Item 1.01. Entry into a Material Definitive Agreement.
On
The Noteholder Agreement further provides that the Company will settle the outstanding principal amount of the Convertible Notes owed to all holders other than the Noteholder due on the Maturity Date and will pay all accrued and unpaid interest payable on the Maturity Date to all holders including the Noteholder. Interest on the outstanding principal amount of Convertible Notes held by the Noteholder will continue to accrue during the Grace Period at the rate specified in the Indenture as applicable to Defaulted Amounts (as defined in the Indenture).
Pursuant to the terms of the Noteholder Agreement, the Noteholder shall forbear
from taking certain enforcement actions against the Company with respect to its
failure to pay the principal amount of Convertible Notes owed to the Noteholder
during the Grace Period. The Grace Period commences on the Maturity Date and
ends on the earliest of (i)
The Noteholder Agreement contains certain covenants by the Company including
that it will not (i) directly or indirectly solicit, initiate, negotiate,
consummate or encourage any proposals or offers from any person other than the
Noteholder relating to any financial or other restructuring of the Company or
any Alternative Transaction (as defined in the Noteholder Agreement),
(ii) offer, issue, award, sell or transfer any of its debt or equity securities
or (iii) rescind, cancel, modify, supplement or replace its Preferred Stock
Rights Agreement, dated as of
The foregoing summary of the Noteholder Agreement does not purport to be complete and is subject to and qualified in its entirety by, the full text of the Noteholder Agreement, which is filed as Exhibit 10.1 hereto and incorporated by reference herein.
Item 2.04. Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement.
The information provided under Item 1.01 of this Current Report on Form 8-K (this "Form 8-K") with respect to the Noteholder Agreement is incorporated by reference herein.
Item 7.01. Regulation FD Disclosure.
On
2
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Item 8.01. Other Events. Private Securities Litigation Reform Act of 1995 - A Caution Concerning Forward-Looking Statements
This Form 8-K includes "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995 and are subject to risks, uncertainties and other factors. All statements, other than statements of historical facts, included in this filing that address activities, events or developments that the Company expects, believes, targets or anticipates will or may occur in the future are forward-looking statements. The Company's actual results may differ materially from those anticipated in these forward-looking statements as a result of certain risks and uncertainties and other factors, which may include the following:
† As ofDecember 31, 2019 , we had a total of$241.7 million
of outstanding debt,
† The Company has been managing its liquidity position and,
while the Company continues to evaluate its alternatives, including to restructure or refinance our debt, if the Company cannot reach agreements with its existing noteholders it likely will be necessary for it to commence reorganization proceedings under Chapter 11 of Title 11 of the Bankruptcy Code ("Chapter 11");
† In the event the Company pursues an in-court
restructuring and files for relief under Chapter 11, the Company will be subject to the risks and uncertainties associated with Chapter 11 proceedings;
† The Company may not be able to obtain sufficient
stakeholder support for a financial restructuring of the Company;
† The pursuit of the restructuring or refinancing of the
Company's capital structure has consumed, and will continue to consume, a substantial portion of the time and attention of management, which may have an adverse effect on the Company's business and results of operations;
† The Company's inability to effectuate a satisfactory debt
restructuring or refinancing transaction could have a material adverse effect on the Company;
† Even if a restructuring or refinancing is consummated,
the Company may not be able to achieve its stated goals and continue as a going concern;
† In the event that the Company commences proceedings under
Chapter 11, trading in the Company common stock will be highly speculative and pose substantial risks;
† If the Company fails to maintain compliance with the
continued listing standards of the Nasdaq Global Select Market ("Nasdaq"), it may result in the delisting of the Company's Common Stock from Nasdaq and could have other negative implications under our material agreements with lenders and counterparties; and
† Such other risk factors as set forth in the Company's
Annual Report on Form 10-K for the fiscal year ended
These risks and uncertainties could cause actual results to differ materially from those referred to in these forward-looking statements. The reader is cautioned not to rely on these forward-looking statements. VIVUS does not undertake an obligation to update or revise any forward-looking statements, except as required by law.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description 10.1 Agreement Regarding Convertible Notes, dated as ofApril 29, 2020 , by and amongVIVUS, Inc. , the Noteholder and the Trustee. 99.1 Press Release datedMay 1, 2020 . 3
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