case 20-11779-lss doc 103 filed 07/22/20 page 1 of 24...case 20-11779-lss doc 103 filed 07/22/20...
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Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 1 of 24
In re: VIVUS, Inc., et al. Case No. 20-11779
Notes
Note 1: In lieu of a 12-month cash flow projection, a copy of the 7-week cash flow forecast attached to the Interim Order (I)Authorizing the Use of Cash Collateral Pursuant to Section 363 of the Bankruptcy Code, (II) Granting Adequate Protection to thePrepetition Secured Parties, (III) Granting Liens and Superpriority Claims, (IV) Modifying the Automatic Stay, and (V) Scheduling aFinal Hearing [Docket No. 74] is attached hereto as Exhibit 1.
Note 2: Please refer to the Interim Order (I) Authorizing Debtors to Continue (A) Using Existing Cash Management System, BankAccounts, and Business Forms, (B) Implement Ordinary Course Changes to Cash Management System, (C) Continue Ordinary CourseIntercompany Transactions, (D) Provide Administrative Expense Priority for Postpetition Intercompany Claims, and (E) HonorRelated Prepetition Obligations, and (II) Granting Related Relief [Docket No.60 (the “Interim Cash Management Order”)]. A copy ofthe Interim Cash Management Order is attached hereto as Exhibit 3.
Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 2 of 24
Exhibit 1
Budget
Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 3 of 24
VIVUS, Inc.Cash Flow Forecast (USD)$ in 000s
Post Post Post Post Post Post PostForecast Forecast Forecast Forecast Forecast Forecast Forecast 7/10/20 - 8/21/20 7/10/20 - 8/21/20
Week Ended 7/10/2020 7/17/2020 7/24/2020 7/31/2020 8/7/2020 8/14/2020 8/21/2020 Total Terminal Plus Terminal
Operating Cash Flow
ReceiptsOperating Receipts 721$ 917$ 1,357$ 948$ 1,261$ 1,512$ 1,196$ 7,911$ -$ 7,911$Miscellaneous Receipts (1,250) - - - - - - (1,250) - (1,250)
Total Receipts (529)$ 917$ 1,357$ 948$ 1,261$ 1,512$ 1,196$ 6,661$ -$ 6,661$
Operating DisbursementsPayroll & Benefits -$ (734)$ -$ (609)$ -$ (720)$ (134)$ (2,197)$ -$ (2,197)$Gross to Net Disbursements (240) (445) (257) (365) (1,322) (768) (167) (3,564) - (3,564)Inventory - - (50) (620) - - (423) (1,093) - (1,093)Royalties - - - - - - - - - -Insurance - - - - - - - - - -Regulatory & Compliance (197) (276) (154) (312) (158) (178) (303) (1,577) - (1,577)Other G&A (215) (323) (223) (198) (170) (98) (223) (1,448) - (1,448)
Total Operating Disbursements (652)$ (1,778)$ (684)$ (2,103)$ (1,650)$ (1,764)$ (1,250)$ (9,880)$ -$ (9,880)$
Operating Cash Flow (1,180)$ (861)$ 672$ (1,155)$ (389)$ (252)$ (54)$ (3,219)$ -$ (3,219)$
Debt Related ActivitySecured Notes -$ -$ -$ -$ -$ -$ -$ -$ -$ -$Convertible Notes - - - - - - - - - -
Total Debt Related Activity -$ -$ -$ -$ -$ -$ -$ -$ -$ -$
Non-Operating Disbursements
Professional Fees - - - - - - - - (6,054) (6,054)UCC Professional Fees - - - - - - - - (105) (105)Existing Equity Interests Payout - - - - - - - - (5,000) (5,000)
Total Non-Operating Disbursements -$ -$ -$ -$ -$ -$ -$ -$ (11,159)$ (11,159)$
Net Cash Flow (1,180)$ (861)$ 672$ (1,155)$ (389)$ (252)$ (54)$ (3,219)$ (11,159)$ (14,378)$
Beginning Cash Balance 20,262$ 19,082$ 18,221$ 18,893$ 17,738$ 17,349$ 17,097$ 20,262$ 17,043$ 20,262$Net Cash Flow (1,180) (861) 672 (1,155) (389) (252) (54) (3,219) (11,159) (14,378)
Ending Cash Balance 19,082$ 18,221$ 18,893$ 17,738$ 17,349$ 17,097$ 17,043$ 17,043$ 5,884$ 5,884$
Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 4 of 24
Exhibit 2
Certificates of Insurance
Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 5 of 24
Ho
lde
r Id
en
tifi
er
: 77777
7770707070
0077761616
0455711107
7772432411
5564307460
0077725051
2007345357
7344013010
7570517333
4740100777
0550421235
5130716304
4623275513
0746226317
6127764077
1411375326
6521076727
2420357720
0077777770
7000707007
77777
7770707070
0073525677
1154560007
1210473771
3410007735
0551307651
3107271001
0243710200
7330045034
7331730702
2266316526
1110753233
7716527500
0757632275
3537451075
2767331756
3044077756
1633517655
4077777770
7000707007
Ce
rtif
ica
te N
o :
57
00
83
067
61
9
CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY)
07/15/2020
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on
this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
PRODUCER
Aon Risk Insurance Services West, Inc.San Francisco CA Office425 Market StreetSuite 2800San Francisco CA 94105 USA
PHONE(A/C. No. Ext):
E-MAILADDRESS:
INSURER(S) AFFORDING COVERAGE NAIC #
(866) 283-7122
INSURED 31127Columbia Casualty CompanyINSURER A:
25674Travelers Property Cas Co of AmericaINSURER B:
25682The Travelers Indemnity Co of CTINSURER C:
INSURER D:
INSURER E:
INSURER F:
FAX(A/C. No.): (800) 363-0105
CONTACTNAME:
Vivus, Inc.900 E. Hamilton AvenueSuite 550Campbell CA 95008 USA
COVERAGES CERTIFICATE NUMBER: 570083067619 REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, Limits shown are as requested
POLICY EXP (MM/DD/YYYY)
POLICY EFF (MM/DD/YYYY)
SUBRWVD
INSR LTR
ADDL INSD POLICY NUMBER TYPE OF INSURANCE LIMITS
COMMERCIAL GENERAL LIABILITY
CLAIMS-MADE OCCUR
POLICY LOC
EACH OCCURRENCE
DAMAGE TO RENTED PREMISES (Ea occurrence)
MED EXP (Any one person)
PERSONAL & ADV INJURY
GENERAL AGGREGATE
PRODUCTS - COMP/OP AGG
GEN'L AGGREGATE LIMIT APPLIES PER: PRO-JECT
OTHER:
AUTOMOBILE LIABILITY
ANY AUTO
OWNED AUTOS ONLY
SCHEDULED AUTOS
HIRED AUTOS ONLY
NON-OWNED AUTOS ONLY
BODILY INJURY ( Per person)
PROPERTY DAMAGE(Per accident)X X
BODILY INJURY (Per accident)
$1,000,000C 11/01/2019 11/01/2020 COMBINED SINGLE LIMIT(Ea accident)
BA 0L606660
EXCESS LIAB
X OCCUR
CLAIMS-MADE AGGREGATE
EACH OCCURRENCE
DED
$10,000,000
$10,000,000
11/01/2019UMBRELLA LIABB 11/01/2020CUP2L207994
RETENTION
X
E.L. DISEASE-EA EMPLOYEE
E.L. DISEASE-POLICY LIMIT
E.L. EACH ACCIDENT $1,000,000
X OTH-ER
PER STATUTEB 11/01/2019 11/01/2020
$1,000,000
Y / N
(Mandatory in NH)
ANY PROPRIETOR / PARTNER / EXECUTIVE OFFICER/MEMBER N / AN
WORKERS COMPENSATION AND EMPLOYERS' LIABILITY
If yes, describe under DESCRIPTION OF OPERATIONS below
$1,000,000
UB2L168048
Aggregate596497422 11/01/2019 11/01/2020Claims-Made
E&O-TechnologyA
SIR applies per policy terms & conditions
$5,000,000
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
CANCELLATIONCERTIFICATE HOLDER
AUTHORIZED REPRESENTATIVEOffice of the United States Trustee844 King Street, Suite 2207Wilmington DE 19801 USA
ACORD 25 (2016/03)
©1988-2015 ACORD CORPORATION. All rights reserved
The ACORD name and logo are registered marks of ACORD
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 6 of 24
Hol
der
Id
enti
fier
:
7777777707
0707000777
6161604557
1110777724
3241155643
0746000777
2505120073
4535773440
1301075705
1733347401
0077345140
2127111307
5634402632
3155307062
2235761237
6407714513
7132621210
7672724203
5772000777
7777070007
07007
7777777707
0707000735
2567711545
6000712005
7276035110
0762515402
0665031072
6110002526
1130072200
5513462307
2070333772
0653610007
4232366065
3750007567
3226525375
4007536772
3065731540
7775616335
1765540777
7777070007
07007 570083034190
CE
RT
IFIC
AT
E N
UM
BE
R:
CERTIFICATE OF PROPERTY INSURANCE DATE (MM/DD/YYYY)
07/14/2020
Aon Risk Insurance Services West, Inc.
PRODUCER
San Francisco CA Office425 Market StreetSuite 2800San Francisco CA 94105 USA
(866) 283-7122 (800) 363-0105
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE
OR PRODUCER, AND THE CERTIFICATE HOLDER.
CONTACT
NAME:
PHONE
(A/C. No. Ext):
ADDRESS:
PRODUCER
CUSTOMER ID #:
FAX
(A/C. No.):
INSURER(S) AFFORDING COVERAGE NAIC #
INSURER A:INSURED Travelers Property Cas Co of America 25674
INSURER B:
570000066151
Vivus, Inc.
INSURER D:
INSURER E:
INSURER F:
INSURER C:900 E. Hamilton AvenueSuite 550Campbell CA 95008 USA
LOCATION OF PREMISES/ DESCRIPTION OF PROPERTY (Attach ACORD 101, Additional Remarks Schedule, if more space is required)
CERTIFICATE NUMBER: 570083034190 COVERAGES REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
POLICY EXPIRATION
DATE (MM/DD/YYYY)LIMITS COVERED PROPERTY
POLICY EFFECTIVE
DATE (MM/DD/YYYY)POLICY NUMBER TYPE OF INSURANCE
INSR
LTR
PROPERTY
CAUSES OF LOSS
BASIC
BROAD
EARTHQUAKE
FLOOD
BUILDING
PERSONAL PROPERTY
BUSINESS INCOME
EXTRA EXPENSE
BLANKET BUILDING
BLANKET PERS PROP
BLANKET BLDG & PP
X
X
X
$800,000
A 6306H524920 11/01/2019 11/01/2020
WIND
DEDUCTIBLES
BUILDING
CONTENTSRENTAL VALUE
SPECIAL
Blkt PP Ded
INLAND MARINE TYPE OF POLICY
CAUSES OF LOSS
NAMED PERILS
POLICY NUMBER
CRIME
TYPE OF POLICY
BOILER & MACHINERY /
EQUIPMENT BREAKDOWN
SPECIAL CONDITIONS / OTHER COVERAGES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
CERTIFICATE HOLDER CANCELLATION
AUTHORIZED REPRESENTATIVE
Office of the United States Trustee844 King Street, Suite 2207Wilmington DE 19801 USA
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY
PROVISIONS.
ACORD 24 (2016/03)
© 1995-2015 ACORD CORPORATION. All rights reserved.
The ACORD name and logo are registered marks of ACORD
Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 7 of 24
Ho
lde
r Id
en
tifi
er
: 77777
7770707070
0077761616
0455711107
7772432411
5564307460
0077725051
2007345357
7344013010
7570517333
4740100773
4514021271
1130756344
0263231553
0706222357
6123764077
1051375366
6121076727
2420357720
0077777770
7000707007
77777
7770707070
0073525677
1154560007
0200572770
3511007634
0540317740
2007371100
0342711210
7231055124
7331720712
3267206437
1110743332
6617527511
0756732274
2437550074
2777321756
2155077756
1633517655
4077777770
7000707007
Ce
rtif
ica
te N
o :
57
00
83
032
53
4
CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY)
07/13/2020
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on
this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
PRODUCER
Aon Risk Insurance Services West, Inc.San Francisco CA Office425 Market StreetSuite 2800San Francisco CA 94105 USA
PHONE(A/C. No. Ext):
E-MAILADDRESS:
INSURER(S) AFFORDING COVERAGE NAIC #
(866) 283-7122
INSURED 25674Travelers Property Cas Co of AmericaINSURER A:
INSURER B:
INSURER C:
INSURER D:
INSURER E:
INSURER F:
FAX(A/C. No.): (800) 363-0105
CONTACTNAME:
Vivus, Inc.900 E. Hamilton AvenueSuite 550Campbell CA 95008 USA
COVERAGES CERTIFICATE NUMBER: 570083032534 REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, Limits shown are as requested
POLICY EXP (MM/DD/YYYY)
POLICY EFF (MM/DD/YYYY)
SUBRWVD
INSR LTR
ADDL INSD POLICY NUMBER TYPE OF INSURANCE LIMITS
COMMERCIAL GENERAL LIABILITY
CLAIMS-MADE OCCUR
POLICY LOC
EACH OCCURRENCE
DAMAGE TO RENTED PREMISES (Ea occurrence)
MED EXP (Any one person)
PERSONAL & ADV INJURY
GENERAL AGGREGATE
PRODUCTS - COMP/OP AGG
X
X
X
GEN'L AGGREGATE LIMIT APPLIES PER:
$1,000,000
$1,000,000
$10,000
$1,000,000
$2,000,000
Excluded
A 11/01/2019 11/01/20206306H524920
PRO-JECT
OTHER:
AUTOMOBILE LIABILITY
ANY AUTO
OWNED AUTOS ONLY
SCHEDULED AUTOS
HIRED AUTOS ONLY
NON-OWNED AUTOS ONLY
BODILY INJURY ( Per person)
PROPERTY DAMAGE(Per accident)
BODILY INJURY (Per accident)
COMBINED SINGLE LIMIT(Ea accident)
EXCESS LIAB
OCCUR
CLAIMS-MADE AGGREGATE
EACH OCCURRENCE
DED
UMBRELLA LIAB
RETENTION
E.L. DISEASE-EA EMPLOYEE
E.L. DISEASE-POLICY LIMIT
E.L. EACH ACCIDENT
OTH-ER
PER STATUTE
Y / N
(Mandatory in NH)
ANY PROPRIETOR / PARTNER / EXECUTIVE OFFICER/MEMBER N / A
WORKERS COMPENSATION AND EMPLOYERS' LIABILITY
If yes, describe under DESCRIPTION OF OPERATIONS below
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
Certificate Holder is included as an Additional Insured in accordance with the policy provisions within the General Liability policy.
CANCELLATIONCERTIFICATE HOLDER
AUTHORIZED REPRESENTATIVEOffice of the United States Trustee844 King Street, Suite 2207Wilmington DE 19801 USA
ACORD 25 (2016/03)
©1988-2015 ACORD CORPORATION. All rights reserved
The ACORD name and logo are registered marks of ACORD
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 8 of 24
Ho
lde
r Id
en
tifi
er
: 77777
7770707070
0077761616
0455711107
7772432411
5564307460
0077725051
2007345357
7344013010
7570517333
4740100777
0550421235
5130716304
4623275513
0746226317
6127764077
5451771726
6561076727
2420357720
0077777770
7000707007
77777
7770707070
0073525677
1154560007
0211562760
3500007725
1541206641
3107360111
0342711200
7221154034
6330620702
3277307537
1100752223
7706436511
0747723265
3526440075
2677221647
3154077756
1633517655
4077777770
7000707007
Ce
rtif
ica
te N
o :
57
00
83
06
76
93
CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY)
07/15/2020
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on
this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
PRODUCER
Aon Risk Insurance Services West, Inc.San Francisco CA Office425 Market StreetSuite 2800San Francisco CA 94105 USA
PHONE(A/C. No. Ext):
E-MAILADDRESS:
INSURER(S) AFFORDING COVERAGE NAIC #
(866) 283-7122
INSURED 25445Ironshore Specialty Insurance CompanyINSURER A:
INSURER B:
INSURER C:
INSURER D:
INSURER E:
INSURER F:
FAX(A/C. No.): (800) 363-0105
CONTACTNAME:
Vivus, Inc.900 E. Hamilton AvenueSuite 550Campbell CA 95008 USA
COVERAGES CERTIFICATE NUMBER: 570083067693 REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, Limits shown are as requested
POLICY EXP (MM/DD/YYYY)
POLICY EFF (MM/DD/YYYY)
SUBRWVD
INSR LTR
ADDL INSD POLICY NUMBER TYPE OF INSURANCE LIMITS
COMMERCIAL GENERAL LIABILITY
CLAIMS-MADE OCCUR
POLICY LOC
EACH OCCURRENCE
DAMAGE TO RENTED PREMISES (Ea occurrence)
MED EXP (Any one person)
PERSONAL & ADV INJURY
GENERAL AGGREGATE
PRODUCTS - COMP/OP AGG
GEN'L AGGREGATE LIMIT APPLIES PER: PRO-JECT
OTHER:
AUTOMOBILE LIABILITY
ANY AUTO
OWNED AUTOS ONLY
SCHEDULED AUTOS
HIRED AUTOS ONLY
NON-OWNED AUTOS ONLY
BODILY INJURY ( Per person)
PROPERTY DAMAGE(Per accident)
BODILY INJURY (Per accident)
COMBINED SINGLE LIMIT(Ea accident)
EXCESS LIAB
OCCUR
CLAIMS-MADE AGGREGATE
EACH OCCURRENCE
DED
UMBRELLA LIAB
RETENTION
E.L. DISEASE-EA EMPLOYEE
E.L. DISEASE-POLICY LIMIT
E.L. EACH ACCIDENT
OTH-ER
PER STATUTE
Y / N
(Mandatory in NH)
ANY PROPRIETOR / PARTNER / EXECUTIVE OFFICER/MEMBER N / A
WORKERS COMPENSATION AND EMPLOYERS' LIABILITY
If yes, describe under DESCRIPTION OF OPERATIONS below
Product Liab003335202 11/01/2019 11/01/2020Claims Made $5,000,000SIR
Products LiabA
SIR applies per policy terms & conditions
$5,000,000
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
CANCELLATIONCERTIFICATE HOLDER
AUTHORIZED REPRESENTATIVEOffice of the United States Trustee844 King Street, Suite 2207Wilmington DE 19801 USA
ACORD 25 (2016/03)
©1988-2015 ACORD CORPORATION. All rights reserved
The ACORD name and logo are registered marks of ACORD
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
Gemini Insurance Company 10833
B
X X
EX153673 11/01/2019 11/01/2020
Claims Made $5,000,000
$5,000,000
Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 9 of 24
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORETHE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED INACCORDANCE WITH THE POLICY PROVISIONS.
INSURER(S) AFFORDING COVERAGE
INSURER F :
INSURER E :
INSURER D :
INSURER C :
INSURER B :
INSURER A :
NAIC #
NAME:CONTACT
(A/C, No):FAX
E-MAILADDRESS:
PRODUCER
(A/C, No, Ext):PHONE
INSURED
COVERAGES
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement onthis certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THISCERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIESBELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZEDREPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
OTHER:
(Per accident)
(Ea accident)
$
$
N / A
SUBRWVD
ADDLINSD
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIODINDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THISCERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
$
$
$
$PROPERTY DAMAGEBODILY INJURY (Per accident)
BODILY INJURY (Per person)
COMBINED SINGLE LIMIT
AUTOS ONLY
AUTOSAUTOS ONLYNON-OWNED
SCHEDULEDOWNEDANY AUTO
AUTOMOBILE LIABILITY
Y / NWORKERS COMPENSATIONAND EMPLOYERS' LIABILITY
OFFICER/MEMBER EXCLUDED?(Mandatory in NH)
DESCRIPTION OF OPERATIONS belowIf yes, describe under
ANY PROPRIETOR/PARTNER/EXECUTIVE
$
$
$
E.L. DISEASE - POLICY LIMIT
E.L. DISEASE - EA EMPLOYEE
E.L. EACH ACCIDENT
EROTH-
STATUTEPER
LIMITS(MM/DD/YYYY)POLICY EXP
(MM/DD/YYYY)POLICY EFF
POLICY NUMBERTYPE OF INSURANCELTRINSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
EXCESS LIAB
UMBRELLA LIAB $EACH OCCURRENCE
$AGGREGATE
$
OCCUR
CLAIMS-MADE
DED RETENTION $
$PRODUCTS - COMP/OP AGG
$GENERAL AGGREGATE
$PERSONAL & ADV INJURY
$MED EXP (Any one person)
$EACH OCCURRENCEDAMAGE TO RENTED
$PREMISES (Ea occurrence)
COMMERCIAL GENERAL LIABILITY
CLAIMS-MADE OCCUR
GEN'L AGGREGATE LIMIT APPLIES PER:
POLICY PRO-JECT LOC
CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY)
CANCELLATION
AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)© 1988-2015 ACORD CORPORATION. All rights reserved.
CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIREDAUTOS ONLY
07/10/2020
Willis Towers Watson Northeast, Inc.FKA Willis of New York, Inc.200 Liberty StreetNew York, NY 10281
(212) 915-7949Thomas Meringer
Thomas Meringer
Endurance American Specialty Insurance Company 41718
Vivus Inc.900 East Hamilton AvenueSuite 550Campbell, CA 95008
Markel American Insurance Company 28932Berkshire Hathaway Specialty Insurance Company 22276Berkley Insurance Company 32603AIG Specialty Insurance Company 26883XL Specialty Insurance Company 37885
A Tail Coverage: Directors & Officers (D&O)Tail Coverage: Excess D&O (1st excess)
DOP30001843800 11/15/2020 11/15/2026 Limit of Liability: $10,000,000B MKLM6EL0005696 11/15/2020 11/15/2026 Limit excess of $10,000,000: $10,000,000
Tail Coverage: Excess D&O (2nd excess)C 47-EPC-311593-01 11/15/2020 11/15/2026 Limit excess of $20,000,000: $10,000,000D BPRO8055935 11/15/2020Tail Coverage: Excess D&O (3rd excess) 11/15/2026 Limit excess of $30,000,000: $5,000,000
E Tail Coverage: Excess D&O Side A (4th excess) 04-824-03-01 11/15/2020 11/15/2026 Limit excess of $35,000,000: $10,000,000F Tail Coverage: Excess D&O Side A (5th excess) ELU168921-20 11/15/2020 11/15/2026 Limit excess of $45,000,000: $10,000,000
Excess policies are following form coverage.
Office of the United States Trustee 844 King Street, Suite 2207 Wilmington, DE 19801
Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 10 of 24
Hol
der
Id
enti
fier
:
7777777707
0707000777
6161604557
1110777724
3241155643
0746000777
2505120073
4535773440
1301075705
1733347401
0077705504
2123551307
1630446232
7551307462
2631761277
6407350157
3132661210
7672724203
5772000777
7777070007
07007
7777777707
0707000735
2567711545
6000703104
7366035110
0762405513
0774130073
7111003437
0120072311
5412462306
2071233672
0653710007
5232276064
3751107476
2326435374
4007437772
3174621550
7775616335
1765540777
7777070007
07007 570083067700
CE
RT
IFIC
AT
E N
UM
BE
R:
CERTIFICATE OF PROPERTY INSURANCE DATE (MM/DD/YYYY)
07/15/2020
Aon Risk Insurance Services West, Inc.
PRODUCER
San Francisco CA Office425 Market StreetSuite 2800San Francisco CA 94105 USA
(866) 283-7122 (800) 363-0105
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE
OR PRODUCER, AND THE CERTIFICATE HOLDER.
CONTACTNAME:
PHONE(A/C. No. Ext):
E-MAILADDRESS:
PRODUCERCUSTOMER ID #:
FAX(A/C. No.):
INSURER(S) AFFORDING COVERAGE NAIC #
INSURER A:INSURED Federal Insurance Company 20281
INSURER B:
570000066151
Vivus, Inc.
INSURER D:
INSURER E:
INSURER F:
INSURER C:900 E. Hamilton AvenueSuite 550Campbell CA 95008 USA
LOCATION OF PREMISES/ DESCRIPTION OF PROPERTY (Attach ACORD 101, Additional Remarks Schedule, if more space is required)
CERTIFICATE NUMBER: 570083067700 COVERAGES REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
POLICY EXPIRATION
DATE (MM/DD/YYYY)LIMITS COVERED PROPERTY
POLICY EFFECTIVE
DATE (MM/DD/YYYY)POLICY NUMBER TYPE OF INSURANCE
INSR
LTR
PROPERTY
CAUSES OF LOSS
BASIC
BROAD
EARTHQUAKE
FLOOD
BUILDING
PERSONAL PROPERTY
BUSINESS INCOME
EXTRA EXPENSE
BLANKET BUILDING
BLANKET PERS PROP
BLANKET BLDG & PP
WIND
DEDUCTIBLES
BUILDING
CONTENTSRENTAL VALUE
SPECIAL
INLAND MARINETYPE OF POLICY
CAUSES OF LOSS
NAMED PERILS
POLICY NUMBER
CRIME
TYPE OF POLICY
Crime - Primary
XX $1,000,000Employee DishonestyA 81373438 11/15/2018 11/15/2019
BOILER & MACHINERY /
EQUIPMENT BREAKDOWN
SPECIAL CONDITIONS / OTHER COVERAGES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
CERTIFICATE HOLDER CANCELLATION
AUTHORIZED REPRESENTATIVE
Office of the United States Trustee844 King Street, Suite 2207Wilmington DE 19801 USA
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
ACORD 24 (2016/03)
© 1995-2015 ACORD CORPORATION. All rights reserved
The ACORD name and logo are registered marks of ACORD
Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 11 of 24
Exhibit 3
Bank Accounts
Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 12 of 24
RLF1 23678657v.1
UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE
------------------------------------------------------------ x In re : Chapter 11 : VIVUS, INC., et al., : Case No. 20–11779 (LSS) : : Debtors.1 :
: :
(Jointly Administered) Re: Docket No. 12
------------------------------------------------------------ x
INTERIM ORDER (I) AUTHORIZING DEBTORS TO CONTINUE (A) USING EXISTING CASH MANAGEMENT SYSTEM, BANK ACCOUNTS,
AND BUSINESS FORMS, (B) IMPLEMENT ORDINARY COURSE CHANGES TO CASH MANAGEMENT SYSTEM, (C) CONTINUE ORDINARY COURSE
INTERCOMPANY TRANSACTIONS, (D) PROVIDE ADMINISTRATIVE EXPENSE PRIORITY FOR POSTPETITION INTERCOMPANY CLAIMS, AND (E) HONOR
RELATED PREPETITION OBLIGATIONS, AND (II) GRANTING RELATED RELIEF
Upon the motion (the “Motion”)2 of VIVUS, Inc. and its debtor affiliates, as
debtors and debtors in possession in the above-captioned Chapter 11 Cases (collectively,
the “Debtors”), for entry of orders (i) authorizing the Debtors to (a) continue using their existing
Cash Management System, including, without limitation, the continued maintenance of their
existing Bank Accounts and Business Forms, (b) implement changes to their Cash Management
System in the ordinary course of business, (c) continue to perform under and honor Intercompany
Transactions in the ordinary course, (d) provide administrative expense priority for postpetition
Intercompany Claims, and (e) honor related prepetition obligations, and (ii) granting related relief,
all as more fully set forth in the Motion; and this Court having jurisdiction to consider the Motion
1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax
identification number, as applicable are: Vivus B.V. (1942); Vivus Digital Health Corporation (0625); VIVUS, Inc. (6179); and Vivus Pharmaceuticals Limited (9329). The Debtors’ corporate headquarters and service address is 900 E. Hamilton Avenue, Suite 550, Campbell, CA 95008.
2 Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Motion.
Case 20-11779-LSS Doc 60 Filed 07/10/20 Page 1 of 9Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 13 of 24
2 RLF1 23678657v.1
and the relief requested therein pursuant to 28 U.S.C. §§ 157(a)–(b) and 1334(b), and the Amended
Standing Order of Reference from the United States District Court for the District of Delaware,
dated February 29, 2012; and consideration of the Motion and the requested relief being a core
proceeding pursuant to 28 U.S.C. § 157(b); and venue being proper before this Court pursuant to
28 U.S.C. §§ 1408 and 1409; and due and proper notice of the Motion having been provided to the
Notice Parties under the circumstances, and it appearing that no other or further notice need be
provided; and this Court having held a hearing to consider the interim relief requested in the
Motion (the “Hearing”); and upon the First Day Declaration and the record of the Hearing; and
this Court having determined that the legal and factual bases set forth in the Motion establish just
cause for the relief granted herein; and it appearing that the relief requested in the Motion is
necessary to avoid immediate and irreparable harm to the Debtors and their estates as contemplated
by Rule 6003 of the Federal Rules of Bankruptcy Procedure, and after due deliberation and
sufficient cause appearing therefor,
IT IS HEREBY ORDERED THAT
1. The Motion is granted on an interim basis to the extent set forth herein.
2. The Debtors are authorized, but not directed, pursuant to sections 105(a)
and 363(c) of the Bankruptcy Code, to continue to manage their cash pursuant to the Cash
Management System maintained by the Debtors before the Petition Date; to collect, concentrate,
and disburse cash in accordance with the Cash Management System, including through
Intercompany Transactions; and to make ordinary course changes to their Cash Management
System; provided, however, that the Debtors may not transfer cash in an amount in excess of
$20,000 per month, from a US based Bank Account to a non-US based Bank Account, without the
Case 20-11779-LSS Doc 60 Filed 07/10/20 Page 2 of 9Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 14 of 24
3 RLF1 23678657v.1
express written consent of the Prepetition Secured Parties; provided, further that no Debtor shall
provide or enter into any intercompany loan with another Debtor.
3. The Debtors are authorized, but not directed, to continue using, in their
present form (or as subsequently amended in accordance with this Interim Order), the Business
Forms, as well as checks and other documents related to the Bank Accounts existing immediately
before the Petition Date; provided that once the Debtors’ existing check stock has been used, the
Debtors shall use reasonable efforts, when reordering or preparing checks, to include the
designation “Debtor in Possession” and the jointly administered bankruptcy case number on such
checks; provided, further that, with respect to checks which the Debtors or their agents print
themselves, the Debtors shall include the “Debtor in Possession” legend and the jointly
administered bankruptcy case number on such items within 10 business days of the date of entry
of this Interim Order.
4. Each of the Banks at which the Debtors maintain their accounts relating to
the payment of the obligations described in the Motion are authorized to (i) receive, process, honor,
and pay all checks presented for payment and to honor all fund transfer requests made by the
Debtors related thereto, to the extent that sufficient funds are on deposit in those accounts and
(ii) accept and rely on all representations made by the Debtors with respect to which checks, drafts,
wires, or automated clearing house transfers should be honored or dishonored in accordance with
this or any other order of the Court, whether such checks, drafts, wires, or transfers are dated prior
to, on, or subsequent to the Petition Date, without any duty to inquire otherwise.
5. The Debtors are further authorized to: (a) designate, maintain and continue
to use any or all of their existing Bank Accounts in the names and with the account numbers
existing immediately before the Petition Date in the ordinary course and in a manner consistent
Case 20-11779-LSS Doc 60 Filed 07/10/20 Page 3 of 9Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 15 of 24
4 RLF1 23678657v.1
with prepetition practices; (b) deposit funds in and withdraw funds from such accounts by all usual
means, including through checks, wire transfers, ACH transfers, and other debits in the ordinary
course and in a manner consistent with prepetition practices; (c) pay any Service Obligations or
other charges associated with the Bank Accounts and the Cash Management System, whether
arising before or after the Petition Date, in the ordinary course and consistent with the Debtors’
prepetition practice; and (d) treat their prepetition Bank Accounts for all purposes as debtor in
possession accounts.
6. The Banks are authorized to continue to maintain, service, and administer
the Bank Accounts as accounts of the Debtors as debtors in possession, without interruption and
in the ordinary course, in accordance with the terms of the document governing the Bank Account,
and to receive process, honor, and pay, to the extent sufficient funds are available for deposit in
the applicable Bank Accounts to cover such payments, any and all checks, drafts, wires, credit card
payments, and ACH transfers issued, presented, or drawn on the Bank Accounts on and after the
Petition Date by the holders, makers, or payors thereof, as the case may be.
7. For the avoidance of doubt, nothing in this Interim Order shall authorize the
Debtors to pay prepetition claims absent order of the Court.
8. The Debtors are authorized to open new bank accounts and enter into
control agreements with respect to such accounts; provided that all accounts opened by any of the
Debtors on or after the Petition Date at any bank shall, for purposes of this Interim Order, be
deemed a Bank Account as if it had been listed on Appendix 1 to this Interim Order under the
heading “Bank Accounts” (which shall be promptly amended to identify any Bank Accounts
inadvertently omitted therefrom, with any such amendments being served on the U.S. Trustee and
any statutory committee appointed in these Chapter 11 Cases); provided, further that such opening
Case 20-11779-LSS Doc 60 Filed 07/10/20 Page 4 of 9Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 16 of 24
5 RLF1 23678657v.1
of an account shall be timely indicated on the Debtors’ monthly operating report and notice of such
opening shall be provided within 15 business days to the Office of the United States Trustee for
the District of Delaware (the “U.S. Trustee”); and counsel to any statutory committee appointed
in these Chapter 11 Cases; and provided, further that the Debtors shall only open any such new
Bank Account at a bank that has executed a Uniform Depository Agreement with the U.S. Trustee,
or at such bank that is willing to immediately execute such agreement.
9. Each Bank, may rely upon the representations of the Debtors with respect
to whether any check, draft, wire, ACH transfer or other transfer drawn or issued by the Debtors
prior to, on, or after the Petition Date should be honored pursuant to any order of this Court, and
no Bank that honors a prepetition check or other item drawn on any account that is the subject of
this Interim Order (a) at the direction of the Debtors, (b) in a good-faith belief that this Court has
authorized such prepetition check or item to be honored, or (c) as a result of a mistake or
inadvertence made despite implementation of customary item handling procedures unless such
inadvertence constituted gross negligence or willful misconduct on the part of such Bank, shall be
deemed to be nor shall be liable to the Debtors, their estates, or any other party on account of such
prepetition check or other item being honored postpetition, or otherwise deemed to be in violation
of this Interim Order.
10. Nothing contained herein shall prevent the Debtors from closing any Bank
Accounts as they may deem necessary and appropriate. Any relevant Bank is further authorized
to honor the Debtors’ requests to close such Bank Accounts, and the Debtors shall give notice of
the closure of any account within 15 business days to the U.S. Trustee and counsel to any statutory
committee appointed in these Chapter 11 Cases.
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6 RLF1 23678657v.1
11. For all Banks at which the Debtors maintain Bank Accounts that are party
to a Uniform Depository Agreement with the U.S. Trustee, within 15 business days after the date
of entry of this Interim Order, the Debtors shall (a) contact each such Bank, (b) provide each such
Bank with each of the Debtors’ employee identification numbers, and (c) identify each of their
Bank Accounts held at such Banks as being held by a debtor in possession in a chapter 11 case.
12. For Banks at which the Debtors holds Bank Accounts that are not a party to
a Uniform Depository Agreement with the U.S. Trustee, the Debtors shall use good-faith efforts
to cause such Banks to execute a Uniform Depository Agreement in a form prescribed by the U.S.
Trustee within 45 days of the date of this Interim Order.
13. The Debtors are authorized, but not directed, to continue engaging in
Intercompany Transactions in connection with the Cash Management System in the ordinary
course of business (including with respect to netting or setoffs).
14. Pursuant to sections 364(b) and 503(b)(1) of the Bankruptcy Code, all valid
postpetition Intercompany Claims made in the ordinary course between Debtors shall be accorded
administrative expense status, subject and junior in all respects to any superpriority claims,
including adequate protection claims, granted pursuant to any order of the Court authorizing use
of cash collateral.
15. The Debtors shall maintain accurate and detailed records of all transactions
and transfers, including Intercompany Transactions, within the Cash Management System, so that
all postpetition transfers and transactions are readily ascertainable, traceable, recorded properly,
and distinguished between prepetition and postpetition transactions.
16. The Banks are authorized to charge, and the Debtors are authorized, but not
directed, to pay, honor, or allow, prepetition and postpetition fees, costs, charges, and expenses,
Case 20-11779-LSS Doc 60 Filed 07/10/20 Page 6 of 9Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 18 of 24
7 RLF1 23678657v.1
including the Service Obligations, and charge back returned items, whether such items were
deposited prepetition or postpetition, to the Bank Accounts in the ordinary course. Any such
postpetition fees, costs, charges, and expenses, including the Service Obligations, or charge-backs
shall be entitled to priority as administrative expense pursuant to section 503(b)(1) of the
Bankruptcy Code.
17. The Debtors’ time to comply with section 345(b) of the Bankruptcy Code
is hereby extended for a period of 45 days from the date of this Interim Order, or such additional
time as the U.S. Trustee may agree to (the “Extension Period”), within which to either come into
compliance with section 345(b) of the Bankruptcy Code or to make such other arrangements as
agreed to by the U.S. Trustee; provided, however, that such extension is without prejudice to the
Debtors’ right to request a further extension of the Extension Period or a final waiver of the
requirements of section 345(b) of the Bankruptcy Code in these cases.
18. Notwithstanding anything contained herein, the Debtors shall calculate their
quarterly fees under 28 U.S.C. § 1930(a)(6) based on the disbursements of each Debtor, regardless
of which Debtor pays those disbursements.
19. Nothing contained in the Motion or this Interim Order, nor any payment
made pursuant to the authority granted by this Interim Order, is intended to be or shall be construed
as (a) an admission as to the validity of any claim against the Debtors, (b) a waiver of the Debtors’
or any appropriate party in interest’s rights to dispute the amount of, basis for, or validity of any
claim against the Debtors, (c) a waiver of any claim or cause of action which may exist against
any creditor or interest holder, or (d) an approval, assumption, adoption, or rejection of any
agreement, contract, lease, program, or policy between the Debtors and any third party under
section 365 of the Bankruptcy Code.
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8 RLF1 23678657v.1
20. Notwithstanding entry of this Interim Order, nothing herein shall create, nor
is intended to create, any rights in favor of or enhance the status of any claim held by any party.
21. The requirements of Bankruptcy Rule 6003(b) have been satisfied.
22. Under the circumstances of these Chapter 11 Cases, notice of the Motion is
adequate under Bankruptcy Rule 6004(a).
23. Notwithstanding Bankruptcy Rule 6004(h), this Interim Order shall be
immediately effective and enforceable upon its entry.
24. A hearing to consider entry of an order granting the relief requested in the
Motion on a final basis shall be held on August 19, 2020, at 10:00 a.m. (Eastern Time), and any
objections or responses to the Motion shall be in writing, filed with this Court, and served upon
(a) the proposed attorneys for the Debtors, (i) Weil, Gotshal & Manges LLP, 767 Fifth Avenue,
New York, New York 10153 (Attn: Matthew S. Barr, Esq. ([email protected]), Gabriel A.
Morgan, Esq. ([email protected]), and Natasha S. Hwangpo, Esq.
([email protected])), and (ii) Richards, Layton & Finger, P.A., One Rodney Square,
920 North King Street, Wilmington, DE 19801 (Attn: Mark D. Collins, Esq. ([email protected])
and Zachary I. Shapiro, Esq. ([email protected])); (b) the Office of the United States Trustee for
the District of Delaware, 844 N. King Street, Wilmington, Delaware 19801 (Attn: Linda J. Casey,
Esq.) ([email protected]); (c) counsel to the Secured Notes Trustee, Shipman & Goodwin
LLP, One Constitution Plaza, Hartford, CT 06103 (Attn: Kimberly S. Cohen, Esq.
([email protected]) and Robert M. Borden, Esq. ([email protected])); (d) attorneys
for the Secured Noteholder and Convertible Noteholder, (i) Dentons US LLP, 1221 Avenue of the
Americas, New York, NY 10020 (Attn: Oscar N. Pinkas, Esq. ([email protected]), Brian
E. Greer, Esq. ([email protected]), and Lauren Macksoud, Esq.
Case 20-11779-LSS Doc 60 Filed 07/10/20 Page 8 of 9Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 20 of 24
LAURIE SELBER SILVERSTEIN UNITED STATES BANKRUPTCY JUDGE
9 RLF1 23678657v.1
([email protected])) and (ii) Cole Schotz P.C., 500 Delaware Avenue, Suite 1410,
Wilmington, DE 19801 (Attn: Justin R. Alberto, Esq. ([email protected]) and Andrew J.
Roth-Moore, Esq. ([email protected])); and (e) counsel to the Convertible Notes
Trustee, Holland & Knight LLP, 31 West 52nd Street, 12th Floor, New York, New York 10019
(Attn: Daniel Brown, Esq. ([email protected])), by no later than 4:00 p.m. (Eastern
Time) on August 10, 2020.
25. The Debtors are authorized to take all action necessary to effectuate the
relief granted in this Interim Order.
26. This Court shall retain jurisdiction to hear and determine all matters arising
from or related to the implementation, interpretation, or enforcement of this Interim Order.
Dated: July 10th, 2020 Wilmington, Delaware
Case 20-11779-LSS Doc 60 Filed 07/10/20 Page 9 of 9Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 21 of 24
RLF1 23678657v.1
Appendix 1
Entity Bank Name Account Number (XXXX)
Account Type
Bank Accounts
1 VIVUS, Inc. Wells Fargo
Bank 0371 Master Account
2 VIVUS, Inc. Wells Fargo
Bank 8800
Investment Account
3 Vivus Pharmaceutical Limited Wells Fargo
Bank 4797
Canadian Operating Account
4 Vivus B.V. ABN AMRO
Bank N.V 7241
Dutch Disbursement
Account
5 Vivus B.V. ABN AMRO
Bank N.V 0455
Dutch Disbursement
Account
Case 20-11779-LSS Doc 60-1 Filed 07/10/20 Page 1 of 1Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 22 of 24
Exhibit 4
Retainers Paid
Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 23 of 24
In re: VIVUS, Inc., et al. Case No. 20-11779
Weil, Gotshal & Manges LLP(2) VIVUS, Inc. 498,006.00$Ernst & Young LLP(2) VIVUS, Inc. 92,481.00$Richards, Layton & Finger, P.A.(2)(3) VIVUS, Inc. -$Stretto VIVUS, Inc. 10,000.00$
Notes:1) Professionals, other than Richards, Layton & Finger, P.A. (“RL&F”) as set forth in footnote 3 below,have not applied amounts against the retainers as of yet. The actual amount of the retainer balance is subject torevision and reconciliation.2) Employment applications propose that remaining amount after the application of any prepetition feesand expenses be treated as an evergreen retainer.3) Per the RL&F retention application, retainer amount was drawn down prior to the Petition Date based onservices performed and anticipated to be performed through the Petition Date. This amount represented agood-faith estimate of the fees and expenses associated with all such services,including fees and expensesalready recorded in RL&F’s billing system. Any portion of the amounts drawn which, upon reconciliation,is not attributed to prepetition fees and expenses, will be added to the evergreen retainer balance to be heldby RL&F as security throughout the Debtors’ bankruptcy cases until RL&F’s fees and expenses are awardedby final order and are then payable to RL&F.
SCHEDULE OF RETAINERS PAID TO PROFESSIONALS(This schedule is to include each Professional paid a retainer)
Payee Name of PayorRetainer Balance as of
7/6/2020(1)
Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 24 of 24