VIVUS Adopts Stockholder Rights Plan
December 31 2019 - 07:30AM
VIVUS, Inc. (Nasdaq: VVUS) (the “Company”), a biopharmaceutical
company, today announced that on December 30, 2019 its board of
directors adopted a new stockholder rights plan to replace the
Company’s stockholder rights plan that expired in accordance with
its terms on November 9, 2019.
Under the new rights plan, the terms of which
are substantially similar to the terms of the Company’s prior
rights plan, VIVUS will issue a dividend of one right for each
share of its common stock held by stockholders of record as of the
close of business on January 13, 2020.
The new rights plan is designed to protect
stockholder value by mitigating the likelihood of an “ownership
change” that would result in significant limitations on the
Company’s ability to use its net operating losses or other tax
attributes to offset future income. The new rights plan is similar
to rights plans adopted by other public companies with significant
net operating loss carryforwards. The new rights plan provides,
subject to certain exceptions that if any person or group acquires
4.9% or more of the Company’s outstanding common stock, there would
be a triggering event potentially resulting in significant dilution
in the voting power and economic ownership of that person or group.
Existing stockholders who hold 4.9% or more of the Company’s
outstanding common stock as of the date of the new rights plan will
trigger a dilutive event only if they acquire an additional 1% of
the outstanding shares of VIVUS common stock.
“The stockholder rights plan protects the
interests of all stockholders from the possibility of losing
potential substantial value through limitations on the Company's
ability to utilize its net operating loss carryforwards under
Section 382 of the Internal Revenue Code of 1986, as amended,” said
VIVUS Chief Executive Officer, John Amos. “The rights plan is not
intended for defensive or antitakeover purposes, but to preserve
stockholder value, and our Board of Directors believes it is in the
best interests of VIVUS’ stockholders.”
The new rights plan will continue in effect
until December 30, 2022, unless earlier terminated or the rights
are earlier exchanged or redeemed by the Board of Directors. The
Company expects to submit the new rights plan to a vote at the
Company’s 2020 annual meeting of stockholders. If stockholders do
not approve the plan at the 2020 annual meeting, it will expire at
the close of business on the following day.
Additional information with respect to the new
stockholder rights plan will be contained in the Current Report on
Form 8-K that the Company is filing with the Securities and
Exchange Commission. A copy of the Form 8-K can be obtained at the
SEC’s Internet website at www.sec.gov.
About VIVUS
VIVUS is a biopharmaceutical company committed
to the development and commercialization of innovative therapies
that focus on advancing treatments for patients with serious unmet
medical needs. For more information about VIVUS, please visit
www.vivus.com.
Forward-Looking Statements
Certain statements in this press release are
forward-looking within the meaning of the Private Securities
Litigation Reform Act of 1995 and are subject to risks,
uncertainties and other factors, including risks and uncertainties
related to our ability to execute on our business strategy to
enhance long-term stockholder value; risks and uncertainties
related to our ability to address our outstanding balance of the
convertible notes due in May 2020; risk and uncertainties related
to the timing, strategy, structure and success of our capital
raising efforts; risks and uncertainties related to our expected
future revenues, operations and expenditures; risks and
uncertainties related to the impact of the indicated uses and
contraindications contained in the Qsymia label and the Risk
Evaluation and Mitigation Strategy requirements; risks and
uncertainties related to the design and outcome of any clinical
study required by the U.S. Food and Drug Administration to expand
the Qsymia label for a binge eating indication; risks and
uncertainties related to our, or our current or potential
partners’, ability to successfully commercialize Qsymia; risks and
uncertainties related to our ability to sell through the Qsymia
retail pharmacy network and the Qsymia Advantage Program; risks
associated with the preservation of our net operating losses; risks
associated with the difficulty of determining all of the facts
relevant to Section 382 of the Internal Revenue Code of 1986, as
amended (the “Code”); risks associated with soliciting and
obtaining stockholder approval of the rights plan at the Company’s
2020 annual meeting of stockholders; risks associated with the
unreported buying and selling activity with respect to our common
stock; risks associated with unanticipated interpretations of the
Code and related regulations; the risk that the approval of the
rights plan does not prevent one or more stockholders of the
Company from, notwithstanding the dilution to such stockholder’s
interests under the plan, engaging in buying and selling activity
that may have an adverse impact on the Company’s tax attributes;
risks associated with the ability of the rights plan to preserve
the value of our net operating losses; risks associated with the
enforceability of the rights plan under Delaware law or other
applicable law; the risk that the rights plan may discourage
third-party offers to acquire the Company, or an interest therein;
and the risk that the rights plan may have an adverse effect on the
value of our common stock. 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. Investors should read the
risk factors set forth in VIVUS’ Form 10-K for the year ended
December 31, 2018 as filed on February 26, 2019, and periodic
reports filed with the Securities and Exchange Commission. VIVUS
does not undertake an obligation to update or revise any
forward-looking statements.
Contact: VIVUS,
Inc.
Mark
Oki
Chief Financial Officeroki@vivus.com
650-934-5200
Lazar FINN PartnersDavid CareySenior
Partnerdavid.carey@finnpartners.com212-687-1768
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