<PAGE>   1
                                    FORM 8-B


                       SECURITIES AND EXCHANGE COMMISSION

                             WASHINGTON, D.C. 20549



             REGISTRATION OF SECURITIES OF CERTAIN SUCCESSOR ISSUERS

                    Filed Pursuant to Section 12(b) or (g) of
                       the Securities Exchange Act of 1934


                                   VIVUS, INC.
- -------------------------------------------------------------------------------
             (Exact name of registrant as specified in its charter)


               DELAWARE                                94-3136179
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(State of incorporation or organization)   (I.R.S. Employer Identification No.)


              545 Middlefield Road, Suite 200, Menlo Park, CA 94025
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(Address of principal executive offices)                   (Zip Code)




       Securities to be registered pursuant to Section 12(b) of the Act:

                                      NONE
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       Securities to be registered pursuant to Section 12(g) of the Act:

                         COMMON STOCK ($0.001 PAR VALUE)
- -------------------------------------------------------------------------------
                                (Title of class)

<PAGE>   2
Item 1. General Information

         (a) The registrant, VIVUS, Inc. (the "Company" or the "Registrant"),
was incorporated in Delaware on May 17, 1996.

         (b) The Company's fiscal year ends December 31.

Item 2. Transaction of Succession

         (a) The predecessor to the Company was VIVUS, Inc., a California
corporation ("VIVUS California"). VIVUS California had Common Stock registered
pursuant to Section 12(g) of the Securities Exchange Act of 1934 (the "Exchange
Act").

         (b) On May 24, 1996, VIVUS California merged into the Company to effect
a reincorporation into Delaware. Pursuant to the Agreement and Plan of Merger of
VIVUS, Inc., a Delaware Corporation, and VIVUS, Inc., a California corporation,
each share of VIVUS California's Common Stock, no par value, was automatically
converted into one share of the Company's Common Stock, $0.001 par value, on the
effective date of the merger. Each stock certificate representing issued and
outstanding shares of VIVUS California's Common Stock, from the date of the
merger, represents the same number of shares of the Company's Common Stock.

Item 3. Securities to be Registered

         The Company currently has 30,000,000 shares of authorized Common Stock,
of which 13,804,665 shares had been issued as of May 31, 1996. None of such
issued shares were held in treasury as of May 31, 1996.

Item 4. Description of Registrant's Securities to be Registered

         The Company's security to be registered hereunder is its Common Stock.
The holders of Common Stock are entitled to one vote for each share held of
record on all matters submitted to a vote of stockholders.

         Each outstanding share of the Company's Common Stock is entitled to one
Preferred Share Purchase Right (a "Right"). Each Right entitles stockholders to
buy 1/1000th of a share of the Company's Series A Participating Preferred Stock
at an exercise price of $100.00. The Rights may, under certain circumstances,
become exercisable for Common Stock having a value equal to two times the fair
market value of such Common Stock following the tenth day after a person or
group announces acquisition of 20 percent or more of the Company's Common Stock,
or announces commencement of a tender offer, the consummation of which would
result in ownership by the person or group of 20 percent or more of the
Company's Common Stock. The Company is entitled to redeem the Rights at $0.01
per Right at any time on or before the tenth day following acquisition by a
person or group of 20 percent or more of the Company's Common Stock.


                                       -2-

<PAGE>   3
         Subject to preferences that may be applicable to any outstanding
Preferred Stock, holders of Common Stock are entitled to receive ratably such
dividends as may be declared by the Board of Directors out of funds legally
available therefor. In the event of a liquidation, dissolution or winding up of
the Company, holders of Common Stock are entitled to share ratably in all assets
remaining after payment of liabilities and the liquidation preference of any
outstanding Preferred Stock. Holders of Common Stock have no preemptive rights
and have no rights to convert their Common Stock into any other securities.

         There are no redemption or sinking fund provisions applicable to the
Common Stock. All outstanding shares of Common Stock are fully paid and
non-assessable.

         Pursuant to the Company's Certificate of Incorporation, the Board of
Directors has the authority, without further action by the stockholders, to
issue up to 5,000,000 shares of Preferred Stock in one or more series and to fix
the designations, powers, preferences and rights (including, without limitation,
dividend rights, conversion rights, voting rights, terms of redemption and
liquidation preferences) and the qualifications, limitations or restrictions
thereof, any or all of which may be greater than the rights of the Common Stock.
The Board of Directors, without stockholder approval, can issue Preferred Stock
with voting, conversion or other rights that could adversely affect the voting
power and other rights of the holders of Common Stock. Preferred Stock could
thus be issued quickly with terms calculated to delay or prevent a change in
control of the Company or make removal of management more difficult.
Additionally, the issuance of Preferred Stock may have the effect of decreasing
the market price of the Common Stock. At present, there are no shares of
Preferred Stock outstanding.

         Section 203 of the Delaware General Corporation Law, from which the
Company has not opted out in its Certificate of Incorporation, restricts certain
"business combinations" with "interested stockholders" for three years following
the date that a person or entity becomes an interested stockholder, unless the
Board of Directors approves the business combination and/or certain other
requirements are met.

Item 5. Financial Statements and Exhibits

         (a) Financial Statements

         Not applicable. The capital structure and balance sheet of the Company
immediately after the merger were substantially the same as those of VIVUS
California.

         (b) Exhibits

                  (i)      Proxy Statement or Prospectus. Not applicable. The
                           capital structure and balance sheet of the Company
                           immediately after the merger were substantially the
                           same as those of VIVUS California.


                                       -3-

<PAGE>   4
                  (ii) Other Exhibits.

                                2.1     Agreement and Plan of Merger.

                                3.1     Certificate of Incorporation.

                                3.2     Bylaws of Registrant.

                                4.1     Fourth Article of the Certificate of
                                        Incorporation (See Exhibit 3.1).

                           *****4.2     Amended and Restated Preferred Shares
                                        Rights Agreement, dated as of June 18,
                                        1996 by and between Vivus, Inc. and
                                        First Interstate Bank of California,
                                        including the Certificate of
                                        Determination, the form of Rights
                                        Certificate and the Summary of Rights
                                        attached thereto as Exhibits A, B and C,
                                        respectively.

                              *+10.1    Assignment Agreement by and between Alza
                                        Corporation and the Registrant dated
                                        December 31, 1993.

                              *+10.2    Memorandum of Understanding by and
                                        between Ortho Pharmaceutical Corporation
                                        and the Registrant dated February 25,
                                        1992.

                               *10.3    Assignment Agreement by and between
                                        Ortho Pharmaceutical Corporation and the
                                        Registrant dated June 9, 1992.

                              *+10.4    License Agreement by and between Gene A.
                                        Voss, M.D., Allen C. Eichler, M.D., and
                                        the Registrant dated December 28, 1992.

                              *+10.5A   License Agreement by and between Ortho
                                        Pharmaceutical Corporation and Kjell
                                        Holmquist AB dated June 23, 1989.

                              *+10.5B   Amendment by and between Kjell Holmquist
                                        AB and the Registrant dated July 3,
                                        1992.

                               *10.5C   Amendment by and between Kjell Holmquist
                                        AB and the Registrant dated April 22,
                                        1992.

                              *+10.5D   Stock Purchase Agreement by and between
                                        Kjell Holmquist AB and the Registrant
                                        dated April 22, 1992.

                              *+10.6A   License Agreement by and between Amsu,
                                        Ltd., and Ortho Pharmaceutical
                                        Corporation dated June 23, 1989.

                              *+10.6B   Amendment by and between Amsu, Ltd., and
                                        the Registrant dated July 3, 1992.

                               *10.6C   Amendment by and between Amsu, Ltd., and
                                        the Registrant dated April 22, 1992.

                              *+10.6D   Stock Purchase Agreement by and between
                                        Amsu, Ltd., and the Registrant dated
                                        July 10, 1992.

                               +10.7    Supply Agreement by and between Paco
                                        Pharmaceutical Services, Inc., and the
                                        Registrant dated November 10, 1993.

                              *+10.8    Agreement by and among Pharmatech, Inc.,
                                        Spolana Chemical Works AS, and the
                                        Registrant dated June 23, 1993.

                               *10.9    Master Services Agreement by and between
                                        the Registrant and Teknekron
                                        Pharmaceutical Systems dated August 9,
                                        1993.


                                       -4-

<PAGE>   5
                               *10.10   Lease by and between McCandless-Triad
                                        and the Registrant dated November 23,
                                        1992, as amended.

                              ++10.11   Form of Indemnification Agreement by and
                                        among the Registrant and the Directors
                                        and Officers of the Registrant.

                              **10.12   1991 Incentive Stock Plan and Form of
                                        Agreement, as amended.

                               *10.13   1994 Director Option Plan and Form of
                                        Agreement.

                               *10.14   Form of 1994 Employee Stock Purchase
                                        Plan and Form of Subscription Agreement.

                               *10.15   Stock Restriction Agreement between the
                                        Company and Virgil A. Place, M.D., dated
                                        November 7, 1991.

                               *10.16   Stock Purchase Agreement between the
                                        Company and Leland F. Wilson dated June
                                        26, 1991, as amended.

                               *10.17   Letter Agreement between the Registrant
                                        and Leland F. Wilson dated June 14, 1991
                                        concerning severance pay.

                               *10.18   Letter Agreement between the Registrant
                                        and Paul Doherty dated January 26, 1994
                                        concerning severance pay.

                              **10.19   Guaranteed Maximum Price Contract by and
                                        between the Registrant and Marshall
                                        Contractors, Inc., dated January 27,
                                        1995.

                              **10.20   Sub-lease by and among the Registrant,
                                        Argonaut Technologies, Inc.,
                                        ESCAgenetics Corp. and Tanklage
                                        Construction Co., dated March 13, 1995.

                            ***+10.21   Distribution Services Agreement between
                                        the Registrant and Synergy Logistics,
                                        Inc. (a wholly-owned subsidiary of
                                        Cardinal Health, Inc.) dated February 9,
                                        1996.

                            ***+10.22   Manufacturing Agreement between the
                                        Registrant and CHINOIN Pharmaceutical
                                        and Chemical Works Co., Ltd., dated
                                        December 20, 1995.

                           ****+10.24   Distribution Agreement made as of May
                                        29, 1996 between the Registrant and
                                        Astra.

                              ***22.1   List of Subsidiaries.

                         ---------------------------

                                    *   Incorporated by reference to the
                                        same-numbered exhibit filed with the
                                        Registrant's Registration Statement on
                                        Form S-1 No. 33-75698.

                                   **   Incorporated by reference to the
                                        same-numbered exhibit filed with the
                                        Registrant's Registration Statement on
                                        Form S-1 No. 33-90390.

                                  ***   Incorporated by reference to the
                                        same-numbered exhibit filed with the
                                        Registrant's Quarterly Report on Form
                                        10-Q for the quarter ended March 31,
                                        1996.

                                 ****   Incorporated by reference to the
                                        same-numbered exhibit filed with the
                                        Registrant's Current Report on
                                        Form 8-K/A filed with the Commission
                                        on June 21, 1996.


                                       -5-

<PAGE>   6
                                *****   Incorporated by reference to exhibit
                                        99.1 filed with the Registrants
                                        Amendment. No. 1 to Form 8-A filed with
                                        the Commission on June 24, 1996.

                                    +   Confidential treatment granted.

                                   ++   Superseding exhibit.



                                       -6-

<PAGE>   7
                                    SIGNATURE

         Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Company has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.


                                VIVUS, INC.


Date: June 24, 1996             By:   /s/ LELAND F. WILSON
                                   --------------------------------
                                          Leland F. Wilson
                                          President and Chief Executive Officer


                                       -7-

<PAGE>   8
                            LIST OF ATTACHED EXHIBITS


 2.1     Agreement and Plan of Merger

 3.1     Certificate of Incorporation

 3.2     Bylaws of Registrant

 4.1     Fourth Article of the Certificate of Incorporation (See Exhibit 3.1)

10.11    Form of Indemnification Agreement by and among the Registrant and the
         Directors and Officers of the Registrant.


                                       -8-





<PAGE>   1
                                  EXHIBIT 2.1

                          AGREEMENT AND PLAN OF MERGER
                                 OF VIVUS, INC.
                             A DELAWARE CORPORATION
                                       AND
                            A CALIFORNIA CORPORATION


         THIS AGREEMENT AND PLAN OF MERGER dated as of May 22, 1996, (the
"Agreement") is between VIVUS, Inc., a Delaware corporation ("VIVUS-Delaware")
and VIVUS, Inc., a California corporation ("VIVUS-California"). VIVUS-Delaware
and VIVUS-California are sometimes referred to herein as the "Constituent
Corporations."

                                 R E C I T A L S

         A. VIVUS-Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of 35,000,000
shares, 30,000,000 of which are designated "Common Stock," $.001 par value and
5,000,000 of which are designated "Preferred Stock", $.001 par value. As of the
date of this Agreement of Merger, 1,000 shares of Common Stock were issued and
outstanding, all of which were held by VIVUS-California. No shares of Preferred
Stock were outstanding.

         B. VIVUS-California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 35,000,000
shares, 30,000,000 of which are designated "Common Stock", no par value and
5,000,000 of which are designated "Preferred Stock", no par value. As of the
date of this Agreement of Merger, 13,604,421
 shares of Common Stock were issued
and outstanding. No shares of Preferred Stock were issued and outstanding.

         C. The Board of Directors of VIVUS-California has determined that, for
the purpose of effecting the reincorporation of VIVUS-California in the State of
Delaware, it is advisable and in the best interests of VIVUS-California that
VIVUS-California merge with and into VIVUS-Delaware upon the terms and
conditions herein provided.

         D. The respective Boards of Directors of VIVUS-Delaware and
VIVUS-California have approved this Agreement and have directed that this
Agreement be submitted to a vote of their respective stockholders and executed
by the undersigned officers.

         NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, VIVUS-Delaware and VIVUS-California hereby agree, subject to
the terms and conditions hereinafter set forth, as follows:


                                    I. MERGER

         1.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California General Corporation Law,
VIVUS-California shall be merged with and into VIVUS-Delaware (the "Merger"),
the separate existence of VIVUS-California shall

<PAGE>   2
cease and VIVUS-Delaware shall be, and is herein sometimes referred as, the
"Surviving Corporation", and the name of the Surviving Corporation shall be
VIVUS, Inc.

         1.2 Filing and Effectiveness. The Merger shall become effective when
the following actions shall have been completed:

                  (a) This Agreement and Merger shall have been adopted and
approved by the stockholders of each Constituent Corporation in accordance with
the requirements of the Delaware General Corporation Law and the California
General Corporation Law;

                  (b) All of the conditions precedent to the consummation of the
Merger specified in this Agreement shall have been satisfied or duly waived by
the party entitled to satisfaction thereof;

                  (c) An executed Agreement and Plan of Merger meeting the
requirements of the Delaware General Corporation Law shall have been filed with
the Secretary of State of the State of Delaware; and

         The date and time when the Merger shall become effective, as aforesaid,
is herein called the "Effective Date of the Merger."

         1.3 Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of VIVUS-California shall cease and VIVUS-Delaware, as the
Surviving Corporation, (i) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior to the Effective Date of
the Merger, (ii) shall be subject to all actions previously taken by its and
VIVUS-California's Board of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of VIVUS-California
in the manner more fully set forth in Section 259 of the Delaware General
Corporation Law, (iv) shall continue to be subject to all of the debts,
liabilities and obligations of VIVUS-Delaware as constituted immediately prior
to the Effective Date of the Merger, and (v) shall succeed, without other
transfer, to all of the debts, liabilities and obligations of VIVUS-California
in the same manner as if VIVUS-Delaware had itself incurred them, all as more
fully provided under the applicable provisions of the Delaware General
Corporation Law and the California Corporations Code.

                  II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS

         2.1 Certificate of Incorporation. The Certificate of Incorporation of
VIVUS-Delaware as in effect immediately prior to the Effective Date of the
Merger shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.

         2.2 Bylaws. The Bylaws of VIVUS-Delaware as in effect immediately prior
to the Effective Date of the Merger shall continue in full force and effect as
the Bylaws of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.


                                       -2-

<PAGE>   3
         2.3 Directors and Officers. The directors and officers of
VIVUS-California immediately prior to the Effective Date of the Merger shall be
the directors and officers of the Surviving Corporation until their successors
shall have been duly elected and qualified or until as otherwise provided by
law, the Certificate of Incorporation of the Surviving Corporation or the Bylaws
of the Surviving Corporation.


                       III. MANNER OF CONVERSION OF STOCK

         3.1 VIVUS-California Common Shares. Upon the Effective Date of the
Merger, each share of VIVUS-California Common Stock, no par value, issued and
outstanding immediately prior thereto shall by virtue of the Merger and without
any action by the Constituent Corporations, the holder of such shares or any
other person, be converted into and exchanged for one fully paid and
nonassessable share of Common Stock, no par value, of the Surviving Corporation.
No fractional share interests of Surviving Corporation Common Stock shall be
issued. In lieu thereof, any fractional share interests to which a holder would
otherwise be entitled shall be aggregated.


         3.2 VIVUS-California Options, Stock Purchase Rights and Convertible
Securities.

                  (a) Upon the Effective Date of the Merger, the Surviving
Corporation shall assume the obligations of VIVUS-California under, and
continue, the option plans (including without limitation the 1991 Incentive
Stock Plan, the 1994 Director Option Plan and the 1994 Employee Stock Purchase
Plan) and all other employee benefit plans and the Preferred Shares Rights
Agreement of VIVUS-California. Each outstanding and unexercised option, other
right to purchase, or security convertible into, VIVUS-California Common Stock
(a "Right") shall become, subject to the provisions in paragraph (c) hereof, an
option, right to purchase or a security convertible into the Surviving
Corporation's Common Stock on the basis of one share of the Surviving
Corporation's Common Stock for each one share of VIVUS-California Common Stock
issuable pursuant to any such Right, on the same terms and conditions and at an
exercise price equal to the exercise price applicable to any such
VIVUS-California Right at the Effective Date of the Merger. This paragraph
3.2(a) shall not apply to VIVUS-California Common Stock. Such Common Stock is
subject to paragraph 3.1.

                  (b) A number of shares of the Surviving Corporation's Common
Stock shall be reserved for issuance upon the exercise of options, stock
purchase rights and convertible securities equal to the number of shares of
VIVUS-California Common Stock so reserved immediately prior to the Effective
Date of the Merger.

                  (c) With the exception of Rights assumed pursuant to the
Preferred Shares Rights Agreement, the assumed Rights shall not entitle any
holder thereof to a fractional share upon exercise or conversion. In addition,
no "additional benefits" (within the meaning of Section 424(a)(2) of the
Internal Revenue Code of 1986, as amended) shall be accorded to the optionees
pursuant to the assumption of their options.


                                       -3-

<PAGE>   4
         3.3 VIVUS-Delaware Common Stock. Upon the Effective Date of the Merger,
each share of Common Stock, $.001 par value, of VIVUS-Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by VIVUS-Delaware, the holder of such shares or any other person, be
cancelled and returned to the status of authorized but unissued shares.

         3.4 Exchange of Certificates. After the Effective Date of the Merger,
each holder of an outstanding certificate representing shares of
VIVUS-California Common Stock may be asked to surrender the same for
cancellation to First Interstate Bank of California (the "Exchange Agent"), and
each such holder shall be entitled to receive in exchange therefor a certificate
or certificates representing the number of shares of the Surviving
Corporation's Common Stock, as the case may be, into which the surrendered
shares were converted as herein provided. Until so surrendered, each outstanding
certificate theretofore representing shares of VIVUS-California Common Stock
shall be deemed for all purposes to represent the number of shares of the
Surviving Corporation's Common Stock, respectively, into which such shares of
VIVUS-California Common Stock, as the case may be, were converted in the Merger.

         The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any such outstanding certificate shall,
until such certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Corporation or the Exchange Agent, have
and be entitled to exercise any voting and other rights with respect to and to
receive dividends and other distributions upon the shares of Common Stock of
the Surviving Corporation represented by such outstanding certificate as
provided above.

         Each certificate representing Common Stock of the Surviving Corporation
so issued in the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of VIVUS-California so
converted and given in exchange therefore, unless otherwise determined by the
Board of Directors of the Surviving Corporation in compliance with applicable
laws.

         If any certificate for shares of the Surviving Corporation's stock is
to be issued in a name other than that in which the certificate surrendered in
exchange therefor is registered, it shall be a condition of issuance thereof
that the certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer, that such transfer otherwise be proper and comply with
applicable securities laws and that the person requesting such transfer pay to
the Exchange Agent any transfer or other taxes payable by reason of issuance of
such new certificate in a name other than that of the registered holder of the
certificate surrendered or establish to the satisfaction of the Surviving
Corporation that such tax has been paid or is not payable.


                                       -4-

<PAGE>   5
                                   IV. GENERAL

         4.1 Covenants of VIVUS-Delaware. VIVUS-Delaware covenants and agrees
that it will, on or before the Effective Date of the Merger:

                  (a) Qualify to do business as a foreign corporation in the
State of California and in connection therewith irrevocably appoint an agent for
service of process as required under the provisions of Section 2105 of the
California General Corporation Law.

                  (b) File any and all documents with the California Franchise
Tax Board necessary for the assumption by VIVUS-Delaware of all of the franchise
tax liabilities of VIVUS-California.

                  (c) Take such other actions as may be required by the
California General Corporation Law.

         4.2 Further Assurances. From time to time, as and when required by
VIVUS-Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of VIVUS-California such deeds and other instruments, and
there shall be taken or caused to be taken by it such further and other actions
as shall be appropriate or necessary in order to vest or perfect in or conform
of record or otherwise by VIVUS-Delaware the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of VIVUS-California and otherwise to carry out the purposes of
this Agreement, and the officers and directors of VIVUS-Delaware are fully
authorized in the name and on behalf of VIVUS-California or otherwise to take
any and all such action and to execute and deliver any and all such deeds and
other instruments.

         4.3 Abandonment. At any time before the Effective Date of the Merger,
this Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either VIVUS-California or of
VIVUS-Delaware, or of both, notwithstanding the approval of this Agreement by
the shareholders of VIVUS-California or by the sole stockholder of
VIVUS-Delaware, or by both.

         4.4 Amendment. The Boards of Directors of the Constituent Corporations
may amend this Agreement at any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the Secretary of State of the States of
California and Delaware, provided that an amendment made subsequent to the
adoption of this Agreement by the stockholders of either Constituent Corporation
shall not: (1) alter or change the amount or kind of shares, securities, cash,
property and/or rights to be received in exchange for or on conversion of all or
any of the shares of any class or series thereof of such Constituent
Corporation, (2) alter or change any term of the Certificate of Incorporation of
the Surviving Corporation to be effected by the Merger, or (3) alter or change
any of the terms and conditions of this Agreement if such alteration or change
would adversely affect the holders of any class or series of capital stock of
any Constituent Corporation.


                                       -5-

<PAGE>   6
         4.5 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is 1209 Orange Street, Wilmington, County
of New Castle, DE 19801 and The Corporation Trust Company is the registered
agent of the Surviving Corporation at such address.

         4.6 Agreement. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 545 Middlefield
Road, Menlo Park, California 94025 and copies thereof will be furnished to any
stockholder of either Constituent Corporation, upon request and without cost.

         4.7 Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
California General Corporation Law.

         4.8 FIRPTA Notification. (a) On the Effective Date of the Merger,
VIVUS-California shall deliver to VIVUS-Delaware, as agent for the shareholders
of VIVUS-California, a properly executed statement (the "Statement")
substantially in the form attached hereto as Exhibit A. VIVUS-Delaware shall
retain the Statement for a period of not less than seven years and shall, upon
request, provide a copy thereof to any person that was a shareholder of
VIVUS-California immediately prior to the Merger. In consequence of the approval
of the Merger by the shareholders of VIVUS-California, (i) such shareholders
shall be considered to have requested that the Statement be delivered to
VIVUS-Delaware as their agent and (ii) VIVUS-Delaware shall be considered to
have received a copy of the Statement at the request of the VIVUS-California
shareholders for purposes of satisfying VIVUS-Delaware's obligations under
Treasury Regulation Section 1.1445-2(c)(3).

         (b) VIVUS-California shall deliver to the Internal Revenue Service a
notice regarding the Statement in accordance with the requirements of Treasury
Regulation Section 1.897-2(h)(2).

         4.9 Counterparts. In order to facilitate the filing and recording of
this Agreement, the same may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.


                                       -6-

<PAGE>   7
         IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of VIVUS-Delaware and VIVUS-California is
hereby executed on behalf of each of such two corporations and attested by their
respective officers thereunto duly authorized.

                                       VIVUS, Inc.
                                       a Delaware corporation


                                       By:   /s/ Leland F. Wilson
                                             ---------------------------   
                                             Leland F. Wilson, President
                                             and Chief Executive Officer

ATTEST:


/s/ Mario M. Rosati
- ---------------------------
Mario M. Rosati, Secretary




                                       VIVUS, Inc.
                                       a California corporation



                                       By:   /s/ Leland F. Wilson
                                             ----------------------------   
                                             Leland F. Wilson, President
                                             and Chief Executive Officer


ATTEST:


/s/ Mario M. Rosati
- ---------------------------
Mario M. Rosati, Secretary


                                       -7-

<PAGE>   8
                                    EXHIBIT A



                                                               __________, 1996



TO THE SHAREHOLDERS OF VIVUS, Inc.:

         In connection with the reincorporation (the "Reincorporation") in
Delaware of VIVUS, Inc., a California corporation (the "Company"), pursuant to
the Agreement and Plan of Merger (the "Agreement") dated as of May ___, 1996
between the Company and VIVUS, Inc., a Delaware corporation and wholly-owned
subsidiary of the Company ("VIVUS-Delaware"), your shares of Company stock will
be replaced by shares of stock in VIVUS-Delaware.

          In order to establish that (i) you will not be subject to tax under
Section 897 of the Internal Revenue Code of 1986, as amended (the "Code"), in
consequence of the Reincorporation and (ii) VIVUS-Delaware will not be required
under Section 1445 of the Code to withhold taxes from the VIVUS-Delaware stock
that you will receive in connection therewith, the Company hereby represents to
you that, as of the date of this letter, shares of Company stock do not
constitute a "United States real property interest" within the meaning of
Section 897(c) of the Code and the regulations issued thereunder.

         A copy of this letter will be delivered to VIVUS-Delaware pursuant to
Section 4.8 of the Agreement.

         Under penalties of perjury, the undersigned officer of the Company
hereby declares that, to the best knowledge and belief of the undersigned, the
facts set forth herein are true and correct.

                                            Sincerely,


                                            _______________________________
                                            Leland F. Wilson, President and
                                              Chief Executive Officer



<PAGE>   1
                                  EXHIBIT 3.1


                          CERTIFICATE OF INCORPORATION

                                       OF

                                  VIVUS, Inc.


                                   ARTICLE I

         The name of the corporation is VIVUS, Inc. (the "Corporation").


                                   ARTICLE II

         The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle,
Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.


                                  ARTICLE III

         The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.


                                   ARTICLE IV

         The Corporation is authorized to issue two classes of shares of stock
to be designated, respectively, Common Stock, $0.001 par value, and Preferred
Stock, $0.001 par value. The total number of shares that the Corporation is
authorized to issue is 35,000,000 shares. The number of shares of Common Stock
authorized is 30,000,000. The number of shares of Preferred authorized is
5,000,000.

         The Preferred Stock may be issued from time to time in one or more
series pursuant to a resolution or resolutions providing for such issue duly
adopted by the board of directors (authority to do so being hereby expressly
vested in the board). The board of directors is further authorized
 to determine
or alter the rights, preferences, privileges and restrictions granted to or
imposed upon any wholly unissued series of Preferred Stock and to fix the number
of shares of any series of Preferred Stock and the designation of any such
series of Preferred Stock. The board of directors, within the limits and
restrictions stated in any resolution or resolutions of the board of directors
originally fixing the number of shares constituting any series, may increase or
decrease (but not below the number of shares in any such series then
outstanding) the number of shares of any series subsequent to the issue of
shares of that series.

         The authority of the board of directors with respect to each such class
or series shall include, without limitation of the foregoing, the right to
determine and fix:





<PAGE>   2
                           (a)      the distinctive designation of such class or
series and the number of shares to constitute such class or series;

                           (b)      the rate at which dividends on the shares of
such class or series shall be declared and paid, or set aside for payment,
whether dividends at the rate so determined shall be cumulative or accruing, and
whether the shares of such class or series shall be entitled to any
participating or other dividends in addition to dividends at the rate so
determined, and if so, on what terms;

                           (c)      the right or obligation, if any, of the
corporation to redeem shares of the particular class or series of Preferred
Stock and, if redeemable, the price, terms and manner of such redemption;

                           (d)      the special and relative rights and
preferences, if any, and the amount or amounts per share, which the shares of
such class or series of Preferred Stock shall be entitled to receive upon any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation;

                           (e)      the terms and conditions, if any, upon which
shares of such class or series shall be convertible into, or exchangeable for,
shares of capital stock of any other class or series, including the price or
prices or the rate or rates of conversion or exchange and the terms of
adjustment, if any;

                           (f)      the obligation, if any, of the corporation
to retire, redeem or purchase shares of such class or series pursuant to a
sinking fund or fund of a similar nature or otherwise, and the terms and
conditions of such obligation;

                           (g)      voting rights, if any, on the issuance of
additional shares of such class or series or any shares of any other class or
series of Preferred Stock;

                           (h)      limitations, if any, on the issuance of
additional shares of such class or series or any shares of any other class or
series of Preferred Stock; and

                           (i)      such other preferences, powers,
qualifications, special or relative rights and privileges thereof as the board
of directors of the corporation, acting in accordance with this Restated
Certificate of Incorporation, may deem advisable and are not inconsistent with
law and the provisions of this Restated Certificate of Incorporation.

                                   ARTICLE V

         The Corporation reserves the right to amend, alter, change, or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon the
stockholders herein are granted subject to this right.



                                      -2-


<PAGE>   3
                                   ARTICLE VI

         The Corporation is to have perpetual existence.


                                  ARTICLE VII

         1. Limitation of Liability. To the fullest extent permitted by the
General Corporation Law of the State of Delaware as the same exists or as may
hereafter be amended, a director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director.

         2. Indemnification. The Corporation may indemnify to the fullest extent
permitted by law any person made or threatened to be made a party to an action
or proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that such person or his or her testator or intestate is or
was a director, officer or employee of the Corporation, or any predecessor of
the Corporation, or serves or served at any other enterprise as a director,
officer or employee at the request of the Corporation or any predecessor to the
Corporation.

         3. Amendments. Neither any amendment nor repeal of this Article VII,
nor the adoption of any provision of the Corporation's Certificate of
Incorporation inconsistent with this Article VII, shall eliminate or reduce the
effect of this Article VII, in respect of any matter occurring, or any action or
proceeding accruing or arising or that, but for this Article VII, would accrue
or arise, prior to such amendment, repeal, or adoption of an inconsistent
provision.


                                  ARTICLE VIII

         In the event any shares of Preferred Stock shall be redeemed or
converted pursuant to the terms hereof, the shares so converted or redeemed
shall not revert to the status of authorized but unissued shares, but instead
shall be canceled and shall not be re-issuable by the Corporation.


                                   ARTICLE IX

         Holders of stock of any class or series of this corporation shall not
be entitled to cumulate their votes for the election of directors or any other
matter submitted to a vote of the stockholders, unless such cumulative voting is
required pursuant to Sections 2115 and/or 301.5 of the California Corporations
Code, in which event each such holder shall be entitled to as many votes as
shall equal the number of votes which (except for this provision as to
cumulative voting) such holder would be entitled to cast for the election of
directors with respect to his shares of stock multiplied by the number of
directors to be elected by him, and the holder may cast all of such votes for a
single director or may distribute them among the number of directors to be voted
for, or for any two or more of them as such holder may see fit, so long as the
name of the candidate for director shall have been placed in nomination prior to
the


                                      -3-


<PAGE>   4
voting and the stockholder, or any other holder of the same class or series of
stock, has given notice at the meeting prior to the voting of the intention to
cumulate votes.

                                   ARTICLE X

         1.       Number of Directors.  The number of directors which
constitutes the whole Board of Directors of the corporation shall be designated
in the Bylaws of the corporation.

         2.       Election of Directors.  Elections of directors need not be by
written ballot unless the Bylaws of the corporation shall so provide.


                                   ARTICLE XI

         In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter, amend or
repeal the Bylaws of the corporation.


                                  ARTICLE XII

         No action shall be taken by the stockholders of the corporation except
at an annual or special meeting of the stockholders called in accordance with
the Bylaws of the corporation, and no action shall be taken by the stockholders
by written consent.


                                  ARTICLE XIII

         Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of the Corporation.


                                  ARTICLE XIV

         The name and mailing address of the incorporator are:

                              Marnia Nichols, Esq.
                              Wilson, Sonsini, Goodrich & Rosati
                              650 Page Mill Road
                              Palo Alto, California  94304-1050


                                     * * *


                                      -4-


<PAGE>   5
         The undersigned incorporator hereby acknowledges that the above
Certificate of Incorporation of VIVUS, Inc. is her act and deed and that the
facts stated therein are true.




                                                        /s/ MARNIA NICHOLS
                                                        ----------------------
Dated:  May 16, 1996                                    Marnia Nichols






                                      -5-






<PAGE>   1

                                  EXHIBIT 3.2

                                     BYLAWS

                                       OF

                                  VIVUS, Inc.

                            (a Delaware Corporation)






<PAGE>   2
                                   BYLAWS OF

                                  VIVUS, Inc.
                            (a Delaware Corporation)

                               TABLE OF CONTENTS

                                                                            Page
                                                                            ----
ARTICLE I  -  CORPORATE OFFICES.............................................   1

    1.1       REGISTERED OFFICE.............................................   1
    1.2       OTHER OFFICES.................................................   1

ARTICLE II -  MEETINGS OF STOCKHOLDERS......................................   1

    2.1       PLACE OF MEETINGS.............................................   1
    2.2       ANNUAL MEETING................................................   1
    2.3       SPECIAL MEETING...............................................   2
    2.4       NOTICE OF STOCKHOLDERS' MEETINGS..............................   2
    2.5       NOTIFICATIONS OF NOMINATIONS AND PROPOSED BUSINESS. ..........   2
    2.6       MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE..................   4
    2.7       QUORUM........................................................   4
    2.8       ADJOURNED MEETING; NOTICE.....................................   4
    2.9       VOTING........................................................   5
    2.10      WAIVER OF NOTICE..............................................   5
    2.11      RECORD DATE FOR STOCKHOLDER NOTICE; VOTING....................   5
    2.12      PROXIES.......................................................   6
    2.13      ORGANIZATION..................................................   6
    2.14      LIST OF STOCKHOLDERS ENTITLED TO VOTE.........................   6

ARTICLE III - DIRECTORS.....................................................   7

    3.1       POWERS........................................................   7
    3.2       NUMBER OF DIRECTORS...........................................   7
    3.3       ELECTION AND TERM OF OFFICE OF DIRECTORS......................   7
    3.4       RESIGNATION AND VACANCIES.....................................   7
    3.5       PLACE OF MEETINGS; MEETINGS BY TELEPHONE......................   9
    3.6       REGULAR MEETINGS..............................................   9
    3.7       SPECIAL MEETINGS; NOTICE......................................   9
    3.8       QUORUM........................................................   9
    3.9       WAIVER OF NOTICE..............................................  10
    3.10      ADJOURNMENT...................................................  10
    3.11      NOTICE OF ADJOURNMENT.........................................  10
    3.12      BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING.............  10


                                      -i-


<PAGE>   3
                               TABLE OF CONTENTS

                                  (Continued)

                                                                            Page
                                                                            ----
    3.13      FEES AND COMPENSATION OF DIRECTORS............................  10
    3.14      APPROVAL OF LOANS TO OFFICERS.................................  11

ARTICLE IV -  COMMITTEES....................................................  11

    4.1       COMMITTEES OF DIRECTORS.......................................  11
    4.2       MEETINGS AND ACTION
 OF COMMITTEES.............................  12
    4.3       COMMITTEE MINUTES.............................................  12

ARTICLE V -   OFFICERS......................................................  12

    5.1       OFFICERS......................................................  12
    5.2       ELECTION OF OFFICERS..........................................  12
    5.3       SUBORDINATE OFFICERS..........................................  13
    5.4       REMOVAL AND RESIGNATION OF OFFICERS...........................  13
    5.5       VACANCIES IN OFFICES..........................................  13
    5.6       CHAIRMAN OF THE BOARD.........................................  13
    5.7       PRESIDENT.....................................................  13
    5.8       VICE PRESIDENTS...............................................  14
    5.9       SECRETARY.....................................................  14
    5.10      CHIEF FINANCIAL OFFICER.......................................  14

ARTICLE VI -  INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND
               OTHER AGENTS.................................................  15

    6.1       INDEMNIFICATION OF DIRECTORS AND OFFICERS.....................  15
    6.2       INDEMNIFICATION OF OTHERS.....................................  16
    6.3       INSURANCE.....................................................  16

ARTICLE VII - RECORDS AND REPORTS...........................................  16

    7.1       MAINTENANCE AND INSPECTION OF RECORDS.........................  16
    7.2       INSPECTION BY DIRECTORS.......................................  17
    7.3       ANNUAL STATEMENT TO STOCKHOLDERS..............................  17
    7.4       REPRESENTATION OF SHARES OF OTHER CORPORATIONS................  17
    7.5       CERTIFICATION AND INSPECTION OF BYLAWS........................  17


                                     -ii-


<PAGE>   4
                               TABLE OF CONTENTS

                                  (Continued)
                                                                            Page
                                                                            ----
ARTICLE VIII- GENERAL MATTERS...............................................  17

    8.1       RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING ........  17
    8.2       CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS.....................  18
    8.3       CORPORATE CONTRACTS AND INSTRUMENTS:  HOW EXECUTED............  18
    8.4       STOCK CERTIFICATES; TRANSFER; PARTLY PAID SHARES..............  18
    8.5       SPECIAL DESIGNATION ON CERTIFICATES...........................  19
    8.6       LOST CERTIFICATES.............................................  19
    8.7       TRANSFER AGENTS AND REGISTRARS................................  20
    8.8       CONSTRUCTION; DEFINITIONS.....................................  20

ARTICLE IX -  AMENDMENTS....................................................  20



                                     -iii-





<PAGE>   5
                                     BYLAWS

                                       OF

                                  VIVUS, Inc.

                            (a Delaware Corporation)

                                   ARTICLE I

                               CORPORATE OFFICES

         1.1      REGISTERED OFFICE

         The registered office of the corporation shall be fixed in the
certificate of incorporation of the corporation.

         1.2      OTHER OFFICES

         The board of directors may at any time establish branch or subordinate
offices at any place or places where the corporation is qualified to do
business.


                                   ARTICLE II

                            MEETINGS OF STOCKHOLDERS

         2.1      PLACE OF MEETINGS

         Meetings of stockholders shall be held at any place within or outside
the State of Delaware designated by the board of directors. In the absence of
any such designation, stockholders' meetings shall be held at the principal
executive office of the corporation.

         2.2      ANNUAL MEETING

         The annual meeting of stockholders shall be held each year on a date
and at a time designated by the board of directors. In the absence of such
designation, the annual meeting of stockholders shall be held on the third
Tuesday of May in each year at 10:00 a.m. However, if such day falls on a legal
holiday, then the meeting shall be held at the same time and place on the next
succeeding full business day. At the meeting, directors shall be elected, and
any other proper business may be transacted.





<PAGE>   6
         2.3      SPECIAL MEETING

         A special meeting of the stockholders may be called at any time by the
board of directors, or by the chairman of the board, or by the president, or by
one or more stockholders holding shares in the aggregate entitled to cast not
less than ten percent (10%) of the votes at that meeting.

         If a special meeting is called by any person or persons other than the
board of directors or the president or the chairman of the board, then the
request shall be in writing, specifying the time of such meeting and the general
nature of the business proposed to be transacted, and shall be delivered
personally or sent by registered mail or by telegraphic or other facsimile
transmission to the chairman of the board, the president, any vice president or
the secretary of the corporation. The officer receiving the request shall cause
notice to be promptly given to the stockholders entitled to vote, in accordance
with the provisions of Sections 2.4 and 2.5 of these bylaws, that a meeting will
be held at the time requested by the person or persons calling the meeting, so
long as that time is not less than thirty-five (35) nor more than sixty (60)
days after the receipt of the request. If the notice is not given within twenty
(20) days after receipt of the request, then the person or persons requesting
the meeting may give the notice. Nothing contained in this paragraph of this
Section 2.3 shall be construed as limiting, fixing or affecting the time when a
meeting of stockholders called by action of the board of directors may be held.

         2.4      NOTICE OF STOCKHOLDERS' MEETINGS

         All notices of meetings of stockholders shall be sent or otherwise
given in accordance with Section 2.6 of these bylaws not less than ten (10) (or,
if sent by third-class mail pursuant to Section 2.6 of these bylaws, thirty
(30)) nor more than sixty (60) days before the date of the meeting. The notice
shall specify the place, date, and hour of the meeting and (i) in the case of a
special meeting, the general nature of the business to be transacted (no
business other than that specified in the notice may be transacted) or (ii) in
the case of the annual meeting, those matters which the board of directors, at
the time of giving the notice, intends to present for action by the stockholders
(but subject to the provisions of the next paragraph of this Section 2.4 any
proper matter may be presented at the meeting for such action). The notice of
any meeting at which directors are to be elected shall include the name of any
nominee or nominees who, at the time of the notice, the board intends to present
for election.

         2.5      NOTIFICATIONS OF NOMINATIONS AND PROPOSED BUSINESS.

         Subject to the rights of holders of any class or series of stock having
a preference over the Common Stock as to dividends or upon liquidation,

                  (a)      nominations for the election of directors, and

                  (b)      business proposed to be brought before any 
                           stockholder meeting



                                      -2-



<PAGE>   7
may be made by the Board of Directors or proxy committee appointed by the Board
of Directors or by any stockholder entitled to vote in the election of directors
generally if such nomination or business proposed is otherwise proper business
before such meeting. However, any such stockholder may nominate one or more
persons for election as directors at a meeting or propose business to be brought
before a meeting, or both, only if such stockholder has given timely notice in
proper written form of his intent to make such nomination or nominations or to
propose such business. To be timely, such stockholder's notice must be delivered
to or mailed and received by the Secretary of the corporation not less than
thirty-five (35) days nor more than sixty (60) days prior to the meeting;
provided, however, that in the event that less than forty-five (45) days notice
or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the tenth day following the day on which
such notice of the date of the meeting was mailed or such public disclosure was
made. To be in proper form, a stockholder's notice to the Secretary shall set
forth:

                           (i)      the name and address of the stockholder who
                  intends to make the nominations or propose the business and, 
                  as the case may be, of the person or persons to be nominated 
                  or of the business to be proposed;

                           (ii)     a representation that the stockholder is a
                  holder of record of stock of the corporation entitled to vote
                  at such meeting and, if applicable, intends to appear in
                  person or by proxy at the meeting to nominate the person or
                  persons specified in the notice;

                           (iii)    if applicable, a description of all
                  arrangements or understandings between the stockholder and
                  each nominee and any other person or persons (naming such
                  person or persons) pursuant to which the nomination or
                  nominations are to be made by the stockholder;

                           (iv)     such other information regarding each
                  nominee or each matter of business to be proposed by such
                  stockholder as would be required to be included in a proxy
                  statement filed pursuant to the proxy rules of the Securities
                  and Exchange Commission had the nominee been nominated, or
                  intended to be nominated, or the matter been proposed, or
                  intended to be proposed by the Board of Directors; and

                           (v)      if applicable, the consent of each nominee 
                  to serve as director of the corporation if so elected.

         The Chairman of the meeting shall refuse to acknowledge the nomination
of any person or the proposal of any business not made in compliance with the
foregoing procedure.



                                      -3-


<PAGE>   8
         2.6      MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE

         Written notice of any meeting of stockholders shall be given either
personally or by first-class mail or by telegraphic or other written
communication. Notices not personally delivered shall be sent charges prepaid
and shall be addressed to the stockholder at the address of that stockholder
appearing on the books of the corporation or given by the stockholder to the
corporation for the purpose of notice. Notice shall be deemed to have been given
at the time when delivered personally or deposited in the mail or sent by
telegram or other means of written communication.

         An affidavit of the mailing or other means of giving any notice of any
stockholders' meeting, executed by the secretary, assistant secretary or any
transfer agent of the corporation giving the notice, shall be prima facie
evidence of the giving of such notice.

         2.7      QUORUM

         The holders of a majority in voting power of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum is not present or
represented at any meeting of the stockholders, then either (i) the chairman of
the meeting or (ii) the stockholders entitled to vote thereat, present in person
or represented by proxy, shall have power to adjourn the meeting in accordance
with Section 2.7 of these bylaws.

         When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which, by express provision of the laws of the State of Delaware or
of the certificate of incorporation or these bylaws, a different vote is
required, in which case such express provision shall govern and control the
decision of the question.

         If a quorum be initially present, the stockholders may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum, if any action taken is approved by a
majority of the stockholders initially constituting the quorum.

         2.8      ADJOURNED MEETING; NOTICE

         When a meeting is adjourned to another time and place, unless these
bylaws otherwise require, notice need not be given of the adjourned meeting if
the time and place thereof are announced at the meeting at which the adjournment
is taken. At the adjourned meeting the corporation may transact any business
that might have been transacted at the original meeting. If the adjournment is
for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.


                                      -4-


<PAGE>   9
         2.9      VOTING

         The stockholders entitled to vote at any meeting of stockholders shall
be determined in accordance with the provisions of Section 2.11 of these bylaws,
subject to the provisions of Sections 217 and 218 of the General Corporation Law
of Delaware (relating to voting rights of fiduciaries, pledgors and joint
owners, and to voting trusts and other voting agreements).

         Except as may be otherwise provided in the certificate of incorporation
or these bylaws, each stockholder shall be entitled to one vote for each share
of capital stock held by such stockholder and stockholders shall not be
entitled to cumulate their votes in the election of directors of with respect
to any matter submitted to a vote of the stockholders.

         Notwithstanding the foregoing, if the stockholders of the corporation
are entitled, pursuant to Sections 2115 and 301.5 of the California Corporations
Code, to cumulate their votes in the election of directors, each such
stockholder shall be entitled to cumulate votes (i.e., cast for any candidate a
number of votes greater than the number of votes that such stockholder normally
is entitled to cast) only if the candidates' names have been properly placed in
nomination (in accordance with these bylaws) prior to commencement of the
voting, and the stockholder requesting cumulative voting has given notice prior
to commencement of the voting of the stockholder's intention to cumulate votes.
If cumulative voting is properly requested, each holder of stock, or of any
class or classes or of a series or series thereof, who elects to cumulate votes
shall be entitled to as many votes as equals the number of votes that (absent
this provision as to cumulative voting) he or she would be entitled to cast for
the election of directors with respect to his or her shares of stock multiplied
by the number of directors to be elected by him, and he or she may cast all of
such votes for a single director or may distribute them among the number to be
voted for, or for any two or more of them, as he or she may see fit.

         2.10     WAIVER OF NOTICE

         Whenever notice is required to be given under any provision of the
General Corporation Law of Delaware or of the certificate of incorporation or
these bylaws, a written waiver thereof, signed by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders need be specified in any written waiver of notice unless so
required by the certificate of incorporation or these bylaws.

         2.11     RECORD DATE FOR STOCKHOLDER NOTICE; VOTING


                                      -5-


<PAGE>   10
         For purposes of determining the stockholders entitled to notice of any
meeting or to vote thereat, the board of directors may fix, in advance, a record
date, which shall not precede the date upon which the resolution fixing the
record date is adopted by the board of directors and which shall not be more
than sixty (60) days nor less than ten (10) days before the date of any such
meeting, and in such event only stockholders of record on the date so fixed are
entitled to notice and to vote, notwithstanding any transfer of any shares on
the books of the corporation after the record date.

         If the board of directors does not so fix a record date, the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the business day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the business day next preceding the day on which the
meeting is held.

         A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting
unless the board of directors fixes a new record date for the adjourned meeting,
but the board of directors shall fix a new record date if the meeting is
adjourned for more than thirty (30) days from the date set for the original
meeting.

         The record date for any other purpose shall be as provided in Section
8.1 of these bylaws.

         2.12     PROXIES

         Every person entitled to vote for directors, or on any other matter,
shall have the right to do so either in person or by one or more agents
authorized by a written proxy signed by the person and filed with the secretary
of the corporation, but no such proxy shall be voted or acted upon after three
(3) years from its date unless the proxy provides for a longer period. A proxy
shall be deemed signed if the stockholder's name is placed on the proxy (whether
by manual signature, typewriting, telegraphic transmission, telefacsimile or
otherwise) by the stockholder or the stockholder's attorney-in-fact. The
revocability of a proxy that states on its face that it is irrevocable shall be
governed by the provisions of Section 212(e) of the General Corporation Law of
Delaware.

         2.13     ORGANIZATION

         The president, or in the absence of the president, the chairman of the
board, or, in the absence of the president and the chairman of the board, one of
the corporation's vice presidents, shall call the meeting of the stockholders to
order, and shall act as chairman of the meeting. In the absence of the
president, the chairman of the board, and all of the vice presidents, the
stockholders shall appoint a chairman for such meeting. The chairman of any
meeting of stockholders shall determine the order of business and the procedures
at the meeting, including such matters as the regulation of the manner of voting
and the conduct of business. The secretary of the corporation shall act as
secretary of all meetings of the stockholders, but in the absence of the
secretary at any meeting of the stockholders, the chairman of the meeting may
appoint any person to act as secretary of the meeting.


                                      -6-


<PAGE>   11
         2.14     LIST OF STOCKHOLDERS ENTITLED TO VOTE

         The officer who has charge of the stock ledger of the corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.


                                   ARTICLE III

                                    DIRECTORS

         3.1      POWERS

         Subject to the provisions of the General Corporation Law of Delaware
and any limitations in the certificate of incorporation and these bylaws
relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
board of directors.

         3.2      NUMBER OF DIRECTORS

         The board of directors shall be not less than five (5) nor more than
seven (7) members. The exact number of directors shall be six (6) until changed,
within the limits specified above by a bylaw amending this Section 3.2 duly
adopted by the board of directors or by the stockholders. The indefinite number
of directors may be changed, or a definite number may be fixed without provision
for an indefinite number, by an amendment to this bylaw, duly adopted by the
board of directors or by the stockholders, or by a duly adopted amendment to the
certificate of incorporation.

         No reduction of the authorized number of directors shall have the
effect of removing any director before that director's term of office expires.

         3.3      ELECTION AND TERM OF OFFICE OF DIRECTORS

         Except as provided in Section 3.4 of these bylaws, directors shall be
elected at each annual meeting of stockholders to hold office until the next
annual meeting. Each director, including a


                                      -7-


<PAGE>   12
director elected or appointed to fill a vacancy, shall hold office until the
expiration of the term for which elected and until a successor has been elected
and qualified.

         3.4      RESIGNATION AND VACANCIES

         Any director may resign effective on giving written notice to the
chairman of the board, the president, the secretary or the board of directors,
unless the notice specifies a later time for that resignation to become
effective. If the resignation of a director is effective at a future time, the
board of directors may elect a successor to take office when the resignation
becomes effective.

         Vacancies in the board of directors may be filled by a majority of the
remaining directors, even if less than a quorum, or by a sole remaining
director; however, a vacancy created by the removal of a director by the vote of
the stockholders or by court order may be filled only by the affirmative vote of
a majority of the shares represented and voting at a duly held meeting at which
a quorum is present (which shares voting affirmatively also constitute a
majority of the required quorum). Each director so elected shall hold office
until the next annual meeting of the stockholders and until a successor has been
elected and qualified.

         Unless otherwise provided in the certificate of incorporation or these
bylaws:

                    (i) Vacancies and newly created directorships resulting from
any increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director.

                   (ii) Whenever the holders of any class or classes of stock or
series thereof are entitled to elect one or more directors by the provisions of
the certificate of incorporation, vacancies and newly created directorships of
such class or classes or series may be filled by a majority of the directors
elected by such class or classes or series thereof then in office, or by a sole
remaining director so elected.

         If at any time, by reason of death or resignation or other cause, the
corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the certificate of incorporation or these bylaws, or may apply
to the Court of Chancery for a decree summarily ordering an election as provided
in Section 211 of the General Corporation Law of Delaware.

         If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), then
the Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten (10) percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or


                                      -8-


<PAGE>   13
newly created directorships, or to replace the directors chosen by the directors
then in office as aforesaid, which election shall be governed by the provisions
of Section 211 of the General Corporation Law of Delaware as far as applicable.

         3.5      PLACE OF MEETINGS; MEETINGS BY TELEPHONE

         Regular meetings of the board of directors may be held at any place
within or outside the State of Delaware that has been designated from time to
time by resolution of the board. In the absence of such a designation, regular
meetings shall be held at the principal executive office of the corporation.
Special meetings of the board may be held at any place within or outside the
State of Delaware that has been designated in the notice of the meeting or, if
not stated in the notice or if there is no notice, at the principal executive
office of the corporation.

         Any meeting, regular or special, may be held by conference telephone or
similar communication equipment, so long as all directors participating in the
meeting can hear one another; and all such directors shall be deemed to be
present in person at the meeting.

         3.6      REGULAR MEETINGS

         Regular meetings of the board of directors may be held without notice
if the times of such meetings are fixed by the board of directors. If any
regular meeting day shall fall on a legal holiday, then the meeting shall be
held next succeeding full business day.

         3.7      SPECIAL MEETINGS; NOTICE

         Special meetings of the board of directors for any purpose or purposes
may be called at any time by the chairman of the board, the president, any vice
president, the secretary or any two directors.

         Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at that director's address
as it is shown on the records of the corporation. If the notice is mailed, it
shall be deposited in the United States mail at least four (4) days before the
time of the holding of the meeting. If the notice is delivered personally or by
telephone or telegram, it shall be delivered personally or by telephone or to
the telegraph company at least forty-eight (48) hours before the time of the
holding of the meeting. Any oral notice given personally or by telephone may be
communicated either to the director or to a person at the office of the director
who the person giving the notice has reason to believe will promptly communicate
it to the director. The notice need not specify the purpose or the place of the
meeting, if the meeting is to be held at the principal executive office of the
corporation.

         3.8      QUORUM

                                      -9-


<PAGE>   14
         A majority of the authorized number of directors shall constitute a
quorum for the transaction of business, except to adjourn as provided in Section
3.10 of these bylaws. Every act or decision done or made by a majority of the
directors present at a duly held meeting at which a quorum is present shall be
regarded as the act of the board of directors, subject to the provisions of the
certificate of incorporation and other applicable law.

         A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for that
meeting.

         3.9      WAIVER OF NOTICE

         Notice of a meeting need not be given to any director (i) who signs a
waiver of notice or a consent to holding the meeting or an approval of the
minutes thereof, whether before or after the meeting, or (ii) who attends the
meeting without protesting, prior thereto or at its commencement, the lack of
notice to such directors. All such waivers, consents, and approvals shall be
filed with the corporate records or made part of the minutes of the meeting. A
waiver of notice need not specify the purpose of any regular or special meeting
of the board of directors.

         3.10     ADJOURNMENT

         A majority of the directors present, whether or not constituting a
quorum, may adjourn any meeting to another time and place.

         3.11     NOTICE OF ADJOURNMENT

         Notice of the time and place of holding an adjourned meeting need not
be given unless the meeting is adjourned for more than twenty-four (24) hours.
If the meeting is adjourned for more than twenty-four (24) hours, then notice of
the time and place of the adjourned meeting shall be given before the adjourned
meeting takes place, in the manner specified in Section 3.7 of these bylaws, to
the directors who were not present at the time of the adjournment.

         3.12     BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING

         Any action required or permitted to be taken by the board of directors
may be taken without a meeting, provided that all members of the board
individually or collectively consent in writing to that action. Such action by
written consent shall have the same force and effect as a unanimous vote of the
board of directors. Such written consent and any counterparts thereof shall be
filed with the minutes of the proceedings of the board.

         3.13     FEES AND COMPENSATION OF DIRECTORS

         Directors and members of committees may receive such compensation, if
any, for their services and such reimbursement of expenses as may be fixed or
determined by resolution of the


                                      -10-


<PAGE>   15
board of directors. This Section 3.13 shall not be construed to preclude any
director from serving the corporation in any other capacity as an officer,
agent, employee or otherwise and receiving compensation for those services.

         3.14     APPROVAL OF LOANS TO OFFICERS

         The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or any of its
subsidiaries, including any officer or employee who is a director of the
corporation or any of its subsidiaries, whenever, in the judgment of the
directors, such loan, guaranty or assistance may reasonably be expected to
benefit the corporation. The loan, guaranty or other assistance may be with or
without interest and may be unsecured, or secured in such manner as the board of
directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing contained in this section shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute.


                                   ARTICLE IV

                                   COMMITTEES

         4.1      COMMITTEES OF DIRECTORS

         The board of directors may, by resolution adopted by a majority of the
authorized number of directors, designate one (1) or more committees, each
consisting of two or more directors, to serve at the pleasure of the board. The
board may designate one (1) or more directors as alternate members of any
committee, who may replace any absent member at any meeting of the committee.
The appointment of members or alternate members of a committee requires the vote
of a majority of the authorized number of directors. Any committee, to the
extent provided in the resolution of the board, shall have and may exercise all
the powers and authority of the board, but no such committee shall have the
power of authority to:

                  (a) amend the certificate of incorporation (except that a
committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) of the General Corporation Law of Delaware, fix
the designations and any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other class
or classes of stock of the corporation);

                  (b)      adopt an agreement of merger or consolidation under 
Sections 251 or 252 of the General Corporation Law of Delaware;


                                      -11-


<PAGE>   16
                  (c)      recommend to the stockholders the sale, lease or 
exchange of all or substantially all of the corporation's property and assets;

                  (d)      recommend to the stockholders a dissolution of the 
corporation or a revocation of a dissolution; or

                  (e) amend the bylaws of the corporation; and, unless the board
resolution establishing the committee, the bylaws or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law of Delaware.

         4.2      MEETINGS AND ACTION OF COMMITTEES

         Meetings and actions of committees shall be governed by, and held and
taken in accordance with, the provisions of Article III of these bylaws, Section
3.5 (place of meetings), Section 3.6 (regular meetings), Section 3.7 (special
meetings and notice), Section 3.8 (quorum), Section 3.9 (waiver of notice),
Section 3.10 (adjournment), Section 3.11 (notice of adjournment), and Section
3.12 (action without meeting), with such changes in the context of those bylaws
as are necessary to substitute the committee and its members for the board of
directors and its members; provided, however, that the time of regular meetings
of committees may be determined either by resolution of the board of directors
or by resolution of the committee, that special meetings of committees may also
be called by resolution of the board of directors, and that notice of special
meetings of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The board of directors
may adopt rules for the government of any committee not inconsistent with the
provisions of these bylaws.

         4.3      COMMITTEE MINUTES.

         Each committee shall keep regular minutes of its meetings and report
the same to the board of directors when required.


                                    ARTICLE V

                                    OFFICERS

         5.1      OFFICERS

         The officers of the corporation shall be a president, a secretary, and
a chief financial officer. The corporation may also have, at the discretion of
the board of directors, a chairman of the board, one or more vice presidents,
one or more assistant secretaries, one or more assistant treasurers, and


                                      -12-


<PAGE>   17
such other officers as may be appointed in accordance with the provisions of
Section 5.3 of these bylaws. Any number of offices may be held by the same
person.

         5.2      ELECTION OF OFFICERS

         The officers of the corporation, except such officers as may be
appointed in accordance with the provisions of Section 5.3 or Section 5.5 of
these bylaws, shall be chosen by the board, subject to the rights, if any, of an
officer under any contract of employment.

         5.3      SUBORDINATE OFFICERS

         The board of directors may appoint, or may empower the president to
appoint, such other officers as the business of the corporation may require,
each of whom shall hold office for such period, have such authority, and perform
such duties as are provided in these bylaws or as the board of directors may
from time to time determine.

         5.4      REMOVAL AND RESIGNATION OF OFFICERS

         Subject to the rights, if any, of an officer under any contract of
employment, any officer may be removed, either with or without cause, by the
board of directors at any regular or special meeting of the board or, except in
case of an officer chosen by the board of directors, by any officer upon whom
such power of removal may be conferred by the board of directors.

         Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.

         5.5      VACANCIES IN OFFICES

         A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these bylaws for regular appointments to that office.

         5.6      CHAIRMAN OF THE BOARD

         The chairman of the board, if such an officer be elected, shall, if
present, preside at meetings of the board of directors and exercise and perform
such other powers and duties as may from time to time be assigned to him by the
board of directors or as may be prescribed by these bylaws. If there is no
president, then the chairman of the board shall also be the chief executive
officer of the corporation and shall have the powers and duties prescribed in
Section 5.7 of these bylaws.

         5.7      PRESIDENT


                                      -13-


<PAGE>   18
         Subject to such supervisory powers, if any, as may be given by the
board of directors to the chairman of the board, if there be such an officer,
the president shall be the chief executive officer of the corporation and shall,
subject to the control of the board of directors, have general supervision,
direction, and control of the business and the officers of the corporation. He
shall preside at all meetings of the stockholders and, in the absence or
nonexistence of a chairman of the board, at all meetings of the board of
directors. He shall have the general powers and duties of management usually
vested in the office of president of a corporation, and shall have such other
powers and duties as may be prescribed by the board of directors or these
bylaws.

         5.8      VICE PRESIDENTS

         In the absence or disability of the president, the vice presidents, if
any, in order of their rank as fixed by the board of directors or, if not
ranked, a vice president designated by the board of directors, shall perform all
the duties of the president and when so acting shall have all the powers of, and
be subject to all the restrictions upon, the president. The vice presidents
shall have such other powers and perform such other duties as from time to time
may be prescribed for them respectively by the board of directors, these bylaws,
the president or the chairman of the board.

         5.9      SECRETARY

         The secretary shall keep or cause to be kept, at the principal
executive office of the corporation or such other place as the board of
directors may direct, a book of minutes of all meetings and actions of
directors, committees of directors and stockholders. The minutes shall show the
time and place of each meeting, whether regular or special (and, if special, how
authorized and the notice given), the names of those present at directors'
meetings or committee meetings, the number of shares present or represented at
stockholders' meetings, and the proceedings thereof.

         The secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the corporation's
transfer agent or registrar, as determined by resolution of the board of
directors, a share register, or a duplicate share register, showing the names of
all stockholders and their addresses, the number and classes of shares held by
each, the number and date of certificates evidencing such shares, and the number
and date of cancellation of every certificate surrendered for cancellation.

         The secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the board of directors required to be given by law or
by these bylaws. He shall keep the seal of the corporation, if one be adopted,
in safe custody and shall have such other powers and perform such other duties
as may be prescribed by the board of directors or by these bylaws.

         5.10  CHIEF FINANCIAL OFFICER

         The chief financial officer shall keep and maintain, or cause to be
kept and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital,


                                      -14-


<PAGE>   19
retained earnings, and shares. The books of account shall at all reasonable
times be open to inspection by any director.

         The chief financial officer shall deposit all money and other valuables
in the name and to the credit of the corporation with such depositaries as may
be designated by the board of directors. He shall disburse the funds of the
corporation as may be ordered by the board of directors, shall render to the
president and directors, whenever they request it, an account of all of his
transactions as chief financial officer and of the financial condition of the
corporation, and shall have such other powers and perform such other duties as
may be prescribed by the board of directors or these bylaws.

                                   ARTICLE VI

               INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES,
                                AND OTHER AGENTS

         6.1      INDEMNIFICATION OF DIRECTORS AND OFFICERS

         The corporation shall, to the maximum extent and in the manner
permitted by the General Corporation Law of Delaware as the same now exists or
may hereafter be amended, indemnify any person against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred in connection with any threatened, pending or completed
action, suit, or proceeding in which such person was or is a party or is
threatened to be made a party by reason of the fact that such person is or was a
director or officer of the corporation. For purposes of this Section 6.1, a
"director" or "officer" of the corporation shall mean any person (i) who is or
was a director or officer of the corporation, (ii) who is or was serving at the
request of the corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, or (iii) who was a
director or officer of a corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor
corporation.

         The corporation shall be required to indemnify a director or officer in
connection with an action, suit, or proceeding (or part thereof) initiated by
such director or officer only if the initiation of such action, suit, or
proceeding (or part thereof) by the director or officer was authorized by the
Board of Directors of the corporation.

         The corporation shall pay the expenses (including attorney's fees)
incurred by a director or officer of the corporation entitled to indemnification
hereunder in defending any action, suit or proceeding referred to in this
Section 6.1 in advance of its final disposition; provided, however, that payment
of expenses incurred by a director or officer of the corporation in advance of
the final disposition of such action, suit or proceeding shall be made only upon
receipt of an undertaking by the director or officer to repay all amounts
advanced if it should ultimately be determined that the director of officer is
not entitled to be indemnified under this Section 6.1 or otherwise.


                                      -15-


<PAGE>   20
         The rights conferred on any person by this Article shall not be
exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the corporation's Certificate of Incorporation,
these bylaws, agreement, vote of the stockholders or disinterested directors or
otherwise.

         Any repeal or modification of the foregoing provisions of this Article
shall not adversely affect any right or protection hereunder of any person in
respect of any act or omission occurring prior to the time of such repeal or
modification.

         6.2      INDEMNIFICATION OF OTHERS

         The corporation shall have the power, to the maximum extent and in the
manner permitted by the General Corporation Law of Delaware as the same now
exists or may hereafter be amended, to indemnify any person (other than
directors and officers) against expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement actually and reasonably incurred in
connection with any threatened, pending or completed action, suit, or
proceeding, in which such person was or is a party or is threatened to be made a
party by reason of the fact that such person is or was an employee or agent of
the corporation. For purposes of this Section 6.2, an "employee" or "agent" of
the corporation (other than a director or officer) shall mean any person (i) who
is or was an employee or agent of the corporation, (ii) who is or was serving at
the request of the corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or (iii) who was an
employee or agent of a corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor
corporation.

         6.3      INSURANCE

         The corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as such,
whether or not the corporation would have the power to indemnify him or her
against such liability under the provisions of the General Corporation Law of
Delaware.


                                   ARTICLE VII

                               RECORDS AND REPORTS

         7.1      MAINTENANCE AND INSPECTION OF RECORDS

         The corporation shall, either at its principal executive office or at
such place or places as designated by the board of directors, keep a record of
its stockholders listing their names and


                                      -16-


<PAGE>   21
addresses and the number and class of shares held by each stockholder, a copy of
these bylaws as amended to date, accounting books and other records of its
business and properties.

         Any stockholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal place of
business.

         7.2      INSPECTION BY DIRECTORS

         Any director shall have the right to examine (and to make copies of)
the corporation's stock ledger, a list of its stockholders and its other books
and records for a purpose reasonably related to his or her position as a
director.

         7.3      ANNUAL STATEMENT TO STOCKHOLDERS

         The board of directors shall present at each annual meeting, and at any
special meeting of the stockholders when called for by vote of the stockholders,
a full and clear statement of the business and condition of the corporation.

         7.4      REPRESENTATION OF SHARES OF OTHER CORPORATIONS

         The chairman of the board, if any, the president, any vice president,
the chief financial officer, the secretary or any assistant secretary of this
corporation, or any other person authorized by the board of directors or the
president or a vice president, is authorized to vote, represent and exercise on
behalf of this corporation all rights incident to any and all shares of the
stock of any other corporation or corporations standing in the name of this
corporation. The authority herein granted may be exercised either by such person
directly or by any other person authorized to do so by proxy or power of
attorney duly executed by such person having the authority.

         7.5      CERTIFICATION AND INSPECTION OF BYLAWS

         The original or a copy of these bylaws, as amended or otherwise altered
to date, certified by the secretary, shall be kept at the corporation's
principal executive office and shall be open to inspection by the stockholders
of the corporation, at all reasonable times during office hours.


                                  ARTICLE VIII


                                      -17-


<PAGE>   22
                                 GENERAL MATTERS

         8.1      RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING

         For purposes of determining the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any other lawful
action (other than action by stockholders by written consent without a meeting),
the board of directors may fix, in advance, a record date, which shall not be
more than sixty (60) days before any such action. In that case, only
stockholders of record at the close of business on the date so fixed are
entitled to receive the dividend, distribution or allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any transfer of any
shares on the books of the corporation after the record date so fixed, except as
otherwise provided in the General Corporation Law of Delaware.

         If the board of directors does not so fix a record date, then the
record date for determining stockholders for any such purpose shall be at the
close of business on the day on which the board adopts the applicable
resolution.

         8.2      CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS

         From time to time, the board of directors shall determine by resolution
which person or persons may sign or endorse all checks, drafts, other orders for
payment of money, notes or other evidences of indebtedness that are issued in
the name of or payable to the corporation, and only the persons so authorized
shall sign or endorse those instruments.

         8.3      CORPORATE CONTRACTS AND INSTRUMENTS:  HOW EXECUTED

         The board of directors, except as otherwise provided in these bylaws,
may authorize any officer or officers, or agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of the
corporation; such authority may be general or confined to specific instances.
Unless so authorized or ratified by the board of directors or within the agency
power of an officer, no officer, agent or employee shall have any power or
authority to bind the corporation by any contract or engagement or to pledge its
credit or to render it liable for any purpose or for any amount.

         8.4      STOCK CERTIFICATES; TRANSFER; PARTLY PAID SHARES

         The shares of the corporation shall be represented by certificates,
provided that the board of directors of the corporation may provide by
resolution or resolutions that some or all of any or all classes or series of
its stock shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the
corporation. Notwithstanding the adoption of such a resolution by the board of
directors, every holder of stock represented by certificates and, upon request,
every holder of uncertificated shares, shall be entitled to have a certificate
signed by, or in the name of the corporation by, the chairman or vice-chairman
of

                                      -18-


<PAGE>   23
the board of directors, or the president or vice-president, and by the
treasurer or an assistant treasurer, or the secretary or an assistant secretary
of such corporation representing the number of shares registered in certificate
form. Any or all of the signatures on the certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate has ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the corporation with the same effect as if he or she were such officer,
transfer agent or registrar at the date of issue.

         Certificates for shares shall be of such form and device as the board
of directors may designate and shall state the name of the record holder of the
shares represented thereby; its number; date of issuance; the number of shares
for which it is issued; a summary statement or reference to the powers,
designations, preferences or other special rights of such stock and the
qualifications, limitations or restrictions of such preferences and/or rights,
if any; a statement or summary of liens, if any; a conspicuous notice of
restrictions upon transfer or registration of transfer, if any; a statement as
to any applicable voting trust agreement; if the shares be assessable, or, if
assessments are collectible by personal action, a plain statement of such facts.

         Upon surrender to the secretary or transfer agent of the corporation of
a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.

         The corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to be paid
therefor. Upon the face or back of each stock certificate issued to represent
any such partly paid shares, or upon the books and records of the corporation in
the case of uncertificated partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Upon the declaration of any dividend on fully paid shares, the corporation shall
declare a dividend upon partly paid shares of the same class, but only upon the
basis of the percentage of the consideration actually paid thereon.

         8.5      SPECIAL DESIGNATION ON CERTIFICATES

         If the corporation is authorized to issue more than one class of stock
or more than one series of any class, then the powers, the designations, the
preferences and the relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate that the corporation shall
issue to represent such class or series of stock; provided, however, that,
except as otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements there may be set forth on the
face or back of the certificate that the corporation shall issue to represent
such class or series of stock a statement that the corporation will furnish
without charge to each stockholder who so requests the powers, the designations,
the preferences and the relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.


                                      -19-


<PAGE>   24
         8.6      LOST CERTIFICATES

         Except as provided in this Section 8.6, no new certificates for shares
shall be issued to replace a previously issued certificate unless the latter is
surrendered to the corporation and cancelled at the same time. The board of
directors may, in case any share certificate or certificate for any other
security is lost, stolen or destroyed, authorize the issuance of replacement
certificates on such terms and conditions as the board may require; the board
may require indemnification of the corporation secured by a bond or other
adequate security sufficient to protect the corporation against any claim that
may be made against it, including any expense or liability, on account of the
alleged loss, theft or destruction of the certificate or the issuance of the
replacement certificate.

         8.7      TRANSFER AGENTS AND REGISTRARS

         The board of directors may appoint one or more transfer agents or
transfer clerks, and one or more registrars, each of which shall be an
incorporated bank or trust company -- either domestic or foreign, who shall be
appointed at such times and places as the requirements of the corporation may
necessitate and the board of directors may designate.

         8.8      CONSTRUCTION; DEFINITIONS

         Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the General Corporation Law of Delaware shall
govern the construction of these bylaws. Without limiting the generality of this
provision, the singular number includes the plural, the plural number includes
the singular, and the term "person" includes both a corporation and a natural
person.


                                   ARTICLE IX

                                   AMENDMENTS

The original or other bylaws of the corporation may be adopted, amended or
repealed by the stockholders entitled to vote or by the board of directors of
the corporation. The fact that such power has been so conferred upon the
directors shall not divest the stockholders of the power, nor limit their power
to adopt, amend or repeal bylaws.

         Whenever an amendment or new bylaw is adopted, it shall be copied in
the book of bylaws with the original bylaws, in the appropriate place. If any
bylaw is repealed, the fact of repeal with the date of the meeting at which the
repeal was enacted or the filing of the operative written consent(s) shall be
stated in said book.


                                      -20-




<PAGE>   1
                                 EXHIBIT 10.11

                                   VIVUS, INC.

                            INDEMNIFICATION AGREEMENT

         This Indemnification Agreement ("Agreement") is effective as of June
14, 1996 by and between VIVUS, Inc., a Delaware corporation (the "Company"), and
Indemnitee ("Indemnitee").

         WHEREAS, effective as of the date hereof, VIVUS, Inc., a California
corporation, is reincorporating into Delaware;

         WHEREAS, the Company desires to attract and retain the services of
highly qualified individuals, such as Indemnitee, to serve the Company and its
related entities;

         WHEREAS, in order to induce Indemnitee to continue to provide services
to the Company, the Company wishes to provide for the indemnification of, and
the advancement of expenses to, Indemnitee to the maximum extent permitted by
law;

         WHEREAS, the Company and Indemnitee recognize the continued difficulty
in obtaining liability insurance for the Company's directors, officers,
employees, agents and fiduciaries, the significant increases in the cost of
such insurance and the general reductions in the coverage of such insurance;

         WHEREAS, the Company and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting directors, officers,
employees, agents and fiduciaries
 to expensive litigation risks at the same time
as the availability and coverage of liability insurance has been severely
limited; and

         WHEREAS, in connection with the Company's reincorporation, the Company
and Indemnitee desire to continue to have in place the additional protection
provided by an indemnification agreement to provide indemnification and
advancement of expenses to the Indemnitee to the maximum extent permitted by
Delaware law;

         WHEREAS, in view of the considerations set forth above, the Company
desires that Indemnitee shall be indemnified and advanced expenses by the
Company as set forth herein;

         NOW, THEREFORE, the Company and Indemnitee hereby agree as set forth
below.

         1. Certain Definitions.

                  (a) "Change in Control" shall mean, and shall be deemed to
have occurred if, on or after the date of this Agreement, (i) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended) or group acting in concert, other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Company
acting in such capacity or a corporation owned directly or indirectly by the
stockholders of the Company in



<PAGE>   2
substantially the same proportions as their ownership of stock of the Company,
becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing more than 50%
of the total voting power represented by the Company's then outstanding Voting
Securities, (ii) during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board of Directors of the Company
and any new director whose election by the Board of Directors or nomination for
election by the Company's stockholders was approved by a vote of at least two
thirds (2/3) of the directors then still in office who either were directors at
the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof,
(iii) the stockholders of the Company approve a merger or consolidation of the
Company with any other corporation other than a merger or consolidation which
would result in the Voting Securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into Voting Securities of the surviving entity) at least 80% of
the total voting power represented by the Voting Securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, or (iv) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the Company of (in one transaction or a series of related transactions) all
or substantially all of the Company's assets.

                  (b) "Claim" shall mean with respect to a Covered Event: any
threatened, pending or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that Indemnitee
in good faith believes might lead to the institution of any such action, suit,
proceeding or alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other.

                  (c) References to the "Company" shall include, in addition to
VIVUS, Inc., any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger to which VIVUS, Inc. (or any
of its wholly owned subsidiaries) is a party which, if its separate existence
had continued, would have had power and authority to indemnify its directors,
officers, employees, agents or fiduciaries, so that if Indemnitee is or was a
director, officer, employee, agent or fiduciary of such constituent corporation,
or is or was serving at the request of such constituent corporation as a
director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise,
Indemnitee shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as Indemnitee
would have with respect to such constituent corporation if its separate
existence had continued.

                  (d) "Covered Event" shall mean any event or occurrence related
to the fact that Indemnitee is or was a director, officer, employee, agent or
fiduciary of the Company, or any subsidiary of the Company, or is or was serving
at the request of the Company as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action or inaction on the part of Indemnitee
while serving in such capacity.


                                       -2-

<PAGE>   3
                  (e) "Expenses" shall mean any and all expenses (including
attorneys' fees and all other costs, expenses and obligations incurred in
connection with investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, to be a witness in or to
participate in, any action, suit, proceeding, alternative dispute resolution
mechanism, hearing, inquiry or investigation), judgments, fines, penalties and
amounts paid in settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld) of any Claim and any
federal, state, local or foreign taxes imposed on the Indemnitee as a result of
the actual or deemed receipt of any payments under this Agreement.

                  (f) "Expense Advance" shall mean a payment to Indemnitee
pursuant to Section 3 of Expenses in advance of the settlement of or final
judgement in any action, suit, proceeding or alternative dispute resolution
mechanism, hearing, inquiry or investigation which constitutes a Claim.

                  (g) "Independent Legal Counsel" shall mean an attorney or firm
of attorneys, selected in accordance with the provisions of Section 2(d) hereof,
who shall not have otherwise performed services for the Company or Indemnitee
within the last three years (other than with respect to matters concerning the
rights of Indemnitee under this Agreement, or of other Indemnitees under similar
indemnity agreements).

                  (h) References to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes assessed on
Indemnitee with respect to an employee benefit plan; and references to "serving
at the request of the Company" shall include any service as a director, officer,
employee, agent or fiduciary of the Company which imposes duties on, or involves
services by, such director, officer, employee, agent or fiduciary with respect
to an employee benefit plan, its participants or its beneficiaries; and if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to
be in the interest of the participants and beneficiaries of an employee benefit
plan, Indemnitee shall be deemed to have acted in a manner "not opposed to the
best interests of the Company" as referred to in this Agreement.

                  (i) "Reviewing Party" shall mean, subject to the provisions of
Section 2(d), any person or body appointed by the Board of Directors in
accordance with applicable law to review the Company's obligations hereunder and
under applicable law, which may include a member or members of the Company's
Board of Directors, Independent Legal Counsel or any other person or body not a
party to the particular Claim for which Indemnitee is seeking indemnification.

                  (j) "Section" refers to a section of this Agreement unless
otherwise indicated.

                  (k) "Voting Securities" shall mean any securities of the
Company that vote generally in the election of directors.



                                       -3-

<PAGE>   4
         2. Indemnification.

                  (a) Indemnification of Expenses. Subject to the provisions of
Section 2(b) below, the Company shall indemnify Indemnitee for Expenses to the
fullest extent permitted by law if Indemnitee was or is or becomes a party to or
witness or other participant in, or is threatened to be made a party to or
witness or other participant in, any Claim (whether by reason of or arising in
part out of a Covered Event), including all interest, assessments and other
charges paid or payable in connection with or in respect of such Expenses.

                  (b) Review of Indemnification Obligations. Notwithstanding the
foregoing, in the event any Reviewing Party shall have determined (in a written
opinion, in any case in which Independent Legal Counsel is the Reviewing Party)
that Indemnitee is not entitled to be indemnified hereunder under applicable
law, (i) the Company shall have no further obligation under Section 2(a) to make
any payments to Indemnitee not made prior to such determination by such
Reviewing Party, and (ii) the Company shall be entitled to be reimbursed by
Indemnitee (who hereby agrees to reimburse the Company) for all Expenses
theretofore paid to Indemnitee to which Indemnitee is not entitled hereunder
under applicable law; provided, however, that if Indemnitee has commenced or
thereafter commences legal proceedings in a court of competent jurisdiction to
secure a determination that Indemnitee is entitled to be indemnified hereunder
under applicable law, any determination made by any Reviewing Party that
Indemnitee is not entitled to be indemnified hereunder under applicable law
shall not be binding and Indemnitee shall not be required to reimburse the
Company for any Expenses theretofore paid in indemnifying Indemnitee until a
final judicial determination is made with respect thereto (as to which all
rights of appeal therefrom have been exhausted or lapsed). Indemnitee's
obligation to reimburse the Company for any Expenses shall be unsecured and no
interest shall be charged thereon.

                  (c) Indemnitee Rights on Unfavorable Determination; Binding
Effect. If any Reviewing Party determines that Indemnitee substantively is not
entitled to be indemnified hereunder in whole or in part under applicable law,
Indemnitee shall have the right to commence litigation seeking an initial
determination by the court or challenging any such determination by such
Reviewing Party or any aspect thereof, including the legal or factual bases
therefor, and, subject to the provisions of Section 15, the Company hereby
consents to service of process and to appear in any such proceeding. Absent
such litigation, any determination by any Reviewing Party shall be conclusive
and binding on the Company and Indemnitee.

                  (d) Selection of Reviewing Party; Change in Control. If there
has not been a Change in Control, any Reviewing Party shall be selected by the
Board of Directors, and if there has been such a Change in Control (other than a
Change in Control which has been approved by a majority of the Company's Board
of Directors who were directors immediately prior to such Change in Control),
any Reviewing Party with respect to all matters thereafter arising concerning
the rights of Indemnitee to indemnification of Expenses under this Agreement or
any other agreement or under the Company's Certificate of Incorporation or
Bylaws as now or hereafter in effect, or under any other applicable law, if
desired by Indemnitee, shall be Independent Legal Counsel selected by


                                       -4-

<PAGE>   5
Indemnitee and approved by the Company (which approval shall not be unreasonably
withheld). Such counsel, among other things, shall render its written opinion to
the Company and Indemnitee as to whether and to what extent Indemnitee would be
entitled to be indemnified hereunder under applicable law and the Company agrees
to abide by such opinion. The Company agrees to pay the reasonable fees of the
Independent Legal Counsel referred to above and to indemnify fully such counsel
against any and all expenses (including attorneys' fees), claims, liabilities
and damages arising out of or relating to this Agreement or its engagement
pursuant hereto. Notwithstanding any other provision of this Agreement, the
Company shall not be required to pay Expenses of more than one Independent Legal
Counsel in connection with all matters concerning a single Indemnitee, and such
Independent Legal Counsel shall be the Independent Legal Counsel for any or all
other Indemnitees unless (i) the employment of separate counsel by one or more
Indemnitees has been previously authorized by the Company in writing, or (ii) an
Indemnitee shall have provided to the Company a written statement that such
Indemnitee has reasonably concluded that there may be a conflict of interest
between such Indemnitee and the other Indemnitees with respect to the matters
arising under this Agreement.

                  (e) Mandatory Payment of Expenses. Notwithstanding any other
provision of this Agreement other than Section 10 hereof, to the extent that
Indemnitee has been successful on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, in defense of any
Claim, Indemnitee shall be indemnified against all Expenses incurred by
Indemnitee in connection therewith.

         3. Expense Advances.

                  (a) Obligation to Make Expense Advances. Upon receipt of a
written undertaking by or on behalf of the Indemnitee to repay such amounts if
it shall ultimately be determined that the Indemnitee is not entitled to be
indemnified therefore by the Company hereunder under applicable law, the Company
shall make Expense Advances to Indemnitee.

                  (b) Form of Undertaking. Any obligation to repay any Expense
Advances hereunder pursuant to a written undertaking by the Indemnitee shall be
unsecured and no interest shall be charged thereon.

                  (c) Determination of Reasonable Expense Advances. The parties
agree that for the purposes of any Expense Advance for which Indemnitee has made
written demand to the Company in accordance with this Agreement, all Expenses
included in such Expense Advance that are certified by affidavit of Indemnitee's
counsel as being reasonable shall be presumed conclusively to be reasonable.

         4. Procedures for Indemnification and Expense Advances.

                  (a) Timing of Payments. All payments of Expenses (including
without limitation Expense Advances) by the Company to the Indemnitee pursuant
to this Agreement shall be made to


                                       -5-

<PAGE>   6
the fullest extent permitted by law as soon as practicable after written demand
by Indemnitee therefor is presented to the Company, but in no event later than
thirty (30) business days after such written demand by Indemnitee is presented
to the Company, except in the case of Expense Advances, which shall be made no
later than ten (10) business days after such written demand by Indemnitee is
presented to the Company.

                  (b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
condition precedent to Indemnitee's right to be indemnified or Indemnitee's
right to receive Expense Advances under this Agreement, give the Company notice
in writing as soon as practicable of any Claim made against Indemnitee for which
indemnification will or could be sought under this Agreement. Notice to the
Company shall be directed to the Chief Executive Officer of the Company at the
address shown on the signature page of this Agreement (or such other address as
the Company shall designate in writing to Indemnitee). In addition, Indemnitee
shall give the Company such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.

                  (c) No Presumptions; Burden of Proof. For purposes of this
Agreement, the termination of any Claim by judgment, order, settlement (whether
with or without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by this
Agreement or applicable law. In addition, neither the failure of any Reviewing
Party to have made a determination as to whether Indemnitee has met any
particular standard of conduct or had any particular belief, nor an actual
determination by any Reviewing Party that Indemnitee has not met such standard
of conduct or did not have such belief, prior to the commencement of legal
proceedings by Indemnitee to secure a judicial determination that Indemnitee
should be indemnified under this Agreement under applicable law, shall be a
defense to Indemnitee's claim or create a presumption that Indemnitee has not
met any particular standard of conduct or did not have any particular belief. In
connection with any determination by any Reviewing Party or otherwise as to
whether the Indemnitee is entitled to be indemnified hereunder under applicable
law, the burden of proof shall be on the Company to establish that Indemnitee is
not so entitled.

                  (d) Notice to Insurers. If, at the time of the receipt by the
Company of a notice of a Claim pursuant to Section 4(b) hereof, the Company has
liability insurance in effect which may cover such Claim, the Company shall give
prompt notice of the commencement of such Claim to the insurers in accordance
with the procedures set forth in the respective policies. The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay,
on behalf of the Indemnitee, all amounts payable as a result of such Claim in
accordance with the terms of such policies.

                  (e) Selection of Counsel. In the event the Company shall be
obligated hereunder to provide indemnification for or make any Expense Advances
with respect to the Expenses of any Claim, the Company, if appropriate, shall be
entitled to assume the defense of such Claim with counsel approved by Indemnitee
(which approval shall not be unreasonably withheld) upon the


                                       -6-

<PAGE>   7
delivery to Indemnitee of written notice of the Company's election to do so.
After delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to
Indemnitee under this Agreement for any fees or expenses of separate counsel
subsequently retained by or on behalf of Indemnitee with respect to the same
Claim; provided that, (i) Indemnitee shall have the right to employ Indemnitee's
separate counsel in any such Claim at Indemnitee's expense and (ii) if (A) the
employment of separate counsel by Indemnitee has been previously authorized by
the Company, (B) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Company and Indemnitee in the conduct of any
such defense, or (C) the Company shall not continue to retain such counsel to
defend such Claim, then the fees and expenses of Indemnitee's separate counsel
shall be Expenses for which Indemnitee may receive indemnification or Expense
Advances hereunder.

         5. Additional Indemnification Rights; Nonexclusivity.

                  (a) Scope. The Company hereby agrees to indemnify the
Indemnitee to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the other provisions of this
Agreement, the Company's Certificate of Incorporation, the Company's Bylaws or
by statute. In the event of any change after the date of this Agreement in any
applicable law, statute or rule which expands the right of a Delaware
corporation to indemnify a member of its board of directors or an officer,
employee, agent or fiduciary, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits afforded by such
change. In the event of any change in any applicable law, statute or rule which
narrows the right of a Delaware corporation to indemnify a member of its board
of directors or an officer, employee, agent or fiduciary, such change, to the
extent not otherwise required by such law, statute or rule to be applied to this
Agreement, shall have no effect on this Agreement or the parties' rights and
obligations hereunder except as set forth in Section 10(a) hereof.

                  (b) Nonexclusivity. The indemnification and the payment of
Expense Advances provided by this Agreement shall be in addition to any rights
to which Indemnitee may be entitled under the Company's Certificate of
Incorporation, its Bylaws, any other agreement, any vote of stockholders or
disinterested directors, the General Corporation Law of the State of Delaware,
or otherwise. The indemnification and the payment of Expense Advances provided
under this Agreement shall continue as to Indemnitee for any action taken or not
taken while serving in an indemnified capacity even though subsequent thereto
Indemnitee may have ceased to serve in such capacity.

         6. No Duplication of Payments. The Company shall not be liable under
this Agreement to make any payment in connection with any Claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, provision of the Company's Certificate of
Incorporation, Bylaws or otherwise) of the amounts otherwise payable hereunder.

         7. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of Expenses incurred in


                                       -7-

<PAGE>   8
connection with any Claim, but not, however, for all of the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion of
such Expenses to which Indemnitee is entitled.

         8. Mutual Acknowledgment. Both the Company and Indemnitee acknowledge
that in certain instances, federal law or applicable public policy may prohibit
the Company from indemnifying its directors, officers, employees, agents or
fiduciaries under this Agreement or otherwise. Indemnitee understands and
acknowledges that the Company has undertaken or may be required in the future to
undertake with the Securities and Exchange Commission to submit the question of
indemnification to a court in certain circumstances for a determination of the
Company's right under public policy to indemnify Indemnitee.

         9. Liability Insurance. To the extent the Company maintains liability
insurance applicable to directors, officers, employees, agents or fiduciaries,
Indemnitee shall be covered by such policies in such a manner as to provide
Indemnitee the same rights and benefits as are provided to the most favorably
insured of the Company's directors, if Indemnitee is a director; or of the
Company's officers, if Indemnitee is not a director of the Company but is an
officer; or of the Company's key employees, agents or fiduciaries, if Indemnitee
is not an officer or director but is a key employee, agent or fiduciary.

         10. Exceptions. Notwithstanding any other provision of this Agreement,
the Company shall not be obligated pursuant to the terms of this Agreement:

                  (a) Excluded Action or Omissions. To indemnify or make Expense
Advances to Indemnitee with respect to Claims arising out of acts, omissions or
transactions for which Indemnitee is prohibited from receiving indemnification
under applicable law.

                  (b) Claims Initiated by Indemnitee. To indemnify or make
Expense Advances to Indemnitee with respect to Claims initiated or brought
voluntarily by Indemnitee and not by way of defense, counterclaim or crossclaim,
except (i) with respect to actions or proceedings brought to establish or
enforce a right to indemnification under this Agreement or any other agreement
or insurance policy or under the Company's Certificate of Incorporation or
Bylaws now or hereafter in effect relating to Claims for Covered Events, (ii) in
specific cases if the Board of Directors has approved the initiation or bringing
of such Claim, or (iii) as otherwise required under Section 145 of the Delaware
General Corporation Law, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, Expense Advances, or
insurance recovery, as the case may be.

                  (c) Lack of Good Faith. To indemnify Indemnitee for any
Expenses incurred by the Indemnitee with respect to any action instituted (i) by
Indemnitee to enforce or interpret this Agreement, if a court having
jurisdiction over such action determines as provided in Section 13 that each of
the material assertions made by the Indemnitee as a basis for such action was
not made in good faith or was frivolous, or (ii) by or in the name of the
Company to enforce or interpret this Agreement, if a court having jurisdiction
over such action determines as provided in Section 13 that each of the material
defenses asserted by Indemnitee in such action was made in bad faith or was


                                       -8-

<PAGE>   9
frivolous.

                  (d) Claims Under Section 16(b). To indemnify Indemnitee for
Expenses and the payment of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or any similar successor statute.

         11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.

         12. Binding Effect; Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors, assigns (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), spouses, heirs and
personal and legal representatives. The Company shall require and cause any
successor (whether direct or indirect, and whether by purchase, merger,
consolidation or otherwise) to all, substantially all, or a substantial part, of
the business or assets of the Company, by written agreement in form and
substance satisfactory to Indemnitee, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place. This Agreement
shall continue in effect regardless of whether Indemnitee continues to serve as
a director, officer, employee, agent or fiduciary (as applicable) of the Company
or of any other enterprise at the Company's request.

         13. Expenses Incurred in Action Relating to Enforcement or
Interpretation. In the event that any action is instituted by Indemnitee under
this Agreement or under any liability insurance policies maintained by the
Company to enforce or interpret any of the terms hereof or thereof, Indemnitee
shall be entitled to be indemnified for all Expenses incurred by Indemnitee with
respect to such action (including without limitation attorneys' fees),
regardless of whether Indemnitee is ultimately successful in such action,
unless as a part of such action a court having jurisdiction over such action
makes a final judicial determination (as to which all rights of appeal therefrom
have been exhausted or lapsed) that each of the material assertions made by
Indemnitee as a basis for such action was not made in good faith or was
frivolous; provided, however, that until such final judicial determination is
made, Indemnitee shall be entitled under Section 3 to receive payment of Expense
Advances hereunder with respect to such action. In the event of an action
instituted by or in the name of the Company under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be entitled to be
indemnified for all Expenses incurred by Indemnitee in defense of such action
(including without limitation costs and expenses incurred with respect to
Indemnitee's counterclaims and cross-claims made in such action), unless as a
part of such action a court having jurisdiction over such action makes a final
judicial determination (as to which all rights of appeal therefrom have been
exhausted or lapsed) that each of the material defenses asserted by Indemnitee
in such action was made in bad faith or was frivolous; provided, however, that
until such final judicial determination is made, Indemnitee shall be entitled
under Section 3 to receive payment of Expense Advances hereunder with respect to
such action.



                                      -9-

<PAGE>   10
         14. Period of Limitations. No legal action shall be brought and no
cause of action shall be asserted by or in the right of the Company against
Indemnitee, Indemnitee's estate, spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action, and any claim or cause of action of the Company shall be
extinguished and deemed released unless asserted by the timely filing of a legal
action within such two year period; provided, however, that if any shorter
period of limitations is otherwise applicable to any such cause of action, such
shorter period shall govern.

         15. Notice. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and signed for by the party addressed, on the date of such
delivery, or (ii) if mailed by domestic certified or registered mail with
postage prepaid, on the third business day after the date postmarked. Addresses
for notice to either party are as shown on the signature page of this Agreement,
or as subsequently modified by written notice.

         16. Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be commenced, prosecuted and continued only in the Court of
Chancery of the State of Delaware in and for New Castle County, which shall be
the exclusive and only proper forum for adjudicating such a claim.

         17. Severability. The provisions of this Agreement shall be severable
in the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
Furthermore, to the fullest extent possible, the provisions of this Agreement
(including without limitation each portion of this Agreement containing any
provision held to be invalid, void or otherwise unenforceable, that is not
itself invalid, void or unenforceable) shall be construed so as to give effect
to the intent manifested by the provision held invalid, illegal or
unenforceable.

         18. Choice of Law. This Agreement, and all rights, remedies,
liabilities, powers and duties of the parties to this Agreement, shall be
governed by and construed in accordance with the laws of the State of Delaware
as applied to contracts between Delaware residents entered into and to be
performed entirely in the State of Delaware without regard to principles of
conflicts of laws.

         19. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all documents required and shall do
all acts that may be necessary to secure such rights and to enable the Company
effectively to bring suit to enforce such rights.

         20. Amendment and Termination. No amendment, modification, termination
or cancellation of this Agreement shall be effective unless it is in writing
signed by both the parties


                                      -10-

<PAGE>   11
hereto. No waiver of any of the provisions of this Agreement shall be deemed to
be or shall constitute a waiver of any other provisions hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver.

         21. Integration and Entire Agreement. This Agreement sets forth the
entire understanding between the parties hereto and supersedes and merges all
previous written and oral negotiations, commitments, understandings and
agreements relating to the subject matter hereof between the parties hereto.

         22. No Construction as Employment Agreement. Nothing contained in this
Agreement shall be construed as giving Indemnitee any right to be retained in
the employ of the Company or any of its subsidiaries or affiliated entities.

         IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the date first above written.


VIVUS, Inc.


By:         _______________________________

Print Name: _______________________________

Title:      _______________________________

Address:    545 Middlefield Road
            Menlo Park, CA 94025


                                            AGREED TO AND ACCEPTED

                                            INDEMNITEE:



                                            _______________________________
                                            Indemnitee
                                            Address


                                      -11-