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 Companys 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 of December 31, 2019, we had a total of $241.7 million of outstanding debt, $181.4 million of which was due on May 1, 2020. We did not and do not have sufficient financial resources or cash flows from our business to pay our substantial debt, including the full amounts that were due on May 1, 2020 and thus are actively pursuing strategies to address this indebtedness, including transactions with our existing debtholders that restructure or refinance our debt. We may need to seek relief under the U.S. Bankruptcy Code (the Bankruptcy Code) or otherwise complete a restructuring transaction to address our upcoming debt maturity;
· 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 Companys 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 Companys business and results of operations;
· The Companys 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 Companys 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 Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the Securities and Exchange Commission (SEC) on March 3, 2020, as amended on April 29, 2020 and subsequent filings with the SEC.
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.