DATE OF THIS
AGREEMENT AND THE DATE OF THE CLOSING, THE CONDITION THAT THE COMPANY SHALL HAVE
PERFORMED ALL OF ITS OBLIGATIONS HEREUNDER THERETOFORE TO BE PERFORMED, AND THE
FOLLOWING ADDITIONAL CONDITIONS:
(A)
THE PROSPECTUS SHALL HAVE BEEN FILED WITH THE COMMISSION PURSUANT
TO RULE 424(B) UNDER THE SECURITIES ACT WITHIN THE APPLICABLE TIME PERIOD
PRESCRIBED FOR SUCH FILING, NO STOP ORDER SUSPENDING THE EFFECTIVENESS OF THE
REGISTRATION STATEMENT OR ANY PART THEREOF SHALL HAVE BEEN ISSUED AND NO
PROCEEDING FOR THAT PURPOSE SHALL HAVE BEEN INITIATED OR THREATENED BY THE
COMMISSION, AND THE INVESTOR SHALL HAVE RECEIVED THE PROSPECTUS IN ACCORDANCE
WITH THE FEDERAL SECURITIES LAWS.
(B)
THE OFFERED SHARES SHALL HAVE BEEN AUTHORIZED FOR QUOTATION ON THE
NASDAQ GLOBAL MARKET.
6.
MISCELLANEOUS.
(A)
FEES AND EXPENSES.
EACH OF THE PARTIES HERETO SHALL BE
RESPONSIBLE FOR THEIR OWN EXPENSES INCURRED IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY.
(B)
BINDING AGREEMENT; ASSIGNMENT.
THIS AGREEMENT SHALL BE BINDING
UPON, AND SHALL INURE SOLELY TO THE BENEFIT OF, EACH OF THE PARTIES HERETO, AND
EACH OF THEIR RESPECTIVE HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS AND
PERMITTED ASSIGNS, AND NO OTHER PERSON SHALL ACQUIRE OR HAVE ANY RIGHT UNDER OR
BY VIRTUE OF THIS AGREEMENT.
THE INVESTORS MAY NOT ASSIGN ANY OF THESE RIGHTS
OR OBLIGATIONS HEREUNDER TO ANY OTHER PERSON OR ENTITY WITHOUT THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
(C)
ENTIRE AGREEMENT.
THIS AGREEMENT, INCLUDING EXHIBIT A AND
SCHEDULES I, II AND III HERETO, CONSTITUTES THE ENTIRE UNDERSTANDING BETWEEN THE
PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY BE AMENDED ONLY
BY WRITTEN EXECUTION BY EACH OF THE PARTIES HERETO.
UPON EXECUTION BY THE
COMPANY AND THE INVESTORS, THIS AGREEMENT SHALL BE BINDING ON EACH OF THE
PARTIES HERETO.
(D)
CONSENT TO JURISDICTION.
THIS AGREEMENT SHALL BE ENFORCED,
GOVERNED AND CONSTRUED IN ALL RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE
OF DELAWARE, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS PRINCIPLES.
8
(E)
NOTICES.
ALL NOTICES, REQUESTS, CONSENTS AND OTHER COMMUNICATION
HEREUNDER SHALL BE IN WRITING, SHALL BE MAILED BY FIRST CLASS REGISTERED OR
CERTIFIED MAIL, OR NATIONALLY RECOGNIZED OVERNIGHT EXPRESS COURIER POSTAGE
PREPAID, AND SHALL BE DEEMED GIVEN WHEN SO MAILED AND SHALL BE DELIVERED AS
ADDRESSED AS FOLLOWS:
if to the Company, to:
VIVUS, Inc.
1172 Castro Street
Mountain View, CA 94040
Attn: Chief Financial Officer
with a copy mailed to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Attn: Mark Reinstra, Esq.
or to such other Person at such other place as the Company shall designate to
the Investors in writing; and if to the Investors, at the addresses as set forth
on Exhibit A hereto, or at such other address or addresses as may have been
furnished to the Company in writing.
(F)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS AND BY THE PARTIES HERETO IN SEPARATE COUNTERPARTS, EACH OF WHICH
WHEN SO EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL AND ALL OF