UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported)
May 10, 2006
VIVUS, INC.
(Exact name of
registrant as specified in its charter)
Delaware
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000-23490
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94-3136179
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(State or other
jurisdiction of
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(Commission File
Number)
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(IRS Employer
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incorporation)
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Identification
No.)
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1172
CASTRO STREET
MOUNTAIN
VIEW, CA 94040
(Address of
principal executive offices, including zip code)
(650)
934-5200
(Registrants
telephone number, including area code)
N/A
(Former name or
former address, if changed since last report)
Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the filing
obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
o Written communications pursuant to Rule 425
under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12
under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to
Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule
13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive
Agreement.
On May 10, 2006, VIVUS, Inc. (the Company) entered into a securities purchase
agreement (the Purchase Agreement) with funds affiliated with OrbiMed
Advisors, LLC and Chilton Investment Co., LLC in connection with a registered
direct offering of the Companys Common Stock. Pursuant to the terms of the
Purchase Agreement, the Company sold and issued a total of 3,669,725 shares of
its Common Stock at a price of $3.27 per share. The transaction closed on May
10, 2006. All of the shares of Common Stock were offered pursuant to an
effective Registration Statement on Form S-3 filed with the Securities and
Exchange Commission on December 22, 2004.
The above description of the Purchase Agreement is a
summary only and is qualified in its entirety by reference to Exhibit 10.1 to
this Current Report on Form 8-K.
Item 9.01. Financial Statements and
Exhibits.
(d)
Exhibits.
Exhibit No.
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Description
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10.1
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Securities Purchase
Agreement dated as of May 10, 2006
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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VIVUS, INC.
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By:
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/s/ Timothy E. Morris
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Timothy
E. Morris
Vice
President and Chief Financial Officer
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Date: May 11,
2006
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EXHIBIT INDEX
Exhibit No.
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Description
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10.1
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Securities Purchase
Agreement dated as of May 10, 2006
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EXHIBIT 10.1
SECURITIES
PURCHASE AGREEMENT
SECURITIES PURCHASE
AGREEMENT (this Agreement), dated as of May 10, 2006, by and between
VIVUS, Inc., a Delaware corporation (the Company), and the investors
named on Exhibit A hereto (each on Investor and
collectively the Investors).
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 Companys 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, each 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:
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 at the relevant time, 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.
333-121519), including a prospectus, relating to the offer and sale of certain
of the Companys Common Stock, which was declared effective by the Commission
on January 7, 2005. 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.
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 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. At the Closing, each Investor shall deliver to the Company
the Aggregate Purchase Price by wire transfer of immediately available funds to
an account designated by the Company as set forth on Schedule I
hereto, which funds will be delivered to the Company in consideration of the
Investor Shares issued at the Closing.
(b) Deliveries
by the Company. At the Closing, the Company shall deliver to each Investor
the Investor Shares through The Depository Trust Company DWAC system to the
account that the Investor has specified in writing to the Company.
4. Representations, Warranties, Covenants and
Agreements.
(a) Investor
Representations, Warranties and Covenants. Each Investor represents,
warrants and agrees as follows:
(1) Investor
has received and reviewed copies of the Registration Statement and the
Prospectus, including all documents and information incorporated by reference
therein and amendments thereto, and understands that no Person has been
authorized to give any information or to make any representations that were not
contained in the Registration Statement and the Prospectus, and Investor has
not relied on any such other information or representations in making a
decision to purchase the Investor Shares. Investor hereby consents to receiving
delivery of the Registration Statement and the Prospectus, including all
documents and information incorporated by reference therein and amendments
thereto, by electronic mail. Investor understands that an investment in the
Company involves a high degree of risk for the reasons, among others, set forth
under the captions RISK FACTORS in the Prospectus.
(2) Investor
acknowledges that it has sole responsibility for its own due diligence
investigation and its own investment decision, and that in connection with its
investigation of the accuracy of the information contained or incorporated by
reference in the Registration Statement and the Prospectus and its investment
decision, Investor has not relied on any representation or information not set
forth in this Agreement, the Registration Statement or the Prospectus, or any
Person affiliated with the Company or on the fact that any other Person has
decided to invest in the Offered Shares.
(3) The
execution and delivery of this Agreement by Investor and the performance of
this Agreement and the consummation by Investor of the transactions
contemplated
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hereby have
been duly authorized by all necessary (corporate, partnership or limited
liability in the case of a corporation, partnership or limited liability
company) action of Investor, and this Agreement, when duly executed and
delivered by Investor, will constitute a valid and legally binding instrument,
enforceable in accordance with its terms against Investor, except as
enforcement hereof may be limited by the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws or court decisions affecting
enforcement of creditors rights generally and except as enforcement hereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(4) No
state, federal or foreign regulatory approvals, permits, licenses or consents
or other contractual or legal obligations are required for Investor to enter
into this Agreement or purchase the Investor Shares.
(b) Company
Representations, Warranties and Covenants. The Company hereby represents,
warrants and agrees as follows:
(1) The
Company has been duly incorporated and has a valid existence and the
authorization to transact business as a corporation under the laws of the State
of Delaware, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
except for such jurisdictions wherein the failure to be so qualified and in
good standing would not individually or in the aggregate have a material
adverse effect on the business, results of operations or financial condition of
the Company and its subsidiaries taken as a whole (a Material Adverse
Effect); and each subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require such
qualification, except for such jurisdictions wherein the failure to be so
qualified and in good standing would not individually or in the aggregate have
a Material Adverse Effect.
(2) Each
subsidiary of the Company is duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, has all corporate
powers and all governmental licenses, authorizations, permits, consents and
approvals required to carry on its business as now conducted, is duly qualified
to do business and is in good standing in each jurisdiction where such
qualification is necessary. All subsidiaries and their respective jurisdictions
of incorporation are identified on Schedule II hereto. Except as
disclosed in Schedule II, all of the outstanding capital stock or other
voting securities of each subsidiary is owned by the Company, directly or
indirectly, free and clear of any lien and free of any other limitation or
restriction (including any restriction on the right to vote, sell or otherwise
dispose of such capital stock or other voting securities). There are no
outstanding (i) securities of the Company or any of the subsidiaries of the
Company which are convertible into or exchangeable for shares of capital stock
or voting securities of any subsidiary of the Company or (ii) options or other
rights to acquire from the Company or any subsidiary of the Company, or other
obligation of the Company or any subsidiary
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of the
Company to issue, any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting securities of any
subsidiary of the Company (collectively, the Subsidiary Securities). There
are no outstanding obligations of the Company or any subsidiary of the Company
to repurchase, redeem or otherwise acquire any outstanding Subsidiary
Securities.
(3) The
execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby are within the corporate
powers of the Company and have been duly authorized by all necessary corporate
action on the part of the Company and this Agreement, when duly executed and
delivered by the parties hereto, will constitute a valid and legally binding
instrument of the Company enforceable in accordance with its terms, except as
enforcement hereof may be limited by the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws or court decisions affecting
enforcement of creditors rights generally and except as enforcement hereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(4) The
Investor Shares have been duly authorized by the Company, and when issued and
delivered by the Company against payment therefor as contemplated by this
Agreement, the Investor Shares will be validly issued, fully paid and
nonassessable, and will conform to the description of the Common Stock
contained in the Prospectus.
(5) The
execution and delivery of this Agreement do not, and the compliance by the
Company with the terms hereof will not, (i) violate the Certificate of
Incorporation (as amended to date) of the Company or the By-Laws (as amended to
date) of the Company, (ii) result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of their properties or assets are
subject, or (iii) result in a violation of, or failure to be in compliance
with, any applicable statute or any order, judgment, decree, rule or regulation
of any court or governmental, regulatory or self-regulatory agency or body
having jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets, except where such breach, violation, default or the
failure to be in compliance would not individually or in the aggregate have a
Material Adverse Effect or adversely affect the ability of the Company to issue
and sell the Investor Shares; and no consent, approval, authorization, order,
registration, filing or qualification of or with any such court or
governmental, regulatory or self-regulatory agency or body is required for the
valid authorization, execution, delivery and performance by the Company of this
Agreement or the issuance of the Investor Shares, except for such consents,
approvals, authorizations, registrations, filings or qualifications as may be
required under the Securities Act or state securities or blue sky laws or
have been or will be obtained or made in connection with the listing of the
Investor Shares on the Nasdaq National Market.
(6) The
Company meets the requirements for the use of Form S-3 under the
Securities Act for the primary issuance of securities. The Registration
Statement has been declared effective by the Commission and at the time it
became effective, and as of the date hereof, the Registration Statement
complied and complies with Rule 415 under the Securities Act. No stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been initiated or, to the Companys
knowledge, threatened by the Commission.
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On the
effective date of the Registration Statement, the Registration Statement
complied, on the date of the Prospectus, the Prospectus will comply, and at the
date of the Closing, the Registration Statement and the Prospectus will comply,
in all material respects with the applicable provisions of the Securities Act
and the applicable rules and regulations of the Commission thereunder; on the
effective date of the Registration Statement, the Registration Statement did
not, on the date of the Prospectus, the Prospectus did not, and at the date of
the Closing, the Registration Statement, the Prospectus and other information
provided in writing to the Investors, when ready together, will not, contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made (with respect to the
Prospectus), not misleading; and when filed with the Commission, the documents
incorporated by reference in the Registration Statement and the Prospectus,
taken as a whole, complied or will comply in all material respects with the
applicable provisions of the Securities Exchange Act of 1934, as amended (the Exchange
Act), and the applicable rules and regulations of the Commission
thereunder. There is no material document of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement that is not described or filed as
required.
(7) The
consolidated financial statements and financial schedules of the Company
included or incorporated by reference in the Registration Statement and the
Prospectus have been prepared in conformity with generally accepted accounting
principles (except, with respect to the unaudited consolidated financial
statements, for the footnotes and subject to customary audit adjustments)
applied on a consistent basis, are consistent in all material respects with the
books and records of the Company, and accurately present in all material
respects the consolidated financial position, results of operations and cash
flow of the Company and its subsidiaries as of and for the periods covered
thereby.
(8) There
are no material liabilities of the Company or any subsidiary of the Company of
any kind whatsoever, whether accrued, contingent, absolute, determined,
determinable or otherwise, and there is no existing condition, situation or set
of circumstances which could reasonably be expected to result in such a
liability, other than liabilities disclosed in the consolidated financial
statements and financial schedules of the Company, and other undisclosed
liabilities which, individually or in the aggregate, are not material to the
Company and any of its subsidiaries, taken as a whole.
(9) Neither
the Company nor any of its subsidiaries has sustained since the respective
dates of the latest audited financial statements included in the Registration
Statement and Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as disclosed in or contemplated by the Registration Statement
and Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and Prospectus, there has not been any
material change in the capital stock or long-term debt of the Company or any of
its subsidiaries, the Company and its subsidiaries have not incurred any
material liabilities or obligations, direct or contingent, nor entered into any
material transactions not in the ordinary course of business and there has not
been any material adverse change in or affecting the general affairs,
management, financial position, stockholders equity or results of
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operations
of the Company and its subsidiaries considered as a whole, otherwise than as
disclosed in or contemplated by the Registration Statement and Prospectus.
(10) Other
than as disclosed in the Prospectus, there are no legal, governmental or
regulatory proceedings pending to which the Company or any of its subsidiaries
is a party or of which any material property of the Company or any of its
subsidiaries is the subject which, taking into account the likelihood of the
outcome, the damages or other relief sought and other relevant factors, would
individually or in the aggregate reasonably be expected to have a Material
Adverse Effect or adversely affect the ability of the Company to issue and sell
the Investor Shares; to the best of the Companys knowledge, no such
proceedings are threatened or contemplated by governmental or regulatory
authorities or threatened by others.
(11) The
Company and each of its subsidiaries have good and marketable title to all the
real property and owns all other properties and assets, reflected as owned in
the financial statements included in the Registration Statement and the
Prospectus, subject to no lien, mortgage, pledge, charge or encumbrance of any
kind except those, if any, reflected in such financial statements or which are
not material to the Company and its subsidiaries taken as a whole. The Company
and each of its subsidiaries hold their respective leased real and personal
properties under valid and binding leases, except where the failure to do so
would not reasonably be expected to individually or in the aggregate have a
Material Adverse Effect.
(12) The
Company has filed all necessary federal and state income and franchise tax
returns and has paid all taxes shown as due thereon or has filed all necessary
extensions, and there is no tax deficiency that has been, or to the knowledge
of the Company might be, asserted against the Company or any of its properties
or assets that would in the aggregate or individually reasonably be expected to
have a Material Adverse Affect.
(13) There
are no holders of securities of the Company having preemptive rights to
purchase Common Stock. There are no holders or beneficial owners of securities
of the Company having rights to registration thereof whose securities have not
been previously registered or who have not waived such rights with respect to
the registration of the Companys securities on the Registration Statement,
except where the failure to obtain such waiver would not individually or in the
aggregate reasonably be expected to have a Material Adverse Effect.
(14) The
Company has not taken and will not take any action that constitutes or is
designed to cause or result, or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Offered Shares.
(15) Other
than as disclosed in the Prospectus, the Company together with its subsidiaries
owns and possesses all right, title and interest in and to, or, to the Companys
knowledge, has duly licensed from third parties, all patents, patent rights,
trade secrets, inventions, know-how, trademarks, trade names, copyrights,
service marks and other proprietary rights (Intellectual Property)
material to the business of the Company and each of its subsidiaries taken as a
whole as currently conducted and as described in the Prospectus. To the Companys
knowledge and except as would not individually or in the aggregate have a
Material Adverse Effect, there is no
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infringement
or other violation by third parties of any of the Intellectual Property of the
Company. Neither the Company nor any of its subsidiaries has received any
notice of infringement or misappropriation from any third party that has not
been resolved or disposed of and, to the Companys knowledge, neither the Company
nor any of its subsidiaries has infringed or misappropriated the Intellectual
Property of any third party, which infringement or misappropriation would
individually or in the aggregate have a Material Adverse Effect. Further, there
is no pending or, to the Companys knowledge and except as would not
individually or in the aggregate have a Material Adverse Effect, threatened
action, suit, proceeding or claim by governmental authorities or others that
the Company is infringing a patent, and there is no pending or, to the Companys
knowledge and except as would not individually or in the aggregate have a
Material Adverse Effect, threatened legal or administrative proceeding relating
to patents and patent applications of the Company, other than proceedings initiated
by the Company before the United States Patent and Trademark Office and the
patent offices of certain foreign jurisdictions which are in the ordinary
course of patent prosecution. To the Companys knowledge, the patent
applications of the Company presently on file disclose patentable subject
matter, and the Company is not aware of any inventorship challenges, any
interference which has been declared or provoked, or any other material fact
that (i) would preclude the issuance of patents with respect to such
applications, or (ii) would lead such counsel to conclude that such
patents, when issued, would not be valid and enforceable in accordance with
applicable regulations.
(16) The
conduct of the business of the Company and each of its subsidiaries is in
compliance in all respects with applicable laws, rules and regulations of
governmental and regulatory bodies, except where the failure to be in
compliance would not individually or in the aggregate have a Material Adverse
Effect.
(17) The
Company is not, and does not intend to conduct its business in a manner in
which it would become, an investment company as defined in Section 3(a)
of the Investment Company Act of 1940, as amended.
(18) All
offers and sales of the Companys capital stock prior to the date hereof were
at all relevant times registered pursuant to the Securities Act or exempt from
the registration requirements of the Securities Act and were duly registered
with or the subject of an available exemption from the registration requirements
of the applicable state securities or blue sky laws, except where the failure
to do so would not individually or in the aggregate reasonably be expected to
have a Material Adverse Effect.
(19) The
Company has filed with the Nasdaq National Market a Notification of Listing of
Additional Shares with respect to the Investor Shares within the time period
required by the rules of the Nasdaq National Market.
(20) To
the extent that the Company or any other Person acting on its behalf has
provided the Investor or its agents or counsel with any information that the
Company believes constitutes material, non-public information, any such
material, non-public information will be disclosed by the Company within 48
hours of the Closing.
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5. Conditions. The obligation of each Investor to purchase and acquire the Investor
Shares hereunder shall be subject to the condition that all representations and
warranties and other statements of the Company shall be true and correct as of
and on each of the 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.
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 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
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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.
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IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first above written.
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VIVUS,
Inc.
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By:
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/s/
Timothy E. Morris
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Name:
Timothy E. Morris
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Title:
Chief Financial Officer
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[Signature Page to
Securities Purchase Agreement]
Accepted and
agreed to as of the date
first above written:
Chilton Small Cap Partners, L.P.
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By:
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Chilton Investment Company, LLC, General Partner
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By:
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/s/ Norman B. Champ III
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Name: Norman B. Champ III
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Title: Executive Vice President
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Address:
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1266 East Main St., 7th Floor
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Stamford, CT 06902
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Telephone:
Facsimile:
Email Address:
Nominee (name in
which Investor Shares are to be registered,
if different than name of Investor):
Address of
Nominee:
Taxpayer ID.
Number:
(if acquired in
the name of a nominee, the taxpayer ID. number of such nominee)
Broker:
Broker Contact
Name:
Broker Contact
Telephone:
Broker Contact
Facsimile:
Broker Contact E-mail
Address:
DTC account
number:
Accepted and
agreed to as of the date
first above written:
Chilton New Era Partners, L.P.
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By:
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Chilton Investment Company, LLC, General Partner
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By:
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/s/ Norman B. Champ III
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Name: Norman B.
Champ III
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Title: Executive
Vice President
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Address:
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1266 East Main
St., 7th Floor
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Stamford, CT
06902
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Telephone:
Facsimile:
Email Address:
Nominee (name in
which Investor Shares are to be registered,
if different than name of Investor):
Address of
Nominee:
Taxpayer ID.
Number:
(if acquired in
the name of a nominee, the taxpayer ID. number of such nominee)
Broker:
Broker Contact
Name:
Broker Contact
Telephone:
Broker Contact Facsimile:
Broker Contact E-mail
Address:
DTC account
number:
Accepted and
agreed to as of the date
first above written:
Chilton New Era International, L.P,
|
By:
|
Chilton Investment Company, LLC, General Partner
|
By:
|
/s/ Norman B. Champ III
|
|
|
Name: Norman B.
Champ III
|
|
Title: Executive
Vice President
|
|
Address:
|
1266 East Main
St., 7th Floor
|
|
|
Stamford, CT
06902
|
|
|
|
|
Telephone:
Facsimile:
Email Address:
Nominee (name in
which Investor Shares are to be registered,
if different than name of Investor):
Address of
Nominee:
Taxpayer ID.
Number:
(if acquired in
the name of a nominee, the taxpayer ID. number of such nominee)
Broker:
Broker Contact
Name:
Broker Contact
Telephone:
Broker Contact
Facsimile:
Broker Contact E-mail
Address:
DTC account number:
Accepted and
agreed to as of the date
first above written:
Chilton Small Cap International, L.P.
|
By:
|
Chilton Investment Company, LLC, General Partner
|
By:
|
/s/ Norman B. Champ III
|
|
|
Name: Norman B.
Champ III
|
|
Title: Executive
Vice President
|
|
Address:
|
1266 East Main
St., 7th Floor
|
|
|
Stamford, CT
06902
|
|
|
|
|
Telephone:
Facsimile:
Email Address:
Nominee (name in
which Investor Shares are to be registered,
if different than name of Investor):
Address of
Nominee:
Taxpayer ID.
Number:
(if acquired in
the name of a nominee, the taxpayer ID. number of such nominee)
Broker:
Broker Contact
Name:
Broker Contact
Telephone:
Broker Contact
Facsimile:
Broker Contact E-mail
Address:
DTC account
number:
Accepted and
agreed to as of the date
first above written:
Caduceus Private
Investments II, LP
By: OrbiMed
Capital II LLC
Its: General
Partner
By:
|
/s/ Eric A. Bittelman
|
|
|
Name: Eric A.
Bittelman
|
|
Title: CFO,
OrbiMed Capital GP II, LLC
|
|
Address:
|
|
|
|
|
|
Telephone:
Facsimile:
Email Address:
Nominee (name in
which Investor Shares are to be registered,
if different than name of Investor):
Address of
Nominee:
Taxpayer ID.
Number:
(if acquired in
the name of a nominee, the taxpayer ID. number of such nominee)
Broker:
Broker Contact
Name:
Broker Contact
Telephone:
Broker Contact
Facsimile:
Broker Contact E-mail
Address:
DTC account
number:
Accepted and
agreed to as of the date
first above written:
Caduceus Private
Investments II (QP), LP
By: OrbiMed
Capital II LLC
Its: General
Partner
By:
|
/s/ Eric A. Bittelman
|
|
|
Name: Eric A.
Bittelman
|
|
Title: CFO,
OrbiMed Capital GP II LLC
|
|
Address:
|
|
|
|
|
|
Telephone:
Facsimile:
Email Address:
Nominee (name in
which Investor Shares are to be registered,
if different than name of Investor):
Address of
Nominee:
Taxpayer ID.
Number:
(if acquired in
the name of a nominee, the taxpayer ID. number of such nominee)
Broker:
Broker Contact
Name:
Broker Contact
Telephone:
Broker Contact
Facsimile:
Broker Contact E-mail
Address:
DTC account
number:
Accepted and agreed
to as of the date
first above written:
UBS Juniper
Crossover Fund, L.L.C.
By: OrbiMed
Advisors LLC,
Member of UBS
Juniper Crossover Management, L.L.C.
Its: Managing
Member
By:
|
/s/ Eric A. Bittelman
|
|
|
Name: Eric A.
Bittelman
|
|
Title: CFO,
OrbiMed Advisors, LLC
|
|
Address:
|
|
|
|
|
|
Telephone:
Facsimile:
Email Address:
Nominee (name in
which Investor Shares are to be registered,
if different than name of Investor):
Address of
Nominee:
Taxpayer ID.
Number:
(if acquired in
the name of a nominee, the taxpayer ID. number of such nominee)
Broker:
Broker Contact
Name:
Broker Contact
Telephone:
Broker Contact
Facsimile:
Broker Contact E-mail
Address:
DTC account
number:
Exhibit A
Investors
Caduceus Private
Investments II, LP
c/o Merrill Lynch, Venture
Services
600 California Street, 8th
Floor
San Francisco, CA 94108
Attn: Thomas Hutson-Wiley
Caduceus Private
Investments II (QP), LP
c/o Merrill Lynch,
Venture Services
600 California Street, 8th
Floor
San Francisco, CA 94108
Attn: Thomas Hutson-Wiley
UBS Juniper Crossover
Fund, L.L.C.
c/o PFPC Trust 8800
Tinicum Blvd. 3rd Floor
Philadelphia, PA 19153
Attn: Eric Kessler
Chilton Small Cap
Partners, L.P.
Chilton New Era Partners,
L.P.
Chilton New Era
International, L.P.
Chilton Small Cap
International, L.P.
c/o Chilton Investment
Company
1266 East Main St., 7th
Floor
Stamford, CT 06902
Attention: James
Steinthal
Managing Director &
General Counsel Funds
SCHEDULE
I
to
Securities Purchase Agreement
Name
of Investor
|
|
Aggregate Purchase Price
|
|
Number of Offered Shares to be
Purchased by Investor
|
|
|
|
|
|
|
|
Caduceus Private
Investments II, LP
|
|
$
|
6,673,890.15
|
|
2,040,945
|
|
|
|
|
|
|
|
Caduceus Private
Investments II (QP), LP
|
|
$
|
2,498,842.44
|
|
764,172
|
|
|
|
|
|
|
|
UBS Juniper Crossover
Fund, L.L.C.
|
|
$
|
827,267.49
|
|
252,987
|
|
|
|
|
|
|
|
Chilton Small Cap
Partners, L.P.
|
|
$
|
682,164.51
|
|
208,613
|
|
|
|
|
|
|
|
Chilton Small Cap
International, L.P.
|
|
$
|
817,836.81
|
|
250,103
|
|
|
|
|
|
|
|
Chilton New Era
Partners, L.P.
|
|
$
|
249,157.65
|
|
76,195
|
|
|
|
|
|
|
|
Chilton New Era
International, L.P.
|
|
$
|
250,841.70
|
|
76,710
|
|
|
|
|
|
|
|
TOTAL
|
|
$
|
12,000,000.75
|
|
3,669,725
|
|
Purchase Price Per
Share of Common Stock
|
$
|
3.27
|
Date and Time of Closing: May 10, 2006 at 9:00 a.m., Pacific Daylight
Time
WIRE
INSTRUCTIONS
Aggregate Purchase
Price to be wired to:
|
Bank:
|
|
Bank of America
Branch 1493
|
Address:
|
|
530 Lytton Avenue, Palo
Alto, CA 94301
|
Account Name:
|
|
VIVUS, Inc.
|
Account Number:
|
|
|
ABA Routing Number:
|
|
|
E-mail confirmation to:
|
|
|
SCHEDULE II
to
Securities Purchase Agreement
List of Subsidiaries:
VIVUS
International Limited (Bermuda)
VIVUS
UK Limited (United Kingdom)
VIVUS
BV (Netherlands)
VIVUS
Real Estate, LLC (New Jersey)