SHALL BE BINDING
UPON, AND SHALL INURE SOLELY TO THE BENEFIT OF, EACH OF THE PARTIES HERETO, AND
EACH OF THEIR RESPECTIVE HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS AND
PERMITTED ASSIGNS, AND NO OTHER PERSON SHALL ACQUIRE OR HAVE ANY RIGHT UNDER OR
BY VIRTUE OF THIS AGREEMENT. THE INVESTORS MAY NOT ASSIGN ANY OF THESE RIGHTS OR
OBLIGATIONS HEREUNDER TO ANY OTHER PERSON OR ENTITY WITHOUT THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
(C)
ENTIRE AGREEMENT. THIS AGREEMENT, INCLUDING EXHIBIT A AND
SCHEDULE I HERETO, CONSTITUTES THE ENTIRE UNDERSTANDING BETWEEN THE PARTIES
HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY BE AMENDED ONLY BY
WRITTEN EXECUTION BY BOTH PARTIES. UPON EXECUTION BY THE COMPANY AND THE
INVESTORS, THIS AGREEMENT SHALL BE BINDING ON EACH OF THE PARTIES HERETO.
(D)
CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE ENFORCED,
GOVERNED AND CONSTRUED IN ALL RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE
OF CALIFORNIA, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS PRINCIPLES.
FURTHERMORE, THE INVESTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
FEDERAL OR STATE COURTS LOCATED IN THE STATE OF CALIFORNIA IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH OF THE COMPANY AND THE INVESTOR (AND, TO THE EXTENT
PERMITTED BY LAW, ON BEHALF OF ITS AND THEIR EQUITY HOLDERS AND CREDITORS)
HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY.
(E)
NOTICES. ALL NOTICES, REQUESTS, CONSENTS AND OTHER COMMUNICATION
HEREUNDER SHALL BE IN WRITING, SHALL BE MAILED BY FIRST CLASS REGISTERED OR
CERTIFIED MAIL, OR NATIONALLY RECOGNIZED
8
OVERNIGHT EXPRESS COURIER POSTAGE PREPAID, AND SHALL BE DEEMED GIVEN WHEN SO
MAILED AND SHALL BE DELIVERED AS ADDRESSED AS FOLLOWS:
if to the Company, to:
VIVUS, Inc.
1172 Castro Street
Mountain View, CA 94040
Attn: Chief Financial Officer
with a copy mailed to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Attn: Mark Reinstra, Esq.
or to such other Person at such other place as the Company shall designate to
the Investors in writing; and if to the Investors, at the addresses as set forth
on Exhibit A hereto, or at such other address or addresses as may have been
furnished to the Company in writing.
(F)
COUNTERPARTS. THIS AGREEMENT MAYBE EXECUTED IN ANY NUMBER OF
COUNTERPARTS AND BY THE PARTIES HERETO IN SEPARATE COUNTERPARTS, EACH OF WHICH
WHEN SO EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL AND ALL OF WHICH TAKEN
TOGETHER SHALL CONSTITUTE ONE IN THE SAME AGREEMENT.
9
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
VIVUS, Inc.
By:
/s/ Timothy E. Morris
Name: Timothy E. Morris
Title: Chief Financial Officer
[Signature Page to Securities Purchase Agreement]
Accepted and agreed to as of the date
first above written:
Chilton