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)

November 8, 2016

 

 

VIVUS, INC.

(Exact name of registrant as specified in its charter)

 

Delaware

 

001-33389

 

94-3136179

(State or other jurisdiction of
incorporation)

 

(Commission File Number)

 

(IRS Employer
Identification No.)

 

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 2.02.  Results of Operations and Financial Condition

 

On November 9, 2016, VIVUS, Inc., or the Company, conducted a conference call during which members of its senior management team discussed financial results for the third quarter ended September 30, 2016, a business update and certain other information.  A copy of the transcript of the conference call is furnished herewith as Exhibit 99.1.

 

The information in Item 2.02 of this Form 8-K and the exhibit attached hereto shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that Section, or incorporated by reference into any of the Company’s filings under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in any such filing.

 

Item 5.07.  Submission of Matters to a Vote of Security Holders

 

On November 8, 2016, the Company held its 2016 Annual Meeting of Stockholders, or the Annual Meeting.  At the Annual Meeting, the Company’s stockholders elected seven (7) directors to serve until the next annual meeting of stockholders or until their successors are duly elected and qualified; approved, on a non-binding advisory basis, the compensation of the Company’s named executive officers; ratified the Company’s appointment of OUM & Co. LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2016; and approved the amended and restated 2010 Equity Incentive Plan to increase the number of authorized shares reserved for issuance thereunder by 5,000,000, to provide greater flexibility to satisfy tax withholding obligations and to approve its material terms for purposes of complying with Section 162(m) of the Internal Revenue Code of 1986, as amended. As previously disclosed, in accordance with the results of the say-on-pay frequency vote held at our 2011 Annual Meeting of Stockholders, we currently hold say-on-pay votes on an annual basis and, unless the Company’s Board of Directors modifies its determination on the frequency of future advisory say-on-pay votes, the next advisory say-on-pay vote and the next say-on-pay frequency vote will be held at our 2017 Annual Meeting of Stockholders.

 

The Company’s independent inspector of elections reported the voting results as follows:

 

(i)  Election of seven (7) directors to serve until the next annual meeting of stockholders or until their successors are duly elected and qualified:

 

Name

 

For

 

Withheld

 

Broker Non-
Votes

 

Seth H. Z. Fischer

 

28,087,338

 

7,908,926

 

41,661,719

 

David Y. Norton

 

28,065,162

 

7,913,102

 

41,661,719

 

Jorge Plutzky, M.D.

 

21,131,624

 

14,864,640  

 

41,661,719

 

Eric W. Roberts

 

28,161,767

 

7,834,497

 

41,661,719

 

Herman Rosenman

 

27,251,216

 

8,745,048

 

41,661,719

 

Allan L. Shaw

 

28,180,367

 

7,815,897

 

41,661,719

 

Mayuran Sriskandarajah

 

28,108,791

 

7,887,473

 

41,661,719

 

 

(ii)  Approval, on a non-binding advisory basis, of the compensation of the Company’s named executive officers:

 

For

 

Against

 

Abstain

 

Broker Non-Votes

 

22,730,880

 

12,819,759

 

445,625

 

41,661,719

 

 

(iii)  Ratification of the appointment of OUM & Co. LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2016:

 

For

 

Against

 

Abstain

 

Broker Non-Votes

 

68,786,053

 

6,475,410

 

2,396,520

 

0

 

 

2


 

(iv)  Approval of the amended and restated 2010 Equity Incentive Plan to increase the number of authorized shares reserved for issuance thereunder by 5,000,000, to provide greater flexibility to satisfy tax withholding obligations and to approve its material terms for purposes of complying with Section 162(m) of the Internal Revenue Code of 1986, as amended:

 

For

 

Against

 

Abstain

 

Broker Non-Votes

 

27,742,373

 

8,009,849

 

244,042

 

41,661,719

 

 

Item 9.01.  Financial Statements and Exhibits

 

(d)  Exhibits.

 

Exhibit No.

 

Description

 

 

 

99.1

 

Transcript of VIVUS, Inc. Third Quarter Ended September 30, 2016 Earnings Conference Call on November 9, 2016, at 1:30 p.m. PT.

 

3


 

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.

 

 

VIVUS, INC.

 

 

 

 

 

/s/ John L. Slebir

 

John L. Slebir

 

Senior Vice President, Business Development and General Counsel

 

Date:  November 14, 2016

 

4


 

EXHIBIT INDEX

 

Exhibit No.

 

Description

 

 

 

99.1

 

Transcript of VIVUS, Inc. Third Quarter Ended September 30, 2016 Earnings Conference Call on November 9, 2016, at 1:30 p.m. PT.

 

5

 

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