Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of August 5,
2008, by and among VIVUS, Inc., a Delaware corporation (the "Company"), and the
investors named on Exhibit A hereto (each an "Investor" and collectively the
"Investors").
WITNESSETH
WHEREAS, the Company has filed with the Securities and Exchange Commission (the
"Commission") a 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") to the Investors pursuant to the Registration Statement; and
WHEREAS, each Investor, severally and not jointly, 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:
"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 mean the prospectus forming a part of the Registration
Statement and the prospectus supplement relating to the Offered Shares in the
form first filed pursuant to Rule 424(b) under the Securities Act, as amended
(the "Securities Act"), as further amended or supplemented prior to the
execution of this Agreement, and shall include all information and documents
incorporated by reference in such prospectus.
"Registration Statement" shall mean the registration statement on Form S-3 (File
No. 333-150649), including a prospectus, relating to the offer and sale of
certain of the Company's Common Stock, which was declared effective by the
Commission on May 29, 2008.
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.
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 EACH INVESTOR AND EACH INVESTOR, SEVERALLY
AND NOT JOINTLY, 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 BE ON
THE DATE AND AT THE TIME SET FORTH ON SCHEDULE I HERETO, OR SUCH OTHER DATE OR
TIME AS THE PARTIES MAY AGREE UPON IN WRITING (THE "CLOSING").
3.
DELIVERIES AT CLOSING.
(A)
DELIVERIES BY THE INVESTOR.
PROMPTLY AFTER RECEIPT OF