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)
August 5, 2008
VIVUS, INC.
(Exact name of registrant as specified in its charter)
Delaware |
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001-33389 |
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94-3136179 |
(State or other jurisdiction of incorporation) |
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(Commission File Number) |
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(IRS Employer |
1172 CASTRO STREET
MOUNTAIN VIEW, CA 94040
(Address of principal executive offices, including zip code)
(650) 934-5200
(Registrants 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:
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))
On August 5, 2008, VIVUS, Inc. (the Company) entered into a securities purchase agreement (the Purchase Agreement) with the investors set forth on Exhibit A thereto in connection with a registered direct offering of the Companys Common Stock. Pursuant to the terms of the Purchase Agreement, the Company sold and issued a total of 8,365,508 shares of its Common Stock at a price of $7.77 per share for a total of $65 million. All of the shares of Common Stock were offered pursuant to an effective Registration Statement on Form S-3 filed with the Securities and Exchange Commission on May 5, 2008 and which was declared effective on May 24, 2008.
The above description of the Purchase Agreement is a summary only and is qualified in its entirety by reference to Exhibit 10.1 to this Current Report on Form 8-K.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. |
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Description |
10.1 |
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Securities Purchase Agreement, dated as of August 5, 2008. |
99.1 |
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Press release, dated August 5, 2008. |
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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.
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VIVUS, INC. |
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By: |
/s/ Timothy E. Morris |
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Timothy E. Morris Vice President and Chief Financial Officer |
Date: August 5, 2008
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Exhibit No. |
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Description |
10.1 |
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Securities Purchase Agreement, dated as of August 5, 2008 |
99.1 |
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Press release, dated August 5, 2008. |
Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this Agreement), dated as of August 5, 2008, by and among VIVUS, Inc., a Delaware corporation (the Company), and the investors named on Exhibit A hereto (each an Investor and collectively the Investors).
WITNESSETH
WHEREAS, the Company has filed with the Securities and Exchange Commission (the Commission) a Registration Statement (as defined below) relating to the offer and sale from time to time of the Companys securities, including shares of its Common Stock, $0.001 value (Common Stock);
WHEREAS, the Company is offering for sale shares of Common Stock (the Offered Shares) to the Investors pursuant to the Registration Statement; and
WHEREAS, each Investor, severally and not jointly, desires to purchase from the Company Offered Shares on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the recitals (which are deemed to be a part of this Agreement), mutual covenants, representations, warranties and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Person shall mean any individual, partnership, limited liability company, joint venture, firm, corporation, association, trust or other enterprise or any government or political subdivision or any agency, department or instrumentality thereof.
Prospectus shall mean the prospectus forming a part of the Registration Statement and the prospectus supplement relating to the Offered Shares in the form first filed pursuant to Rule 424(b) under the Securities Act, as amended (the Securities Act), as further amended or supplemented prior to the execution of this Agreement, and shall include all information and documents incorporated by reference in such prospectus.
Registration Statement shall mean the registration statement on Form S-3 (File No. 333-150649), including a prospectus, relating to the offer and sale of certain of the Companys Common Stock, which was declared effective by the Commission on May 29, 2008. References herein to the term Registration Statement as of any date shall mean such effective registration statement, as amended or supplemented to such date, including all information and documents incorporated by reference therein.
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if to the Company, to:
VIVUS, Inc.
1172 Castro Street
Mountain View, CA 94040
Attn: Chief Financial Officer
with a copy mailed to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Attn: Mark Reinstra, Esq.
or to such other Person at such other place as the Company shall designate to the Investors in writing; and if to the Investors, at the addresses as set forth on Exhibit A hereto, or at such other address or addresses as may have been furnished to the Company in writing.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
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VIVUS, Inc. |
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By: |
/s/ Timothy E. Morris |
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Name: Timothy E. Morris |
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Title: Chief Financial Officer |
Accepted and agreed to as
of the date
first above written:
CAXTON INTERNATIONAL LIMITED
By: |
/s/John G. Forbes, Jr. |
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By: |
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Name: John G. Forbes, Jr. |
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Name: |
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Title: Chief Financial Officer |
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Title: |
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Address: |
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Telephone:
Facsimile:
Email Address:
Nominee (name in which
Investor Shares are to be registered,
if different than name of Investor):
Address of Nominee:
Taxpayer ID. Number: N/A
(if acquired in the name of a nominee, the taxpayer ID. number of such nominee)
Broker:
Broker Contact Name:
Broker Contact Telephone:
Broker Contact Facsimile:
Broker Contact E-mail Address:
DTC account number:
Accepted and agreed to as
of the date
first above written:
CHILTON SMALL CAP INTERNATIONAL, L.P.
By: Chilton Investment Company, LLC as General Partner
By: |
/s/Norman B. Champ III |
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By: |
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Name: Norman B. Champ III |
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Name: |
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Title: Executive Vice President |
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Title: |
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Address: |
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Telephone:
Facsimile:
Email Address:
Nominee (name in which
Investor Shares are to be registered,
if different than name of Investor):
Address of Nominee:
Taxpayer ID. Number: N/A
(if acquired in the name of a nominee, the taxpayer ID. number of such nominee)
Broker:
Broker Contact Name:
Broker Contact Telephone:
Broker Contact Facsimile:
Broker Contact E-mail Address:
DTC account number:
Accepted and agreed to as
of the date
first above written:
CUDD & CO. (DEKA INVESTMENTS)
By: |
/s/Kai Briming |
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By: |
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Name: Kai Briming |
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Name: |
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Title: Portfolio Manager |
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Title: |
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Address: |
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Telephone:
Facsimile:
Email Address:
Nominee (name in which
Investor Shares are to be registered,
if different than name of Investor):
Address of Nominee:
Taxpayer ID. Number: N/A
(if acquired in the name of a nominee, the taxpayer ID. number of such nominee)
Broker:
Broker Contact Name:
Broker Contact Telephone:
Broker Contact Facsimile:
Broker Contact E-mail Address:
DTC account number:
Accepted and agreed to as
of the date
first above written:
DEERFIELD PRIVATE DESIGN FUND, LP
By: |
/s/Darren Levine |
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By: |
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Name: Darren Levine |
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Name: |
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Title: Chief Financial Officer |
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Title: |
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Address: |
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Telephone:
Facsimile:
Email Address:
Nominee (name in which
Investor Shares are to be registered,
if different than name of Investor):
Address of Nominee:
Taxpayer ID. Number: N/A
(if acquired in the name of a nominee, the taxpayer ID. number of such nominee)
Broker:
Broker Contact Name:
Broker Contact Telephone:
Broker Contact Facsimile:
Broker Contact E-mail Address:
DTC account number:
Accepted and agreed to as
of the date
first above written:
DEERFIELD PRIVATE DESIGN FUND INTERNATIONAL, LP
By: |
/s/Darren Levine |
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By: |
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Name: Darren Levine |
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Name: |
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Title: Chief Financial Officer |
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Title: |
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Address: |
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Telephone:
Facsimile:
Email Address:
Nominee (name in which
Investor Shares are to be registered,
if different than name of Investor):
Address of Nominee:
Taxpayer ID. Number: N/A
(if acquired in the name of a nominee, the taxpayer ID. number of such nominee)
Broker:
Broker Contact Name:
Broker Contact Telephone:
Broker Contact Facsimile:
Broker Contact E-mail Address:
DTC account number:
Accepted and agreed to as
of the date
first above written:
DOMAIN PUBLIC EQUITY PARTNERS, L.P.
By: Domain Public Equity Associates, L.L.C.
By: |
/s/Nicole Vitullo |
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By: |
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Name: Nicole Vitullo |
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Name: |
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Title: Managing Member |
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Title: |
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Address: |
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Telephone:
Facsimile:
Email Address:
Nominee (name in which
Investor Shares are to be registered,
if different than name of Investor):
Address of Nominee:
Taxpayer ID. Number: N/A
(if acquired in the name of a nominee, the taxpayer ID. number of such nominee)
Broker:
Broker Contact Name:
Broker Contact Telephone:
Broker Contact Facsimile:
Broker Contact E-mail Address:
DTC account number:
Accepted and agreed to as
of the date
first above written:
FIDELITY CONTRAFUND ON BEHALF OF ITS SERIES FIDELITY CONTRAFUND
By: |
/s/Adrien Deberghes |
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By: |
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Name: Adrien Deberghes |
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Name: |
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Title: Deputy Treasurer |
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Title: |
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Address: |
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Telephone:
Facsimile:
Email Address:
Nominee (name in which
Investor Shares are to be registered,
if different than name of Investor):
Address of Nominee:
Taxpayer ID. Number: N/A
(if acquired in the name of a nominee, the taxpayer ID. number of such nominee)
Broker:
Broker Contact Name:
Broker Contact Telephone:
Broker Contact Facsimile:
Broker Contact E-mail Address:
DTC account number:
Accepted and agreed to as
of the date
first above written:
FIDELITY CONTRAFUND ON BEHALF OF ITS SERIES FIDELITY NEW INSIGHTS FUND
By: |
/s/Adrien Deberghes |
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By: |
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Name: Adrien Deberghes |
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Name: |
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Title: Deputy Treasurer |
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Title: |
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Address: |
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Telephone:
Facsimile:
Email Address:
Nominee (name in which
Investor Shares are to be registered,
if different than name of Investor):
Address of Nominee:
Taxpayer ID. Number: N/A
(if acquired in the name of a nominee, the taxpayer ID. number of such nominee)
Broker:
Broker Contact Name:
Broker Contact Telephone:
Broker Contact Facsimile:
Broker Contact E-mail Address:
DTC account number:
Accepted and agreed to as
of the date
first above written:
UBS OCONNOR LLC F/B/O: OCONNOR PIPES CORPORATE STRATEGIES MASTER LIMITED
By: |
/s/Jeffrey Putnam |
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By: |
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Name: Jeffrey Putnam |
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Name: |
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Title: Executive Director |
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Title: |
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Address: |
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Telephone:
Facsimile:
Email Address:
Nominee (name in which
Investor Shares are to be registered,
if different than name of Investor):
Address of Nominee:
Taxpayer ID. Number: N/A
(if acquired in the name of a nominee, the taxpayer ID. number of such nominee)
Broker:
Broker Contact Name:
Broker Contact Telephone:
Broker Contact Facsimile:
Broker Contact E-mail Address:
DTC account number:
Accepted and agreed to as
of the date
first above written:
VISIUM LONG BIAS OFFSHORE FUND, LTD
VISIUM LONG BIAS FUND, LP
VISIUM BALANCED OFFSHORE FUND, LTD
VISIUM BALANCED FUND, LP
By: |
/s/Mark Gottlieb |
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By: |
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Name: Mark Gottlieb |
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Name: |
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Title: Authorized Signatory |
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Title: |
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Address: |
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Telephone:
Facsimile:
Email Address:
Nominee (name in which
Investor Shares are to be registered,
if different than name of Investor):
Address of Nominee:
Taxpayer ID. Number: N/A
(if acquired in the name of a nominee, the taxpayer ID. number of such nominee)
Broker:
Broker Contact Name:
Broker Contact Telephone:
Broker Contact Facsimile:
Broker Contact E-mail Address:
DTC account number:
Exhibit A
Investors
Caxton International Limited
Chilton Small Cap International, L.P.
Cudd & Co. (Deka Investments)
Deerfield Private Design Fund, LP
Deerfield Private Design Fund International, LP
Domain Public Equity Partners, L.P.
Fidelity Contrafund: Fidelity Contrafund
Fidelity Contrafund: Fidelity Advisor New Insights Fund
UBS OConnor LLC F/B/O: OConnor Pipes Corporate Strategies Master Limited
Visium Long Bias Offshore Fund, LTD
Visium Long Bias Fund, LP
Visium Balanced Offshore Fund, LTD
Visium Balanced Fund, LP
SCHEDULE I
to
Securities Purchase Agreement
Closing: August 5, 2008
Name of Investor |
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Aggregate Purchase Price |
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Number of Offered Shares |
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Caxton International Limited |
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$ |
19,986,242.64 |
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2,572,232 |
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Chilton Small Cap International, L.P. |
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$ |
3,885,000.00 |
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500,000 |
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Cudd & Co. |
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$ |
2,000,005.77 |
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257,401 |
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Deerfield Private Design Fund, LP |
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$ |
478,748.55 |
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61,615 |
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Deerfield Private Design Fund International, LP |
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$ |
771,250.20 |
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99,260 |
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Domain Public Equity Partners, L.P. |
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$ |
1,554,000.00 |
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200,000 |
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Fidelity Contrafund: Fidelity Contrafund |
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$ |
25,448,226.30 |
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3,275,190 |
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Fidelity Contrafund: Fidelity Advisor New Insights Fund |
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$ |
3,883,523.70 |
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499,810 |
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UBS OConnor LLC F/B/O: OConnor Pipes Corporate Strategy Master Limited |
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$ |
3,885,000.00 |
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500,000 |
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Visium Long Bias Offshore Fund, LTD |
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$ |
393,263.01 |
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50,613 |
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Visium Long Bias Fund, LP |
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$ |
123,978.12 |
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15,956 |
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Visium Balanced Offshore Fund, LTD |
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$ |
1,848,086.73 |
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237,849 |
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Visium Balanced Fund, LP |
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$ |
742,672.14 |
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95,582 |
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Purchase Price Per Share of Common Stock |
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$ |
7.77 |
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Date and Time of Closing: August 5, 2008 at 1:00 p.m., Pacific Standard Time
WIRE INSTRUCTIONS
Aggregate Purchase Price to be wired to:
Bank:
Address:
Account Name:
SWIFT Code:
Account Number:
ABA Number:
E-mail confirmation to:
SCHEDULE II
to
Securities Purchase Agreement
List of Subsidiaries |
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Percent Owned |
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· VIVUS UK Limited (United Kingdom) |
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100 |
% |
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· VIVUS BV (Netherlands) |
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100 |
% |
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· VIVUS Real Estate, LLC (New Jersey) |
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100 |
% |
SCHEDULE III
to
Securities Purchase Agreement
List of Firm Receiving a Fee:
· Trout Capital LLC
740 Broadway
New York, NY 10003
Phone: 646-378-2900
Attn: Jonathan Fassberg
· Amount of Brokers Fee = $1,300,000
Exhibit 99.1
CONTACT:
VIVUS, Inc. |
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The Trout Group |
Timothy E. Morris |
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Ian Clements (SF) 415-392-3385 |
Chief Financial Officer |
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Brian Korb (NYC) 646-378-2923 |
650-934-5200 |
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FOR IMMEDIATE RELEASE
VIVUS Announces $65 Million Registered Direct Offering of Common Stock
MOUNTAIN VIEW, Calif., August 5, 2008 VIVUS, Inc. (NASDAQ: VVUS), a pharmaceutical company dedicated to the development and commercialization of novel therapeutic products, today announced that it has entered into definitive agreements dated August 5, 2008 with a select group of institutional investors to sell 8,365,508 shares of its common stock in a registered direct offering. The investors have agreed to purchase the shares at a purchase price of $7.77 per share resulting in gross proceeds of approximately $65.0 million to VIVUS, before expenses. Trout Capital LLC served as placement agent for the offering.
All of the shares of common stock are being offered pursuant to an effective Registration Statement on Form S-3 previously filed with the Securities and Exchange Commission. The transaction is expected to close on or about August 5, 2008, subject to customary closing conditions.
Several new and existing investors participated in the offering. VIVUS intends to use the proceeds from the financing for general corporate purposes and to fund clinical trials of its product candidates, including the advancement of the clinical program for Qnexa for the treatment of obesity and diabetes.
This press release shall not constitute an offer to sell or the solicitation of an offer to buy any of the securities described herein, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction. Copies of the prospectus supplement and accompanying base prospectus relating to this offering may be obtained at the SECs website at http://www.sec.gov.
About VIVUS
VIVUS, Inc. is a pharmaceutical company dedicated to the development and commercialization of novel therapeutic products. The current portfolio includes investigational product candidates under development to address obesity, diabetes and sexual health, including: Qnexa, which is in phase 3, for the treatment of obesity and phase 2 for the treatment of type 2 diabetes; Luramist (Testosterone MDTS®), for which a phase 2 study has been completed for the treatment of Hypoactive Sexual Desire Disorder (HSDD); and avanafil, for which a phase 2
VIVUS, Inc. 1172 Castro Street, Mountain View, CA 94040 Tel 650-934-5200 Fax 650-934-5389 www.vivus.com
study has been completed for the treatment of erectile dysfunction (ED). MUSE® is approved and currently on the market for the treatment of ED. For more information on clinical trials and products, please visit the companys web site at http://www.vivus.com/.
Certain statements in this press release are forward-looking within the meaning of the Private Securities Litigation Reform Act of 1995. These statements may be identified by the use of forward-looking words such as anticipate, believe, forecast, estimated and intend, among others. These forward-looking statements are based on VIVUS current expectations and actual results could differ materially. There are a number of factors that could cause actual events to differ materially from those indicated by such forward-looking statements. These factors include, but are not limited to, substantial competition; uncertainties of patent protection and litigation; uncertainties of government or third party payer reimbursement; reliance on sole source suppliers; limited sales and marketing efforts and dependence upon third parties; risks related to the development of innovative products; and risks related to failure to obtain FDA clearances or approvals and noncompliance with FDA regulations. As with any pharmaceutical under development, there are significant risks in the development, regulatory approval and commercialization of new products. There are no guarantees that future clinical studies discussed in this press release will be completed or successful or that any product will receive regulatory approval for any indication or prove to be commercially successful. VIVUS does not undertake an obligation to update or revise any forward-looking statement. Investors should read the risk factors set forth in VIVUS Form 10-K for the year ended December 31, 2007 and periodic reports filed with the Securities and Exchange Commission.