Company and Acrux Limited, through its wholly owned subsidiary FemPharm Pty Ltd., or Acrux, were parties to the Testosterone
Development and Commercialization Agreement dated February 12, 2004, or the Testosterone Agreement. The Testosterone Agreement covers the Company's investigational product candidate, Luramist,
which was licensed from Acrux under the Testosterone Agreement. On November 5, 2007, Acrux made a demand for arbitration under the Testosterone Agreement regarding certain claims related to
Luramist. Acrux's demand sought a reversion of all rights assigned to the Company related to Luramist, monetary damages and the payment of a milestone payment for Luramist under the Testosterone
Agreement and declaratory relief. The Company asserted counterclaims against Acrux in the arbitration and sought the enforcement of the Company's rights under the Testosterone Agreement. The
arbitration hearing concluded on January 23, 2009, and on April 6, 2009 the panel of arbitrators, or the Panel, issued its Interim Arbitration Award finding in favor of the Company that
it was in compliance with the Testosterone Agreement and denying all of the relief sought by Acrux in its demand. The Panel found that the Company was not in breach of the

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VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 16. Legal Matters (Continued)

Luramist
license agreement and that the Company had used diligent, commercially reasonable efforts to develop Luramist. The Panel further ruled in favor of the Company on its counterclaim that Acrux
had breached the Luramist license agreement by failing to provide certain know-how and certain improvements in the formulation and delivery device for Luramist. The Panel denied the Acrux
claim for additional milestone payments. The Panel ordered Acrux to turn over certain information to the Company that was previously withheld in violation of the agreement by Acrux. After the parties
failed to agree on a new Outside Date by which the Company was to commence its first Phase 3 trial for Luramist, the Panel reset the Outside Date of April 30, 2006 to April 1,
2010 to reflect the regulatory environment.

On
March 30, 2010, the Company provided written notice to Acrux of its intent to terminate the Testosterone Agreement. On April 6, 2010, in connection with Acrux's request
for further briefing on the issue of damages in light of the Company's termination of the Testosterone Agreement, the Panel ordered the parties to enter into settlement discussions. On May 6,
2010, the parties agreed to the terms of a settlement agreement and mutual release, or the Settlement Agreement, resolving any and all claims or potential claims in the arbitration and that may have
or could have arisen from any case whatsoever, other than certain rights and obligations that survive the termination of the Testosterone Agreement or are required by the Settlement Agreement.
Pursuant to the Settlement Agreement, the Company transferred Luramist-related assets to Acrux, including clinical trial material, batch release documents, inventory of applicators, FDA
correspondence, intellectual property and know-how and trademarks. In addition, the Company ceased its clinical study program for Luramist as part of the settlement. The parties did not
exchange cash payments as a result of the settlement and termination of the Testosterone Agreement. The Panel retains jurisdiction over the matter to enforce the terms of the Settlement Agreement.



A federal securities class action lawsuit captionedKovtun v. Vivus, Inc., et
al.is pending in the U.S. District Court, Northern District of California, which asserts claims for violations of Section 10(b) and 20(a) of the federal securities
laws, purportedly relating to statements allegedly made by the Company in connection with its New Drug Application, or NDA, for QNEXA as a treatment for obesity. The essential factual allegation is
that the Company and its officers misled the investing public regarding the prospects for QNEXA's NDA approval, and the drug's efficacy and safety. On February 2, 2011, the court granted a
stipulation and order appointing a lead plaintiff and a lead counsel for the class. On February 3, 2011, the court granted a stipulation and order requiring the lead plaintiff to file any
amendment to the operative complaint no later than 60 days from February 2, 2011, with the defendants' answer or motion to dismiss to be filed no later than 60 days after
plaintiffs file the amended complaint. In the event the defendants file a motion to dismiss, plaintiffs' opposition to such motion must be filed no later than 60 days after the filing of
the motion, with defendants' reply to the opposition being filed no later than 45 days after the filing of plaintiffs' opposition. Discovery is stayed in the Kovtunmatter pending resolution of the
defendants' motion to dismiss.

Also
pending in the U.S. District Court, Northern District of California and formally related to theKovtunmatter is a shareholder
derivative action captionedTurberg v. Logan, et al., which restates the allegations inKovtunby
claiming that certain of the Company's officers and directors caused or allowed the Company to violate the federal securities laws by issuing material misrepresentations to the investing public. On
February 7, 2011, the court granted a stipulation and order requiring plaintiffs to

155

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Table of Contents

VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 16. Legal Matters (Continued)

file
and serve any amendment to the complaint no later than 60 days from the filing of the consolidated amended complaint in theKovtunmatter,
with the defendants' answer or motion to dismiss to be filed no later than 60 days after the court enters an order ruling on defendants' motion to dismiss in the Kovtunmatter. In the event the
defendants file a motion to dismiss in theTurbergmatter, the
plaintiffs will have 60 days to oppose the motion and the defendants will have 45 days to reply to the plaintiffs' opposition. The court order stayed all discovery in the Turbergmatter
pending resolution of the defendants' motion to dismiss.

Additionally,
three separate shareholder derivative suits are pending in California Superior Court, Santa Clara County. The allegations in these shareholder derivative suits are nearly
identical to those in theTurbergfederal shareholder derivative action. On February 3, 2011, the court granted a stipulation and order
consolidating the three suits into the action captionedWilkinson v. Wilson, et al.and appointing a lead plaintiff and a lead counsel for the
shareholder derivative actions. The court order requires the plaintiffs to file and serve a consolidated complaint no later than 60 days from the court's order and the parties to meet and
confer on a briefing schedule for the defendants' motion to dismiss the consolidated complaint no later than 30 days from the service of the consolidated complaint.

The
Company believes that the allegations in the various federal and state actions have no merit and that the Company has meritorious defenses to the claims stated in such actions. The
Company intends to vigorously defend itself in the various actions. Although there may be no merit to such allegations or claims, the Company will be required to allocate monetary and personnel
resources to defend itself. The Company believes the disposition of the current lawsuits and claims is not likely to have a material effect on its financial condition or liquidity.

In
the ordinary course of business the Company may become involved in lawsuits and subject to various claims from current and former employees including wrongful termination, sexual
discrimination and employment matters. The Company is currently a party to a lawsuit involving a former employee. The Company has also been named as a potential defendant in a complaint filed by a
former employee. The Company has investigated each of the claims and believes the allegations have no merit and that the Company has meritorious defenses to such charges. Due to the current economic
downturn, employees may be more likely to file employment-related claims. Employment-related claims also may be more likely following a poor performance review. Although there may be no merit to such
claims or legal matters, the Company may be required to allocate additional monetary and personnel resources to defend against these type of allegations. The Company believes the disposition of the
current lawsuit and claims is not likely to have a material effect on its financial condition or liquidity.

The
Company is not aware of any other asserted or unasserted claims against it where an unfavorable resolution would have an adverse material impact on the operations or financial
position of the Company.

Note 17. Related Party Transactions

Mario M. Rosati, one of the Company's directors until June 13, 2008, is also a member of Wilson Sonsini Goodrich & Rosati, Professional Corporation, which has served as the
Company's outside corporate counsel since its formation and has received compensation at normal commercial rates for these services. During the year ended December 31, 2008, the Company paid
$758,000 to Wilson Sonsini Goodrich and Rosati for legal services. On April 17, 2008, Mr. Rosati notified the Company of

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Table of Contents

VIVUS, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Note 17. Related Party Transactions (Continued)

his
decision not to stand for re-election at the Company's 2008 annual meeting held on June 13, 2008 and is no longer a member of the Company's Board of Directors as of that date.

Note 18. Subsequent Events (Unaudited)

On January 19, 2011, the Company held an End-of-Review meeting with the FDA to discuss its planned response to the Complete Response Letter, or CRL,
received on October 28, 2010, regarding the New Drug Application, or NDA, for QNEXA as a treatment for obesity
and the Company's planned resubmission of the NDA for QNEXA. The CRL stated that in its current form, the NDA for QNEXA was not approvable. The FDA has requested that the Company assess the
feasibility of performing a retrospective observational study utilizing existing databases to review fetal outcomes including the historical incidence of congenital malformations with an interest in
oral cleft and low birth weight (less than 2,500 gm) in the offspring of women who received prophylaxis treatment with 100mg of topiramate for migraine during pregnancy, or the Feasibility Assessment,
which is currently in process.

Note 19. Selected Financial Data (Unaudited)

Selected Quarterly Financial Data (in thousands)

Quarter Ended,March 31

June 30

September 30

December 312010Revenue

$


$


$


$
Operating expenses

$
15,375

$
20,326

$
16,815

$
13,111Net loss from continuing operations

$
(16,609
)
$
(21,570
)
$
(18,136
)
$
(19,119
)Net income (loss) from discontinued operations

$
(2,209
)
$
(1,187
)
$
157

$
12,608Basic and diluted net income (loss) per share:Continuing operations

$
(0.21
)
$
(0.27
)
$
(0.22
)
$
(0.23
)Discontinued operations

$
(0.02
)
$
(0.01
)
$
0.00

$
0.152009Revenue

$
20,930

$
10,465

$


$
Operating expenses

$
24,043

$
23,065

$
20,496

$
17,206Net loss from continuing operations

$
(3,980
)
$
(12,748
)
$
(21,114
)
$
(15,543
)Net income (loss) from discontinued operations

$
(2,829
)
$
(456
)
$
48

$
2,331Basic and diluted net income (loss) per share:Continuing operations

$
(0.06
)
$
(0.18
)
$
(0.30
)
$
(0.19
)Discontinued operations

$
(0.04
)
$
(0.01
)
$
0.00

$
0.03


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Table of Contents

FINANCIAL STATEMENT SCHEDULE

The financial statement Schedule IIVALUATION AND QUALIFYING ACCOUNTS is filed as part of the
Form 10-K.

VIVUS, Inc.  SCHEDULE IIVALUATION AND QUALIFYING ACCOUNTS  (in thousands)

Each of the following valuation and qualifying accounts are reported as assets and liabilities of discontinued operations in the
consolidated balance sheets for all periods presented.

Balance at
Beginning of
Period

Charged
to
Operations

Charges
Utilized

Balance at
End of
PeriodAllowance for Doubtful AccountsFiscal year ended December 31, 2008

$
29

$
(6
)
$


$
23Fiscal year ended December 31, 2009


23


45


(41
)

27Fiscal year ended December 31, 2010


27


(7
)

(20
)

Inventory ReserveFiscal year ended December 31, 2008


1,664


213


(432
)(1)

1,445Fiscal year ended December 31, 2009


1,445


224


(95
)(2)

1,574Fiscal year ended December 31, 2010


1,574


(353
)

(1,221
)(3)

Accrued Product ReturnsFiscal year ended December 31, 2008


2,498


1,314


(947
)

2,865Fiscal year ended December 31, 2009


2,865


1,425


(1,264
)

3,026Fiscal year ended December 31, 2010


3,026


906


(1,334
)

2,598Accrued Chargebacks ReserveFiscal year ended December 31, 2008


1,314


4,081


(4,016
)

1,379Fiscal year ended December 31, 2009


1,379


4,538


(4,300
)

1,617Fiscal year ended December 31, 2010

$
1,617

$
3,103

$
(4,248
)
$
472


(1)The
Company used $67,000 of its fully reserved component parts inventory in production. The fully reserved inventory is charged to cost of goods sold at a
zero basis when used, which has a favorable impact on gross profit.(2)The
Company used $97,000 of its fully reserved component parts inventory in production. The fully reserved inventory is charged to cost of goods sold at a
zero basis when used, which has a favorable impact on gross profit.(3)The
Company used $98,000 of its fully reserved component parts inventory and $367,000 of its fully reserved raw materials inventory in production. The fully
reserved inventory is charged to cost of goods sold at a zero basis when used, which has a favorable impact on gross profit.


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Table of Contents

Item 9.Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

None.

Item 9A.Controls and Procedures

(a.)  Evaluation
of disclosure controls and procedures. We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed
in our Exchange Act reports is recorded, processed, summarized and reported within the timelines specified in the Securities and Exchange Commission's rules and forms, and that such information is
accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. In designing
and evaluating the disclosure controls and procedures, management recognized that any controls and procedures, no matter how well designed and operated, can only provide reasonable assurance of
achieving the desired control objectives, and in reaching a reasonable level of assurance, management necessarily was required to apply its judgment in evaluating the cost-benefit
relationship of possible controls and procedures.

As
required by SEC Rule 13a-15(b), the Company carried out an evaluation, under the supervision and with the participation of the Company's management, including the
Company's Chief Executive Officer and the Company's Chief Financial Officer, of the effectiveness of the design and operation of the Company's disclosure controls and procedures as of the end of the
year covered by this report. Based on the foregoing, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective at the reasonable
assurance level.

(b.)  Changes
in internal controls. During the fourth quarter of 2010, we sold certain of our rights and assets related to MUSE, our approved treatment for erectile
dysfunction. Most of the employees relating to MUSE in New Jersey were hired by the purchaser of MUSE. Certain functions that were previously performed by employees in New Jersey, such as payroll and
benefits processing, human resources, information systems, among other functions have been transferred to personnel at our headquarters in Mountain View, California. As a result, the responsibilities
for certain internal controls were modified, or transferred to personnel in Mountain View to maintain our existing internal controls over financial reporting. We have assessed the internal controls
over the key processes affected by the sale of MUSE and concluded that we have maintained adequate internal control over financial reporting.

Management's Annual Report on Internal Control Over Financial Reporting

Internal control over financial reporting refers to the process designed by, or under the supervision of, our Chief Executive Officer
and Chief Financial Officer, and effected by our Board of Directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted accounting principles, and includes those policies and procedures that:



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Table of Contents



Internal
control over financial reporting cannot provide absolute assurance of achieving financial reporting objectives because of its inherent limitations. Internal control over
financial reporting is a process that involves human diligence and compliance and is subject to lapses in judgment and breakdowns resulting from human failures. Internal control over financial
reporting also can be circumvented by collusion or improper management override. Because of such limitations, there is a risk that material misstatements may not be prevented or detected on a timely
basis by internal control over financial reporting. However, these inherent limitations are known features of the financial reporting process. Therefore, it is possible to design into the process
safeguards to reduce, though not eliminate, this risk. Management is responsible for establishing and maintaining adequate internal control over financial reporting for the company.

Management
has used the framework set forth in the report entitledInternal Control-Integrated Frameworkpublished by the Committee of
Sponsoring Organizations of the Treadway Commission, known as COSO, to evaluate the effectiveness of the Company's internal control over financial reporting. Based on this assessment, management has
concluded that our internal control over financial reporting was effective as of December 31, 2010. Odenberg Ullakko Muranishi & Co. LLP, the independent registered public
accounting firm that audited the consolidated financial statements included in the Annual Report on Form 10-K, has issued an attestation report on the effectiveness of our internal
control over financial reporting as of December 31, 2010. This report, which expresses an unqualified opinion on the effectiveness of our internal controls over financial reporting as of
December 31, 2010, is included herein.

There
has been no change in our internal controls over financial reporting during our most recent fiscal quarter that has materially affected, or is reasonably likely to materially
affect, our internal controls over financial reporting.

Item 9B.Other Information

None.

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Table of Contents

PART III

Item 10.Directors, Executive Officers and Corporate Governance

The information required by this item is hereby incorporated by reference from the information under the captions "Election of
Directors" and "Executive Officers" contained in the Company's definitive Proxy Statement, to be filed with the Securities and Exchange Commission no later than 120 days from the end of the
Company's last fiscal year in connection with the solicitation of proxies for its 2011 Annual Meeting of Stockholders. The information required by Section 16(a) is incorporated by reference
from the information under the caption "Compliance with Section 16(a) of the Securities Exchange Act of 1934" in the Proxy Statement.

The
Company has adopted a code of ethics that applies to its Chief Executive Officer, Chief Financial Officer, and to all of its other officers, directors, employees and agents. The code
of ethics is available at the Corporate Governance section of the Investor Relations page on the Company's website atwww.vivus.com. The Company intends
to disclose future amendments to, or waivers from, certain provision of its code of ethics on the above website within five business days following the date of such amendment or waiver.

Item 11.Executive Compensation

The information required by this item is incorporated by reference from the information under the caption "Executive Officer
Compensation" in the Company's Proxy Statement referred to in Item 10 above.

Item 12.Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

Equity Compensation Plans Approved by Stockholders

Information about our equity compensation plans at December 31, 2010 that were approved by our stockholders was as follows:

Plan Category

Number of Shares
to be issued Upon
Exercise of Outstanding
Options and Rights(a)

Weighted Average
Exercise Price of
Outstanding
Options

Number of Shares
Remaining
Available
for Future Issuance(c)Equity compensation plans approved by stockholders


7,519,013

$
5.47


8,583,996Equity compensation plans not approved by stockholders(b)


400,000

$
10.19


Total


7,919,013

$
5.71


8,583,996


(a)Consists
of three plans: our 1994 Stock Option Plan, our 2001 Stock Option Plan and our 2010 Stock Option Plan.(b)On
April 30, 2010, the Company's Board of Directors granted an option to purchase 400,000 shares of the Company's common stock, or the Inducement
Grant, to Michael P. Miller, the Company's new Senior Vice President and Chief Commercial Officer. The Inducement Grant was granted outside of the Company's 2010 Plan and without stockholder approval
pursuant to NASDAQ Listing Rule 5635(c)(4) and is subject to the terms and conditions of the Stand-Alone Stock Option Agreement between the Company and Michael P. Miller.(c)Includes
8,511,624 shares for the 2010 Stock Option Plan and 72,372 shares for the 1994 Employee Stock Purchase Plan.


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The
information required by this item is incorporated by reference from the information under the caption "Security Ownership of Certain Beneficial Owners and Management" in the
Company's Proxy Statement referred to in Item 10 above.

Item 13.Certain Relationships and Related Transactions, and Director Independence

The information required by this item is incorporated by reference from the information under the caption "Certain Relationships and
Related Transactions" in the Company's Proxy Statement referred to in Item 10 above.

Item 14.Principal Accounting Fees and Services

The information required by this item is incorporated by reference from the information under the caption "Ratification of Appointment
of Independent Auditors" in the Company's Proxy Statement referred to in Item 10 above.

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PART IV

Item 15.Exhibits and Financial Statement Schedules

(a)   Documents filed as part of this report.



The following Financial Statements of VIVUS, Inc. and Reports of Independent Registered Public Accounting Firm have been filed
as part of this Form 10-K. See index to Financial Statements under Item 8, above:



Reports of Independent Registered Public Accounting Firm

114Consolidated Balance Sheets as of December 31, 2010 and 2009

116Consolidated Statements of Operations for the years ended December 31, 2010, 2009 and 2008

117Consolidated Statements of Stockholders' Equity for the years ended December 31, 2010, 2009 and 2008

118Consolidated Statements of Cash Flows for the years ended December 31, 2010, 2009 and 2008

119Notes to Consolidated Financial Statements

120




The following financial statement schedule of VIVUS, Inc. as set forth on page 158 is filed as part of this
Form 10-K and should be read in conjunction with the Financial Statements of VIVUS, Inc. incorporated by reference herein:

Schedule IIValuation
and Qualifying Accounts

All
other schedules are omitted because they are not applicable or the required information is shown in the Financial Statements or the notes thereto.



(b)The list of Exhibits required by Item 601 of Regulation S-K are listed in the Exhibit Index immediately
preceding the exhibits and are incorporated herein.

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SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this
report to be signed on its behalf by the undersigned, thereunto duly authorized:

VIVUS, INC.,
a Delaware CorporationBy:

/s/ LELAND F. WILSON Leland F. Wilson Chief Executive Officer
(Principal Executive Officer)


Date:
February 28, 2011

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POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Leland F. Wilson
and Timothy E. Morris as his attorney-in-fact for him, in any and all capacities, to sign each amendment to this Report on Form 10-K, and to file the same,
with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact
or his substitute or substitutes may lawfully do or cause to be done by virtue hereof.

Pursuant
to the requirements of the Securities Exchange Act of 1934, this Report has been signed below by the following persons on behalf of the Registrant and in the capacities and on
the dates indicated:

Signature

Title

Date/s/ LELAND F. WILSON Leland F. Wilson

Chief Executive Officer (Principal Executive Officer) and Director

February 28, 2011/s/ MARK B. LOGAN Mark B. Logan

Chairman of the Board and Director

February 28, 2011/s/ PETER Y. TAM Peter Y. Tam

President and Director

February 28, 2011/s/ TIMOTHY E. MORRIS Timothy E. Morris

Senior Vice President of Finance and Chief Financial Officer (Principal Financial Officer)

February 28, 2011/s/ LEE B. PERRY Lee B. Perry

Vice President and Chief Accounting Officer (Principal Accounting Officer)

February 28, 2011/s/ CHARLES J. CASAMENTO Charles J. Casamento

Director

February 28, 2011/s/ LINDA M. DAIRIKI SHORTLIFFE, M.D. Linda M. Dairiki Shortliffe, M.D.

Director

February 28, 2011


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Table of Contents

VIVUS, INC.
REPORT ON FORM 10-K FOR
THE YEAR ENDED DECEMBER 31, 2010

INDEX TO EXHIBITS

Exhibit
Number

Description2.1
(1)
Asset Purchase Agreement between the Registrant and K-V Pharmaceutical Company dated as of March 30, 20073.1
(2)
Amended and Restated Certificate of Incorporation of the Registrant3.2
(3)
Amended and Restated Bylaws of the Registrant3.3
(4)
Amended and Restated Certificate of Designation of Rights, Preferences and Privileges of Series A Participating Preferred Stock of the Registrant4.1
(5)
Specimen Common Stock Certificate of the Registrant4.2
(6)
Preferred Stock Rights Agreement dated as of March 27, 2007 between the Registrant and Computershare Investor Services, LLC10.1
(7)*
Form of Indemnification Agreement by and among the Registrant and the Directors and Officers of the Registrant10.2
(8)*
1991 Incentive Stock Plan and Form of Agreement, as amended10.3
(9)*
1994 Employee Stock Purchase Plan and Form of Subscription Agreement10.4
(10)*
2001 Stock Option Plan and Form of Agreement thereunder10.5
(11)*
2001 Stock Option Plan, as amended on July 12, 200610.6
(12)*
Form of Notice of Grant and Restricted Stock Unit Agreement under the VIVUS, Inc. 2001 Stock Option Plan10.7

2010 Equity Incentive Plan and form of agreement thereunder10.8
(13)*
Stand-Alone Stock Option Agreement with Michael P. Miller dated as of April 30, 201010.9
(14)*
Employment Agreement dated December 20, 2007 between the Registrant and Leland F. Wilson10.10
(15)*
First Amendment to the Employment Agreement dated December 20, 2007 by and between the Registrant and Leland F. Wilson10.11
(16)*
Second Amendment to the Employment Agreement dated December 20, 2007 by and between the Registrant and Leland F. Wilson10.12
(17)*
Form of Change of Control and Severance Agreement by and between the Registrant and Certain of its Executive Officers10.13
(18)*
Form of Change of Control and Severance Agreement dated April 30, 2010 by and between the Registrant and Michael P. Miller10.14
(19)
Agreement effective as of December 28, 2000 between the Registrant and Tanabe Seiyaku Co., Ltd.10.15
(20)
Amendment No. 1 effective as of January 9, 2004 to the Agreement effective as of December 28, 2000 between the Registrant and Tanabe Seiyaku Co., Ltd.


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Table of Contents

Exhibit
Number

Description10.16
(21)
Termination and Release executed by Tanabe Holding America, Inc. dated May 1, 200710.17
(22)
Settlement and Modification Agreement dated July 12, 2001 between ASIVI, LLC, AndroSolutions, Inc., Gary W. Neal and the Registrant10.18
(23)
Assignment Agreement between Thomas Najarian, M.D. and the Registrant dated October 16, 200110.19
(24)
Testosterone Development and Commercialization Agreement dated as of February 7, 2004 between the Registrant, Fempharm Pty Ltd. and Acrux DDS Pty Ltd.10.20
(25)
Estradiol Development and Commercialization Agreement dated as of February 12, 2004 between the Registrant, Fempharm Pty Ltd. and Acrux DDS Pty Ltd.10.21
(26)
Master Services Agreement dated as of September 12, 2007 between the Registrant and Medpace, Inc.10.22
(27)
Exhibit A: Medpace Task Order Number: 06 dated as of December 15, 2008 pursuant to that certain Master Services Agreement, between the Registrant and Medpace, Inc., dated as of September 12,
200710.23
(28)
Asset Purchase Agreement dated October 1, 2010 between the Registrant, MEDA AB and Vivus Real Estate, LLC10.24
(29)
Transition Services Agreement dated November 5, 2010 between the Registrant and MEDA AB10.25
(30)
Lease Agreement effective November 1, 2006 by and between the Registrant and Castro Mountain View, LLC, Thomas A. Lynch, Trudy Molina Flores, Trustee of the Jolen Flores and Trudy Molina Flores Joint Living
Trust dated April 3, 2001, E William and Charlotte Duerkson, The Duerkson Family Trust dated February 16, 1999, The Dutton Family Trust dated September 16, 1993, The Noel S. Schuurman Trust, The Duarte Family Partners,
 L.P., The Marie Antoinette Clough Revocable Living Trust dated January 11, 1989, Blue Oak Properties, Inc., and CP6CC, LLC10.26
(31)
First Amendment to Lease effective November 18, 2008 between Castro Mountain View, LLC, CP6CC, LLC and the Registrant10.27
(32)
Second Amendment to Lease effective November 12, 2009 between Castro Mountain View, LLC, CP6CC, LLC and the Registrant10.28

Third Amendment to Lease effective December 3, 2010 between Castro Mountain View LLC, CP6CC, LLC and the Registrant21.1

Subsidiaries of the Registrant23.1

Consent of Odenberg, Ullakko, Muranishi & Co. LLP, Independent Registered Public Accounting Firm24.1

Power of Attorney (See signature page)31.1

Certification of Chief Executive Officer pursuant to Rules 13a-14 and 15d-14 promulgated under the Securities Exchange Act of 1934, as amended31.2

Certification of Chief Financial Officer pursuant to Rules 13a-14 and 15d-14 promulgated under the Securities Exchange Act of 1934, as amended


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Table of Contents

Exhibit
Number

Description32.1

Certification of Chief Executive Officer and Chief Financial Officer pursuant to Section 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002


Confidential
treatment granted.Confidential
portions of this exhibit have been redacted and filed separately with the Commission pursuant to a confidential
treatment request in accordance with Rule 24b-2 of the Securities Exchange Act of 1934, as amended.*Indicates
management contract or compensatory plan or arrangement.(1)Incorporated
by reference to the same numbered exhibit filed with the Registrant's Current Report on Form 8-K filed with the Commission
on May 21, 2007.(2)Incorporated
by reference to Exhibit 3.2 filed with the Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.(3)Incorporated
by reference to the same numbered exhibit filed with the Registrant's Current Report on Form 8-K filed with the Commission
on April 30, 2010.(4)Incorporated
by reference to the same numbered exhibit filed with the Registrant's Registration Statement on Form 8-A filed with the
Commission on March 28, 2007.(5)Incorporated
by reference to the same numbered exhibit filed with the Registrant's Annual Report on Form 10-K/A for the fiscal year ended
December 31, 1996 filed with the Commission on April 16, 1997.(6)Incorporated
by reference to Exhibit 4.1 filed with the Registrant's Registration Statement on Form 8-A filed with the Commission
on March 28, 2007.(7)Incorporated
by reference to Exhibit 10.11 filed with the Registrant's Form 8-B filed with the Commission on June 25, 1996.(8)Incorporated
by reference to the same numbered exhibit filed with the Registrant's Registration Statement on Form S-1
No. 33-90390, as amended.(9)Incorporated
by reference to the same numbered exhibit filed with the Registrant's Registration Statement on Form S-1
No. 33-75698, as amended.(10)Incorporated
by reference to the Exhibit 10.44 filed with the Registrant's Registration Statement on Form S-8 filed with the
Commission on November 15, 2001.(11)Incorporated
by reference to Exhibit 10.1 filed with the Registrant's Current Report on Form 8-K filed with the Commission on
July 13, 2006.(12)Incorporated
by reference to Exhibit 10.2 filed with the Registrant's Current Report on Form 8-K filed with the Commission on
July 13, 2006.(13)Incorporated
by reference to Exhibit 10.1 filed with the Registrant's Current Report on Form 8-K filed with the Commission on
May 6, 2010.(14)Incorporated
by reference to Exhibit 10.63 filed with the Registrant's Current Report on Form 8-K filed with the Commission on
December 24, 2007.(15)Incorporated
by reference to Exhibit 10.1 filed with the Registrant's Current Report on Form 8-K filed with the Commission on
January 29, 2009.(16)Incorporated
by reference to Exhibit 10.1 filed with the Registrant's Current Report on Form 8-K filed with the Commission on
January 26, 2011.


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(17)Incorporated
by reference to Exhibit 10.64 filed with the Registrant's Current Report on Form 8-K filed with the Commission on
December 24, 2007.(18)Incorporated
by reference to Exhibit 10.1 filed with the Registrant's Current Report on Form 8-K filed with the Commission on
April 30, 2010.(19)Incorporated
by reference to Exhibit 10.42 filed with the Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000.(20)Incorporated
by reference to Exhibit 10.42A filed with the Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2004.(21)Incorporated
by reference to Exhibit 10.61 filed with the Registrant's Current Report on Form 8-K filed with the Commission on
May 4, 2007.(22)Incorporated
by reference to Exhibit 10.43 filed with the Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2001.(23)Incorporated
by reference to Exhibit 10.79 filed with the Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2009.(24)Incorporated
by reference to Exhibit 10.50 filed with the Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2004.(25)Incorporated
by reference to Exhibit 10.51 filed with the Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2004.(26)Incorporated
by reference to Exhibit 10.62 filed with the Registrant's Current Report on Form 8-K filed with the Commission on
September 18, 2007.(27)Incorporated
by reference to Exhibit 10.1 filed with the Registrant's Current Report on Form 8-K filed with the Commission on
December 24, 2008.(28)Incorporated
by reference to Exhibit 10.1 filed with the Registrant's Current Report on Form 8-K filed with the Commission on
November 10, 2010.(29)Incorporated
by reference to Exhibit 10.1 filed with the Registrant's Current Report on Form 8-K filed with the Commission on
November 8, 2010.(30)Incorporated
by reference to Exhibit 10.60 filed with the Registrant's Current Report on Form 8-K filed with the Commission on
November 7, 2006.(31)Incorporated
by reference to Exhibit 10.1 filed with the Registrant's Current Report on Form 8-K filed with the Commission on
December 18, 2008.(32)Incorporated
by reference to Exhibit 10.78 filed with the Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2009.


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