Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of April 3,
2008, is by and among VIVUS, Inc., a Delaware corporation (the "Company"),
Deerfield Private Design Fund L.P. ("DFPDF"), Deerfield Private Design
International, L.P. (collectively with DFPDF, the "Investors") and Deerfield
Management Company, L.P. ("Deerfield").
WITNESSETH
WHEREAS, the Company has filed with the Securities and Exchange Commission (the
"Commission") the Registration Statement (as defined below) relating to the
offer and sale from time to time of the Company's securities, including shares
of its Common Stock, $0.001 value ("Common Stock");
WHEREAS, the Company is offering for sale shares of Common Stock (the "Offered
Shares") pursuant to the Registration Statement; and
WHEREAS, the Investor desires to purchase from the Company Offered Shares on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the recitals (which are deemed to be a part
of this Agreement), mutual covenants, representations, warranties and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1.
DEFINITIONS.
AS USED HEREIN, THE
FOLLOWING TERMS HAVE THE MEANINGS INDICATED:
"Business Day" means any day other than Saturday, Sunday or a day on which banks
in the City of New York are authorized or required to be closed.
"Person" shall mean any individual, partnership, limited liability company,
joint venture, firm, corporation, association, trust or other enterprise or any
government or political subdivision or any agency, department or instrumentality
thereof.
"Prospectus" shall have the meaning set forth in Section 4(b)(6) hereof.
"Prospectus Supplement" shall mean the prospectus supplement filed with the
Commission pursuant to Rule 424(b) promulgated under the Securities Act and
deemed to be part of the Registration Statement at the time of effectiveness.
"Registration Statement" shall mean the registration statement on Form S-3 (File
No. 333-135793), including a prospectus, and including all amendments and
supplements thereto (including the Prospectus Supplement), relating to the offer
and sale of certain of the Company's Common Stock, including the Investor
Shares.
References herein to the term "Registration Statement" as of any date
shall mean such effective registration statement, as amended or supplemented to
such date, including all information and documents incorporated by reference
therein as of such date.
"Securities Act" shall mean the Securities Act of 1933, as amended.
2.
PURCHASE OF COMMON STOCK.
SUBJECT AND
PURSUANT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, THE COMPANY
AGREES THAT IT WILL ISSUE AND SELL TO THE INVESTOR AND THE INVESTOR AGREES THAT
IT WILL PURCHASE FROM THE COMPANY THE NUMBER OF OFFERED SHARES SET FORTH ON
SCHEDULE I ATTACHED HERETO (THE "INVESTOR SHARES").
THE AGGREGATE PURCHASE
PRICE FOR THE INVESTOR SHARES (THE "AGGREGATE PURCHASE PRICE") AND THE PURCHASE
PRICE PER INVESTOR SHARE IS SET FORTH ON SCHEDULE I HERETO.
THE CLOSING OF THE
PURCHASE AND SALE OF THE INVESTOR SHARES WILL TAKE PLACE ON OR BEFORE THE
FIFTEENTH (15TH) BUSINESS DAY FOLLOWING THE DATE OF THIS AGREEMENT, OR SUCH