Item 1.01. Entry into a Material Definitive Agreement.
On
The Agent will use its commercially reasonable efforts to sell the Shares requested by the Company to be sold on its behalf, consistent with the Agent's normal trading and sales practices, under the terms and subject to the conditions set forth in the Equity Distribution Agreement. The Company has no obligation to sell any of the Shares. The Company may instruct the Agent not to sell the Shares if the sales cannot be effected at or above the price designated by the Company in any instruction to the Agent. The Company or the Agent may suspend the offering of the Shares upon proper notice and subject to other conditions, as specified in the Equity Distribution Agreement.
Under the Equity Distribution Agreement, the Agent may sell the Shares by any method permitted by law deemed to be an "at the market offering" as defined in Rule 415(a)(4) under the Securities Act of 1933, as amended (the "Securities Act"), including sales made directly on or through The NASDAQ Global Select Market. The Agent may also sell Shares in negotiated transactions at market prices prevailing at the time of sale or at prices related to the prevailing market prices and/or any other method permitted by law, subject to the Company's prior written consent.
The Company will pay the Agent commissions for its services in acting as sales
agent in the sale of the Shares. Under the Equity Distribution Agreement, the
Agent will be entitled to compensation in an amount of up to 3.0% of the gross
sales price of the Shares sold through it under the Equity Distribution
Agreement. The Company has also agreed to reimburse the Agent for the
out-of-pocket reasonable fees and disbursements of its legal counsel, in an
amount not to exceed
The Offering will terminate upon the termination of the Equity Distribution Agreement. The Equity Distribution Agreement may be terminated by the Agent or (upon ten (10) days' written notice) by the Company at any time, and may also be terminated by mutual agreement of the Agent and the Company. The Equity Distribution Agreement will automatically terminate (1) upon the issuance and sale of all of the Shares or (2) if the Company fails, on any required settlement date, to sell and deliver the number of Shares which it is obligated to sell under the terms of the Equity Distribution Agreement.
The Company currently intends to use any net proceeds from the Offering for general corporate purposes, for the repayment of indebtedness and to advance the development and commercialization of the Company's approved drugs and investigational drug candidates.
The foregoing description of the Equity Distribution Agreement does not purport to be complete and is qualified in its entirety by reference to the Equity Distribution Agreement, which is filed as Exhibit 10.1 to this report and is incorporated herein by reference.
This Current Report on Form 8-K does not constitute an offer to sell or the solicitation of an offer to buy any Shares, nor shall there be any offer, solicitation or sale of any Shares, in any jurisdiction in which it is unlawful to make the offer, solicitation or sale.
The legal opinion of
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description 5.1 Opinion ofHogan Lovells US LLP . 10.1 Equity Distribution Agreement, dated as ofMarch 6, 2020 , betweenVIVUS, Inc. andPiper Sandler & Co. 23.1 Consent ofHogan Lovells US LLP (contained in Exhibit 5.1).
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