Item 1.01 Entry into a Material Definitive Agreement.
Registered Direct Offering
On April 1, 2020, VIVUS, Inc. (the "Company") entered into a securities purchase
agreement (the "Purchase Agreement") with certain institutional investors (the
"Purchasers"), pursuant to which the Company agreed to sell and issue, in a
registered direct offering, 7,218,750 of the Company's shares of common stock,
par value $0.001 (the "Common Stock") at a purchase price per share of $1.60 for
aggregate gross proceeds to the Company of approximately $11.55 million, before
deducting fees payable to the placement agent and other estimated offering
expenses payable by the Company. The offering is expected to close on or about
April 2, 2020.
The Purchase Agreement contains representations, warranties, indemnification and
other provisions customary for transactions of this nature.
Pursuant to an engagement agreement (the "Engagement Agreement") between the
Company and H.C. Wainwright & Co., LLC ("Wainwright"), Wainwright agreed to
serve as the exclusive placement agent for the Company in connection with the
offering. The Company agreed to pay Wainwright a cash placement fee equal to
7.0% of the aggregate purchase price for the shares of Common Stock sold in the
offering, a management fee of 1.0% of the aggregate purchase price for the
shares of Common Stock sold in the offering, up to $12,900 for the clearing
expenses of the placement agent, $30,000 for non-accountable expenses, and to
reimburse the placement agent for its legal fees and other accountable expenses
up to $50,000. The net proceeds received by the Company from the transaction
will be used for working capital, general corporate purposes, research and
development, and satisfaction of corporate debts.
In addition, the Company has issued to affiliates of Wainwright warrants
("Placement Agent Warrants") to purchase up to 6.0% of the aggregate number of
shares of Common Stock sold in the offering, or 433,125 shares. The Placement
Agent Warrants will be exercisable immediately for five years from the date of
the Prospectus Supplement, with an exercise price equal to $2.00 per share. A
copy of the form of Placement Agent Warrant is filed as an exhibit to this
Current Report on Form 8-K and is incorporated by reference herein.
The shares in the registered direct offering were issued pursuant to a
prospectus supplement dated as of April 1, 2020 which was filed with the SEC
(the "Prospectus Supplement"), in connection with a takedown from the Company's
shelf registration statement on Form S-3 (File No. 333-227353), which became
effective on September 27, 2018, and the base prospectus included therein (the
"Base Prospectus"). This Current Report on Form 8-K does not constitute, and may
not be used in connection with, an offer to sell, or a solicitation of an offer
to buy, any securities by any person in any jurisdiction in which it is unlawful
for the person to make the offer or solicitation.
The foregoing descriptions of the Purchase Agreement, the Engagement Agreement
and the Placement Agent Warrants are not complete and are qualified in their
entireties by reference to the full text of such documents, copies of which are
filed as exhibits to this Current Report on Form 8-K and are incorporated by
reference herein.
A copy of the opinion of Hogan Lovells US LLP relating to the validity of the
shares of Common Stock issued in the offering is attached as Exhibit 5.1 hereto.
Item 8.01 Other Events.
Pursuant to the Equity Distribution Agreement (the "Equity Distribution
Agreement"), dated March 6, 2020, between the Company and Piper Sandler & Co.
("Piper") the Company may offer and sell, from time to time, its Common Stock
through Piper, as sales agent, in an "at the market offering" as defined in Rule
415(a)(4) promulgated under the Securities Act of 1933, as amended (the "ATM
Offering"). On March 6, 2020, in connection with the ATM Offering, the Company
filed a prospectus supplement pursuant to which the Company may offer and sell,
from time to time, shares of its Common Stock having an aggregate offering price
of up to $11.5 million through Piper (the "ATM Prospectus Supplement"). The
Company has not issued any shares of its Common Stock under the ATM Prospectus
Supplement. The Company suspended the ATM Prospectus Supplement on April 1,
2020, but the Equity Distribution Agreement remains in full force and effect.
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Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
Exhibit No. Description
4.1 Form of Placement Agent Warrant.
5.1 Opinion of Hogan Lovells US LLP
10.1 Form of Securities Purchase Agreement, dated April 1, 2020, by and
between the Company and the Purchasers
10.2 Engagement Agreement, dated April 1, 2020, by and between the Company
and H.C. Wainwright & Co., LLC
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