Item 7.01. Regulation FD Disclosure.
In addition to filing the Chapter 11 Cases
on July 7, 2020, the Debtors also filed on that date a motion (the “Motion”) seeking an interim order by the
Bankruptcy Court – which was granted by that Court on July 10, 2020 (the “NOL Interim Order”) –
establishing certain procedures (the “Interim Procedures”) with respect to direct and indirect trading and transfers
of stock of the Company, and related relief, in order to protect the potential value of the Company’s net operating loss
carryforwards and certain other tax benefits of the Company. On July 8, 2020, the Debtors sought, and the Bankruptcy Court granted,
an emergency order which established similar procedures to the Interim Procedures on an initial interim basis.
The Interim Procedures provide, among other
things, to restrict transactions on or after July 7, 2020 involving, and require notices of the holdings of and proposed transactions
by, any person or group of persons that is or, as a result of such a transaction, would become, a Substantial Stockholder of the
Common Stock issued by VIVUS. For purposes of the Interim Procedures, a “Substantial Stockholder” is any person or,
in certain cases, group of persons that beneficially own, directly or indirectly (and/or owns options to acquire) at least 800,000
shares of Common Stock (representing approximately 4.5% of all issued and outstanding shares of Common Stock as of April 30, 2020).
Pursuant to the Interim Procedures, any Substantial Stockholder must provide notice of such person’s or entity’s
substantial ownership on or before the date that is the later of (x) 10 calendar days after the entry of the NOL Interim Order
or (y) 10 calendar days after such person or entity qualifies as a Substantial Stockholder.
As set out in the Interim Procedures, prior to entering into
certain transactions for the acquisition or disposition of Common Stock, a person, or a group of persons, may need to file a notice
of the proposed transaction with the Bankruptcy Court and serve such notice on the Debtors at least five business days prior to
the proposed transaction date. The Debtors will have three business days after the filing of such notice to file an objection
to the proposed transaction. Any prohibited transfer of stock of the Company on or after July 7, 2020, is null and void ab
initio and may lead to contempt, compensatory damages, punitive damages, or sanctions being imposed by the Bankruptcy Court. A
direct or indirect holder of, or prospective holder of, stock issued by the Debtors should consult the Motion, the NOL Interim
Order, and the Interim Procedures set-out therein.
Cautionary Note Regarding Forward-Looking Statements
Certain statements in this Current Report
on Form 8-K are forward-looking within the meaning of the Private Securities Litigation Reform Act of 1995 and other provisions
of the federal securities laws. Such forward-looking statements are based on current expectations, management’s beliefs and
certain assumptions made by the Company’s management. These statements may be identified by the use of forward-looking words
such as “will,” “shall,” “may,” “believe,” “expect,” “forecast,”
“intend,” “anticipate,” “predict,” “should,” “plan,” “likely,”
“opportunity,” “estimated,” and “potential,” and/or the negative use of these words or other
similar words. All forward-looking statements included in this document are based on our current expectations, and we assume no
obligation to update any such forward-looking statements except to the extent otherwise required by law or the Bankruptcy Court.
Important factors that could cause actual
results to differ materially from those anticipated in any forward-looking statement include, but are not limited to: the delisting
of the Company’s securities from the Nasdaq Global Select Market; and the eligibility of the Company’s securities to
be quoted on the OTC Bulletin Board or in the “Pink Sheets.”
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 also should read the risk factors and accompanying cautionary statements set
forth in the Company’s Form 10-Q for the first quarter ended March 31, 2020, as filed on May 6, 2020, Form 10-K for the fiscal
year ended December 31, 2019, as filed on March 3, 2020, and amended by the Form 10-K/A filed on April 29, 2020, and other reports
filed with, or furnished to, the SEC under the Exchange Act.
The above factors, risks and uncertainties
are difficult to predict, contain uncertainties that may materially affect actual results and may be beyond the Company’s
control. New factors, risks and uncertainties emerge from time to time, and it is not possible for management to predict all such
factors, risks and uncertainties. Although the Company believes that the assumptions underlying the forward-looking statements
contained herein are reasonable, any of the assumptions could be inaccurate, and therefore any of these statements may prove to
be inaccurate. In light of the significant uncertainties inherent in the forward-looking statements included herein, the inclusion
of such information should not be regarded as a representation by the Company or any other person that the Company’s objectives
and plans will be achieved. These forward-looking statements speak only as of the date such statements were made or any earlier
date indicated, and the Company does not undertake any obligation to update or revise any forward-looking statements, whether as
a result of new information, future events, changes in underlying assumptions or otherwise, unless otherwise required by law or
the Bankruptcy Court.