UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
July 18, 2013
VIVUS, INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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001-33389 |
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94-3136179 |
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(State or other jurisdiction of
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(Commission File Number) |
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(IRS Employer
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351 EAST EVELYN AVENUE
MOUNTAIN VIEW, CA 94041
(Address of principal executive offices, including zip code)
(650) 934-5200
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
On July 18, 2013, VIVUS, Inc. (the “Company”), First Manhattan Co. (“First Manhattan”) and Peter Y. Tam entered into a letter agreement (the “Letter Agreement”) in connection with the Amended and Restated Change of Control and Severance Agreement by and between the Company and Mr. Tam, effective as of July 1, 2013 (the “Severance Agreement”). In connection with the change in the majority of the Board and a material reduction or change in job duties and responsibilities, the Company and First Manhattan acknowledged and agreed (pursuant to the Settlement Agreement described below) that Mr. Tam would be entitled to terminate his employment for Good Reason (as defined in the Severance Agreement). Under the terms of the Letter Agreement, if Mr. Tam terminates his employment on or before January 18, 2014, such termination will be deemed to be a termination for Good Reason and Mr. Tam will be entitled to severance payments and benefits pursuant to the terms of the Severance Agreement. Between January 18, 2014 and July 18, 2015, Mr. Tam will be entitled to severance payments and benefits if he terminates his employment for Good Reason based on a material reduction or change in his then current job duties and responsibilities as of January 18, 2014 or if he terminates his employment for any other reason that constitutes Good Reason under the terms of the Severance Agreement.
A copy of the Letter Agreement is filed with this Form 8-K and attached hereto as Exhibit 10.1. The foregoing description of the Letter Agreement is qualified in its entirety by reference to the full text of the Letter Agreement, which is incorporated by reference hereto.
Pursuant to the terms of the Settlement Agreement by and between the Company and First Manhattan as filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K with the Securities and Exchange Commission on July 19, 2013 (the “Settlement Agreement”), the following resignations and appointments occurred:
Each of Charles J. Casamento, Ernest Mario, Ph.D., Linda M. Dairiki Shortliffe, M.D., Peter Y. Tam and Leland Wilson resigned as members of the board of directors of the Company (the “Board”), with such resignations effective as of 9:00 a.m. on July 19, 2013. Such resignations were also effective with respect to (i) in the case of Mr. Casamento, his position on the Company’s Audit Committee, Compensation Committee and Nominating and Governance Committee, (ii) in the case of Dr. Mario, his position on the Company’s Audit Committee and Compensation Committee and (iii) in the case of Dr. Shortliffe, her position on the Company’s Compensation Committee and Nominating and Governance Committee.
In connection with the Settlement Agreement, the Company appointed Michael James Astrue, Samuel F. Colin, M.D., Alexander J. Denner, Ph.D., Johannes J.P. Kastelein, David York Norton and Herman Rosenman as members of the Board effective as of 9:00 a.m. on July 19, 2013. The Board has not yet determined on which committees the new directors will serve.
None of the directors has any direct or indirect material interest in any transaction required to be disclosed under Item 404(a) of Regulation S-K.
In addition, Mr. Wilson tendered his resignation from his position as Chief Executive Officer effective as of 9:00 a.m. on July 19, 2013.
On July 22, 2013, pursuant to the Settlement Agreement, the Board appointed Anthony P. Zook, age 52, to serve as the Chief Executive Officer of the Company. From January 2010 to February 2013, Mr. Zook served as Executive Vice President for Global Commercial Operations at AstraZeneca plc, a public biopharmaceutical company. From January 2006 to January 2013, Mr. Zook served as the President and Chief Executive Officer of AstraZeneca plc’s North American division. From June 2007 to January 2010, Mr. Zook served as Executive Vice President of Global Marketing of AstraZeneca plc. From November 2008 to February 2010, he also served as the President of MedImmune Inc., the wholly-owned biologics subsidiary of AstraZeneca plc, where he also served as its Interim Chief Executive Officer and Interim Head. Since May 2013, he has served as a member of the board of directors of AltheRx, Inc., a private pharmaceutical company. From September 2009 to January 2010, he served as a member of the board of directors of of Rib-X Pharmaceuticals, Inc., a private pharmaceutical company. He also currently serves as a member of the board for the Pennsylvania Division of the American Cancer Society, a member of the executive council for the National Pharmaceutical Council, a member of the board of trustees for the Healthcare Leadership Council, a member
of the board of Frostburg University and an executive director of Bringing Hope Home. Mr. Zook holds a B.S. degree in Biology from Frostburg University and an A.A. degree in Chemical Engineering from Penn State University.
There are no family relationships between Mr. Zook and any director or executive officer of the Company, and he has no direct or indirect material interest in any transaction required to be disclosed under Item 404(a) of Regulation S-K.
The Board intends to review and approve the compensation arrangements for Mr. Zook and the newly appointed members of the Board in an upcoming meeting of the Board or the Compensation Committee of the Board.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
(a) On July 18, 2013, the Board amended the Company’s Amended and Restated Bylaws to (i) increase the authorized number of directors from nine to eleven, effective as of July 18, 2013 and (ii) to authorize the Board to authorize the chairman of a meeting of the stockholders to adjourn the meeting, whether or not a quorum is present. If a quorum is initially present, the stockholders may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
A copy of Amendment No. 4 to the Amended and Restated Bylaws is filed with this Form 8-K and attached hereto as Exhibit 3.1 and incorporated by reference into this Item 5.03.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
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Exhibit No. |
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Description |
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3.1 |
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Amendment No. 4 to the Amended and Restated Bylaws of VIVUS, Inc., as amended on July 18, 2013. |
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10.1 |
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Letter Agreement, dated as of July 18, 2013, by and among VIVUS, Inc., First Manhattan Co. and Peter Y. Tam. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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VIVUS, INC. |
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By: |
/s/ John L. Slebir |
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John L. Slebir, Esq. |
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Vice President, Business Development and General Counsel |
Date: July 24, 2013
Exhibit 3.1
AMENDMENT NO. 4
TO THE AMENDED AND RESTATED BYLAWS OF
VIVUS, INC.
July 18, 2013
The Amended and Restated Bylaws of VIVUS, Inc., a Delaware corporation (the “Company”), initially adopted by the Board of Directors of the Company on May 16, 1996 and as amended and restated on April 18, 2012 (the “Bylaws”), are hereby amended by this Amendment No. 4 (this “Amendment”) pursuant to Article IX thereof as set forth below.
1. Amendment . Article II, Section 2.7 of the Bylaws is hereby amended by deleting such Article II, Section 2.7 in its entirety and replacing such Section with the following new Article II, Section 2.7:
“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 applicable law, the certificate of incorporation or these bylaws. 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 holders of a majority of the voting power of the shares entitled to vote, who are present in person or represented by proxy, shall have power to adjourn the meeting. The Board of Directors shall also have the power to authorize the chairman of the meeting to adjourn the meeting, whether or not a quorum is present. 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.
Except as otherwise provided by the certificate of incorporation, directors shall be elected by a plurality of the votes cast by stockholders present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Except as otherwise provided by applicable law, the certificate of incorporation or these bylaws, every matter other than the election of directors shall be decided by the affirmative vote of a majority of the votes cast by stockholders present in person or represented by proxy at the meeting and entitled to vote on such matter.”
2. Amendment . Article III, Section 3.2 of the Bylaws is hereby amended by deleting such Article III, Section 3.2 in its entirety and replacing such Section with the following new Article III, Section 3.2.
“The board of directors shall be set at eleven (11) members until changed 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. Miscellaneous . Except as modified by this Amendment, the Bylaws shall remain in full force and effect.
Exhibit 10.1
July 18, 2013
Peter Y. Tam
c/o VIVUS, Inc.
1172 Castro Street
Mountain View, CA 94040
Dear Peter
Reference is made to the Amended and Restated Change of Control and Severance Agreement between you and VIVUS, Inc, (the “Company”), effective as of July 1, 2013 (the “AR Severance Agreement”). Capitalized terms in this letter agreement that are not otherwise defined herein shall have the same meanings as in the AR Severance Agreement.
In connection with the change in the majority of the Board of Directors of Company (the “Board”) and the material reduction or change in your job duties and responsibilities, the Company and First Manhattan Co. (“First Manhattan”) acknowledge and agree that (x) a Change of Control will occur under the AR Severance Agreement and (y) you will be entitled to terminate your employment for Good Reason under the terms of the AR Severance Agreement. As a result of the foregoing, if you agree to continue your employment following election of the new Board, the Company agrees that you shall be entitled to terminate your employment at any time during the six (6) month period following the date hereof and such termination shall be deemed to be a termination for Good Reason pursuant to Section 2(a)(ii) of the AR Severance Agreement and you shall, subject to Sections 4 and 7 of the AR Severance Agreement, continue to be entitled to the severance payment and benefits set forth in Section 2(a)(ii) of the AR Severance Agreement. If you do not terminate your employment during such six (6) month period, you and the Company acknowledge and agree that you shall no longer be entitled to terminate your employment for Good Reason as a result of such material reduction or change; provided, however, that at any time following the six (6) month period until the end of the twenty-four (24) month period following the Change of Control you shall be entitled to benefits under Section 2(a)(ii) if you terminate your employment for Good Reason based on a material reduction or change in your then current job duties and responsibilities as of the end of the six (6) month period, pursuant to the terms and conditions of the AR Severance Agreement.
If you agree with foregoing, please execute this letter agreement below. If you have any questions, please do not hesitate to contact me.
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Very truly yours, |
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VIVUS, INC. |
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By: |
/s/ Leland Wilson |
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Name: |
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Title: |
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FIRST MANHATTAN CO. |
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By: |
/s/ Neal K. Sterns |
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Name: |
Neal K. Sterns |
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Title: |
Managing Member |
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ACCEPTED AND AGREED: |
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/s/ Peter Y. Tam |
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