** **

**UNITED STATES**

**SECURITIES AND EXCHANGE COMMISSION**

**Washington, D.C. 20549**

 

----

 

**FORM 10-K/A**

**(Amendment No. 2)**

 

----

 

| **x** | **ANNUAL REPORT PURSUANT TO   SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934** |
|-------|-----------------------------------------------------------------------------------------------------------|

 

**For the fiscal year ended December 31, 2012**

 

**OR**

 

| **o** | **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**                                                       | ** ** | **94-3136179**                         |
|--------------------------------------------------------------------|------------|----------------------------------------|
| (State or other   jurisdiction of   incorporation or organization) |       | (IRS employer   identification number) |
|                                                               |       |                                   |
| **1172   Castro Street   Mountain View, California**               | ** ** | **94040**                              |
| (Address of principal   executive office)                          |       | (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 Registered** |
|------------------------------------------------------|------------|-----------------------------------------------------------------------------|
| Common Stock, $0.001   Par Value   (Title of class)  |       | The NASDAQ Global   Select Market                                           |
| Preferred 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 x  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 x

 

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 x  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 x  No o

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405) 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   x                     |   | Accelerated filer o           |
|-------------------------------------------------|--------|-------------------------------|
|                                            |   |                          |
| Non-accelerated filer o                         |   | Smaller reporting   company o |
| (Do not check if a   smaller reporting company) |   |                          |

 

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

 

The aggregate market value of the common equity held by non-affiliates of the Registrant as of June 30, 2012 totaled approximately $2,847,137,500 based on the closing stock price as reported by the NASDAQ Global Market.

 

As of May 20, 2013, there were 100,723,284 shares of the Registrant’s common stock, $0.001 par value per share, outstanding.

** **

**DOCUMENTS INCORPORATED BY REFERENCE**

 
| **Document Description** | ** ** | **10-K part** |
|-------------------------------|------------|--------------------|
| None.                         |       |               |

 

 

 

----

 

**VIVUS, INC.**

 

**FISCAL 2012 FORM 10-K**

 

**EXPLANATORY NOTE**

 

This Amendment No. 2 to Form 10-K, or Amendment No. 2, amends the Annual Report on Form 10-K for the fiscal year ended December 31, 2012 originally filed on February 26, 2013, or the Original Filing, as amended by Form 10-K/A filed on April 30, 2013, or Amendment No. 1, by VIVUS, Inc., a Delaware corporation, or the Company. The Company is filing this Amendment No. 2 solely to update the exhibit index of the Original Filing and to file Exhibit 2.2, which was inadvertently filed as Exhibit 10.26 in the Original Filing.

 

Except as described above, no other changes have been made to the Original Filing or Amendment No. 1. The Original Filing and Amendment No. 1 continue to speak as of the date thereof, and the Company has not updated the disclosures contained therein to reflect any events which occurred at a date subsequent to the filing of the Original Filing and Amendment No. 1, respectively.

 

In the Company’s filings with the Securities and Exchange Commission, or the Commission, information is sometimes “incorporated by reference.” This means that the Company refers you to information previously filed with the Commission that should be considered as part of the particular filing.

 

2

----

 

**PART IV**

 

**Item 15.  *Exhibits and Financial Statement Schedules***

 

The financial statements, financial statement schedules and exhibits listed in the exhibit index of the Original Filing and Amendment No. 1 and the exhibits listed in the exhibit index of this Amendment No. 2 are filed with, or incorporated by reference in, this Amendment No. 2.

 

3

----

 

**SIGNATURES**

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this Amendment No. 2 to be signed on its behalf by the undersigned, thereunto duly authorized:

 

 
|                     | VIVUS, INC.,      |
|--------------------------|------------------------|
|                     | a Delaware Corporation |
|                     |                   |
|                     |                   |   |
|                     | By:                    | /s/ LELAND F. WILSON |
|                     |                   | Leland F. Wilson |
|                     |                   | *Chief   Executive Officer* |
|                     |                   | *(Principal   Executive Officer)* |
|                     |                   |   |
|                     |                   |   |
| Date: June 12, 2013 |                   |   |

 

4

----

 

**VIVUS, INC.**

**AMENDMENT NO. 2 TO ANNUAL REPORT ON FORM 10-K FOR**

**THE YEAR ENDED DECEMBER 31, 2012**

 

**EXHIBIT INDEX**

 
| **Exhibit   Number** | ** **      | **Description** |
|----------------------|-----------------|-----------------|
|                 |            |            |
|                 | 2.2†† |            |   | Asset Purchase Agreement dated October 1, 2010   between the Registrant, MEDA AB and Vivus Real Estate, LLC |
|                 | 31.5            |            |   | Certification of Chief Executive Officer pursuant to   Rules 13a-14 and 15d-14 promulgated under the Securities Exchange Act of   1934, as amended |
|                 | 31.6            |            |   | Certification of Chief Financial Officer pursuant to   Rules 13a-14 and 15d-14 promulgated under the Securities Exchange Act of   1934, as amended |
|                      |                 |                 |  |  |  |

 

††                                  Originally filed as Exhibit 10.26 with the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2012 filed with the Commission on February 26, 2013. Schedules and similar attachments omitted pursuant to Item 601(b)(2) of Regulation S-K will be furnished to the Commission supplementally upon request. 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.

 

5

----