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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1996
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OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
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Commission File Number: 0-23490
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VIVUS, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 94-3136179
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification Number)
545 MIDDLEFIELD ROAD, SUITE 200 MENLO PARK, CA 94025
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(Address of Principal Executive Offices) (Zip Code)
(415) 325-5511
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(Registrant's Telephone Number, Including Area Code
N/A
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(Former name, former address and former fiscal year, if changed since last
report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. [ X ] Yes [ ] No
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
At August 8, 1996, 16,162,434 shares of common stock were outstanding.
Exhibit index on page 28
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PART II: OTHER INFORMATION
Item 1. Legal Proceedings
A former consultant to the Company has claimed that he is the inventor
of certain technology disclosed in two of the Company's patents. The former
consultant further claims that the Company defrauded him by allegedly failing to
inform him that it intended to use and patent this technology and by failing to
compensate him for the technology in the manner allegedly promised. On May 28,
1996, the Company filed a complaint for declaratory judgment against the former
consultant in the United States District Court for the Northern District of
California, which seeks a declaration from the court that the former consultant
is not an inventor of any of the technology disclosed in the patent. On July 17,
1996, the former consultant filed a lawsuit which seeks to have two of the
Company's patents declared invalid on the grounds that they fail to list him as
an inventor. In a separate matter, on April 10, 1996, the licensors in an
agreement by which the Company acquired a patent license filed a lawsuit in a
Texas State court that alleges that they were defrauded in connection with the
renegotiation of the license agreement between the Company and the licensors. On
May 8, 1996, the action was removed to the United States District Court for the
Western District of Texas. In addition to monetary damages, the licensors seek
to return to the terms of the original license agreement. The Company has
conducted a review of the circumstances surrounding these two matters and
believes that the allegations are without merit. Although the Company believes
that it should prevail, the uncertainties inherent in litigation prevent the
Company from giving any assurances about the outcome of such litigation.
Item 4. Submission of Matters to a Vote of Security Holders.
The annual meeting of stockholders was held on May 16, 1996. Matters voted on at
that meeting were: (i) a proposal to amend the bylaws to provide for a variable
number of directors from five (5) to seven (7), with the number initially set at
six (6); (ii) the election of the Company's directors; (iii) a proposal to
approve the reincorporation of VIVUS, Inc. from California to Delaware, and (iv)
a proposal to confirm the appointment of Arthur Andersen LLP as the independent
public accountants of the Company for fiscal year 1996. Tabulation for each
proposal and individual director were as follows:
Proposal I To amend the bylaws to provide for a variable number of
directors from five (5) to seven (7), with the number to be
initially set at six (6).
FOR AGAINST ABSTAIN NON-VOTE
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11,037,691 142,959 8,448 153,163
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Proposal II To elect six directors to serve until the next Annual Meeting
of Stockholders and until their successors are duly elected and
qualified
NOMINEE FOR WITHHELD
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Richard L. Casey 11,296,383 45,878
Samuel D. Colella 11,296,833 45,428
Brian H. Dovey 11,296,433 45,828
Peter Barton Hutt 11,288,383 53,878
Virgil A. Place, M.D. 11,296,333 45,928
Leland F. Wilson 11,296,433 45,828
Proposal III To approve the reincorporation of VIVUS, Inc. from California
to Delaware.
FOR AGAINST ABSTAIN NON-VOTE
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8,342,424 409,544 27,843 2,562,450
Proposal IV To confirm the appointment of Arthur Andersen LLP
as the independent public accountants of the Company
for fiscal year 1996.
FOR AGAINST ABSTAIN NON-VOTE
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11,323,502 11,487 7,272 0
Item 6. Exhibits and Reports on Form 8-K
(a)Exhibits (in accordance with Item 601 of Regulation S-K)
3.1 Certificate of Incorporation of the Registrant.
3.2 Bylaws of the Registrant.
*+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
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*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
*10.10 Lease by and between McCandless-Triad and the Registrant
dated November 23, 1992, as amended
***10.11 Form of Indemnification Agreements 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
+ 10.23 Distribution and Services Agreement between the Registrant
and Alternate Site Distributors, Inc. dated July 17, 1996
*****+10.24 Distribution Agreement made as of May 29, 1996 between the
Registrant and Astra AB
******11.1 Computation of net loss per share
******27.1 Financial Data Schedule
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* 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 Form 8-B filed with the Commission on June 24, 1996
**** Incorporated by reference to the same-numbered exhibit filed with the
Registrant's Quarterly Report on Form 10Q 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.
****** Incorporated by reference to the same numbered exhibits filed
with the Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1996.
+ Confidential treatment granted.
(b) Reports on Form 8-K
The following reports on Form 8-K have been filed during the quarter
for which this report is filed:
(i) On May 31, 1996, the Company filed a Current Report on Form 8-K
("Form 8-K") to report that on May 29, 1996, VIVUS International Limited, a
wholly owned subsidiary of the Company, entered into a distribution agreement
(the "Distribution Agreement") with Astra AB. Simultaneously with the filing of
Form 8-K, the Company requested confidential treatment for the Distribution
Agreement.
(ii) On June 21, 1996, the Company filed Amendment No. 1 to Form
8-K/A solely for the purpose of filing a revised version of the Distribution
Agreement, which omitted only those portions for which confidential treatment
had been granted.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
VIVUS, Inc.
Date: November 19, 1996 /s/ DAVID C. YNTEMA
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David C. Yntema
Chief Financial
Officer
/s/ LELAND F. WILSON
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Leland F. Wilson
President and Chief
Executive Officer
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VIVUS, INC.
INDEX TO EXHIBITS
Exhibit Description
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3.1 Certificate of Incorporation of the Registrant.
3.2 Bylaws of the Registrant.
10.23 Distribution and Services Agreement between the
Registrant and Alternate Site Distributors, Inc.
dated July 17, 1996
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