Item 1.01. Entry into a Material Definitive
Agreement.
On March 6, 2020, VIVUS, Inc. (the "Company") entered
into an Equity Distribution Agreement (the "Equity Distribution Agreement") with Piper Sandler & Co., as sales agent
(the "Agent"), pursuant to which the Company may issue and sell, from time to time, through the Agent (the "Offering")
shares of its common stock having an aggregate offering price of up to $50,000,000 (the "Shares"). Any Shares offered
and sold in the Offering will be issued pursuant to the Company’s Registration Statement on Form S-3 filed with the Securities
and Exchange Commission (the "SEC") on September 14, 2018, the prospectus supplement relating to the Offering filed
with the SEC on March 6, 2020 and any applicable additional prospectus supplements related to the Offering that form a part of
the Registration Statement. The aggregate market value of Shares eligible for sale in the Offering and under the Equity Distribution
Agreement will be subject to the limitations of General Instruction I.B.6 of Form S-3, to the extent required under such instruction.
The prospectus supplement filed with the SEC on March 6, 2020 is only offering Shares having an aggregate offering price of $11.5
million. The Company will be required to file another prospectus supplement in the event it determines to offer more than $11.5
million of Shares in accordance with the terms of the Equity Distribution Agreement, to the extent then permitted under General
Instruction I.B.6 of Form S-3.
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 $50,000, including fees and disbursements of the
Agent's counsel incident to any required review by FINRA. Under the terms of the
Equity Distribution Agreement, the combined compensation and reimbursement to the Agent will not exceed 8.0% of the gross
sales price of the Shares sold pursuant to the Equity Distribution Agreement. In addition, the Company has
agreed to indemnify the Agent against specified liabilities, including liabilities under the Securities Act or the Securities
Exchange Act of 1934, as amended, or to contribute to payments that the Agent may be required to make because of such
liabilities.
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 Hogan Lovells US LLP regarding the legality
of the issuance and sale of the Shares is filed as Exhibit 5.1 to this report and is incorporated by reference herein.