Case4:10-cv-04957-PJH Documentl 1 Fileddl /03/11 Pagel of 4 1 MILBERG LLP JEFF S. WESTERMAN (SBN 94559) 2 [email protected] NICOLE M. DUCKETT (SBN 198168) 3 [email protected] One California Plaza 4 300 South Grand Avenue, Suite 3900 Los Angeles, California 90071 5 Telephone: (213) 617-1200 6 Facsimile: (213) 617-1975 Counsel for John Ingram and 7 [Proposed] Liaison Counsel for the Class 8 BROWER PIVEN 9 A Professional Corporation DAVID A.P. BROWER 10 [email protected] 488 Madison Avenue 11 Eighth Floor New York, New York 10022 12 Telephone: (212) 501-9000 Facsimile: (212) 501-0300 13 Counsel for John Ingram and 14 [Proposed] Lead Counsel for the Class 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 MERLE KOVTUN, individually and on behalf) No. 4:10-cv-04957-PJH of all others similarly situated, 18 ) CLASS ACTION Plaintiff, 19 ) DECLARATION OF JEFF S. WESTERMAN vs. ) IN SUPPORT OF JOHN INGRAM'S 20 ) MOTION FOR APPOINTMENT OF LEAD VIVUS, INC., LELAND F. WILSON, and ) PLAINTIFF AND APPROVAL OF 21 WESLEY W. DAY PH.D., ) SELECTION OF COUNSEL 22 Defendants. ) DATE: February 9, 2011 ) TIME: 9:00 a.m. 23 ) CTRM: 3 ) JUDGE: Hon. Phyllis J. Hamilton 24 25 26 27 28 Declaration of Jeff S. Westerman In Support of John Ingram's Motion for Appointment of Lead Plaintiff and Approval of Selection of Counsel — Case No. 4:10-cv-04957-PJH Case4:10-cv-04957-PJH Document11 Filed01 /03/11 Page2 of 4 1 I, JEFF S. WESTERMAN, declare as follows: 2 I am over 18 years of age and am competent to testify to the matters and facts hereinafter 3 set forth. I am a partner with the law firm Milberg LLP, counsel for John Ingram and proposed 4 liaison counsel for the Class in the Action. I make this declaration in support of John Ingam's 5 Motion for Appointment of Lead Plaintiff and Approval of Selection of Counsel. I have personal 6 knowledge of the matters stated herein and, if called upon, I could and would competently testify 7 thereto. 8 Attached are true and correct copies of the following exhibits: 9 Exhibit A: Sworn Plaintiff's Certification of John Ingram; 10 Exhibit B: Schedule of Transactions and Losses based on information provided by John Ingram reflecting Class Period losses incurred by John Ingram as a 11 result of his investment in Vivus, Inc. securities; 12 Exhibit C: Notice of pendency of class action published on Market Wire, a national business-oriented wire service, on November 3, 2010; 13 Exhibit D: Brower Piven, A Professional Corporation, firm résumé; and 14 Exhibit E: Milberg LLP firm résumé. 15 16 I declare under penalty of perjury under the laws of the United States of America that the 17 foregoing is true and correct. Executed this 3rd day of January 2011, at Los Angeles, California. 18 /s/ Jeff S. Westerman 19 JEFF S. WESTERMAN 20 21 22 23 24 25 26 27 28 Declaration of Jeff S. Westerman In Support of John Ingram's Motion for Appointment of Lead laintiff and Approval of Selection of Counsel — Case No. 4:10-cv-04957-PJH - 1 - Case4:10-cv-04957-PJH Document11 Filed01/03/11 Page3 of 4 1 DECLARATION OF SERVICE BY CM/ECF AND/OR MAIL 2 I, the undersigned, declare: 3 1. That declarant is and was, at all times herein mentioned, employed in the County 4 of Los Angeles, over the age of 18 years, and not a party to or interest in the within action; that 5 declarant's business address is One California Plaza, 300 South Grand Avenue, Suite 3900, Los 6 Angeles, California 90071-3149. 7 2. Declarant hereby certifies that on January 3, 2011, declarant served the 8 DECLARATION OF JEFF S. WESTERMAN IN SUPPORT OF JOHN INGRAM'S MOTION 9 FOR APPOINTMENT OF LEAD PLAINTIFF AND APPROVAL OF SELECTION OF 10 COUNSEL by electronically filing the foregoing document listed above by using the Case 11 Management/ Electronic Case filing system. 12 3. Declarant further certifies: 13 n All participants in the case are registered CM/ECF users and that service will be 14 accomplished by the court's CM/ECF system 15 Z Participants in the case who are registered CM/ECF users will be served by the 16 court's CM/ECF system. Participants in the case that are not registered CM/ECF users will be 17 served by First-Class Mail, postage pre-paid or have dispatched to a third-party commercial 18 carrier for delivery to the non-CM/ECF participants as addressed and listed below: 19 Michael L. Charlson Howard S. Caro 20 Norman J. Blears HOGAN LOVELLS US LLP 21 HOGAN LOVELLS US LLP 4 Embarcadero Center 22nd Floor 525 University Avenue 4th Floor San Francisco, California 94111 22 Palo Alto, California 94301 P: 415.374.2300 P: 650.463.4000 F: 415.374.2499 23 F: 650.463.4199 [email protected] [email protected] 24 [email protected] 25 4. That there is a regular communication by mail between the place of mailing and 26 the places so addressed. 27 5. That on the above date, declarant served via e-mail to: [email protected]. 28 Declaration of Jeff S. Westerman In Support of John Ingram's Motion for Appointment of Lead laintiff and Approval of Selection of Counsel— No. 4:10-cv-04957-PJH Case4:10-cv-04957-PJH Document11 Filed01/03/11 Page4 of 4 1 I declare under penalty of perjury that the foregoing is true and correct. Executed this 3rd 2 day of January, 2011, at Los Angeles, California. 3 \ ' 4 • CECILLE CHA INS 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Declaration of Jeff S. Westerman In Support of John Ingram's Motion for Appointment of Lead laintiff and Approval of Selection of Counsel— No. 4:10-cv-04957-PJH Case4:10-cv-04957-PJH Documentl 1-1 Filed01/03/11 Pagel of 3 EXHIBIT A Case4:10-cv-04957-PJH Document11-1 Filed01/03/11 Page2 of 3 PLAINTIFF'S CERTIFICATION o /IA/ L.,,,,,477 ("Plaintiff') declares that: 1. I have reviewed the first filed complaint in the VIVUS Inc, Securities Litigation and adopt, and would authorize the filing of, that complaint, 2. Plaintiff did not purchase the security that is the subject of this action at the direction of plaintiff's counsel or in order to participate in this private action. 3. Plaintiff is willing to serve as a representative party on behalf of the class, including providing testimony at deposition and trial, if necessary, arid Plaintiff is willing to serve as a lead plaintiff either individually or as part of a group, a lead plaintiff being a representative party who acts on behalf of other class members in directing the action. 4. Plaintiff's transactions in VIVUS Inc. securities during the Class Period are attached hereto. 5. During the three years prior to the date of this Certification, Plaintiff has not sought to serve or served as a representative party for a class under the federal securities laws. 6. Plaintiff will not accept any payment for serving as a representative party on behalf of the class beyond the Plaintiff's pro rata share of any recovery, except such reasonable costs and expenses (including lost wages) directly relating to the representation of the class as ordered or approved by the court. Plaintiff understands that this is not a claim form, and that Plaintiff's ability to share in any recovery as a member of the class is unaffected by Plaintiff's decision to serve as a representative party. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this '30 day • 0 ye ta EC 2010. S': ature Brower Vivi , A Professional Corporation 1925 Old Valley Road Stevenson, Maryland 21153 Telephone: 410-332-0030 Facsimile: 410-685-1300 www.browerpivericorn Case4:10-cv-04957-PJH Documentl 1-1 Filed01/03/11 Page3 of 3 John Ingram Vivus Inc. Securities Litigation SCHEDULE OF TRANSACTIONS Date Security Transaction Type Shares/Contract Price per share/contract 5/7/2010 Common Stock BUY 6,970 $10.60 5/7/2010 Common Stock BUY 43,030 $10.70 5/21/2010 Common Stock BUY 50,000 $11.05 5/24/2010 Common Stock SELL 10,000 $12.05 5/24/2010 Common Stock SELL 4,275 $11.95 5/27/2010 Common Stock SELL 2,000 $11.95 June $11 Call 5/28/2010 Option SELL 55 $215 6/11/2010 Common Stock SELL 8,300 $12.10 6/11/2010 Common Stock SELL 1,085 $12.05 6/16/2010 Common Stock SELL 17,000 $10.95 Case4:10-cv-04957-PJH Documentl 1-2 Filed01/03/11 Pagel of 2 EXHIBIT B Case4:10-cv-04957-PJH Documentl 1-2 Filed01/03/11 Page2 of 2 Vivus Inc. Securities Litigation SCHEDULE OF TRANSACTIONS AND LOSSES John Ingram Date Security Transaction Shares/Contracts Price per (Cost)/Proceeds Type share/contract 5/7/2010 Common Stock BUY 6,970 $10.60 ($73,882.00) 5/7/2010 Common Stock BUY 43,030 $10.70 ($460,421.00) 5/21/2010 Common Stock BUY 50,000 $11.05 ($552,500.00) 5/24/2010 Common Stock SELL 10,000 $12.05 $120,500.00 5/24/2010 Common Stock SELL 4,275 $11.95 $51,086.25 5/27/2010 Common Stock SELL 2,000 $11.95 $23,900.00 June $11 Call 5/28/2010 Options SELL 55 $215 $11,825.00 6/11/2010 Common Stock SELL 8,300 $12.10 $100,430.00 6/11/2010 Common Stock SELL 1,085 $12.05 $13,074.25 6/16/2010 Common Stock SELL 17,000 $10.95 $186,150.00 7/16/2010 Common Stock SELL 200 $5.18* $1,036.00 7/16/2010 Common Stock SELL 57,140 $5.17* $295,413.80 *Actual sales prices used for post-Class Period sales Total Loss: ($283,387.70) Case4:10-cv-04957-PJH Documentl 1-3 Filed01/03/11 Pagel of 3 EXHIBIT C Case4:10-cv-04957-PJH Document11-3 Filed01/03/11 Page2 of 3 Page 1 e.