Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 1 of 24...Case 20-11779-LSS Doc 103 Filed 07/22/20 Page 21 of 24Case 20-11779-LSS Doc 60 Filed 07/10/20 Page 9 of 9. RLF1 23678657v.1

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.


Exhibit 1

Budget


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$


Exhibit 2

Certificates of Insurance


Ho

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tifi

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: 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

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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.


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


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):

E-MAIL

ADDRESS:

PRODUCER

CUSTOMER ID #:

FAX

(A/C. No.):


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:



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.



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

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ica

te N

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57

00

83

032

53

4


07/13/2020








PRODUCER



E-MAILADDRESS:


(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:








SUBRWVD

INSR LTR



CLAIMS-MADE OCCUR

POLICY LOC

EACH OCCURRENCE




GENERAL AGGREGATE


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:


ANY AUTO

OWNED AUTOS ONLY

SCHEDULED AUTOS

HIRED AUTOS ONLY



PROPERTY DAMAGE(Per accident)


COMBINED SINGLE LIMIT(Ea accident)

EXCESS LIAB

OCCUR


EACH OCCURRENCE

DED

UMBRELLA LIAB

RETENTION



E.L. EACH ACCIDENT

OTH-ER

PER STATUTE

Y / N

(Mandatory in NH)

ANY PROPRIETOR / PARTNER / EXECUTIVE OFFICER/MEMBER N / A




Certificate Holder is included as an Additional Insured in accordance with the policy provisions within the General Liability policy.



ACORD 25 (2016/03)





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


07/15/2020








PRODUCER



E-MAILADDRESS:


(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:








SUBRWVD

INSR LTR



CLAIMS-MADE OCCUR

POLICY LOC

EACH OCCURRENCE




GENERAL AGGREGATE


GEN'L AGGREGATE LIMIT APPLIES PER: PRO-JECT

OTHER:


ANY AUTO

OWNED AUTOS ONLY

SCHEDULED AUTOS

HIRED AUTOS ONLY



PROPERTY DAMAGE(Per accident)


COMBINED SINGLE LIMIT(Ea accident)

EXCESS LIAB

OCCUR


EACH OCCURRENCE

DED

UMBRELLA LIAB

RETENTION



E.L. EACH ACCIDENT

OTH-ER

PER STATUTE

Y / N

(Mandatory in NH)

ANY PROPRIETOR / PARTNER / EXECUTIVE OFFICER/MEMBER N / A



Product Liab003335202 11/01/2019 11/01/2020Claims Made $5,000,000SIR

Products LiabA

SIR applies per policy terms & conditions

$5,000,000




ACORD 25 (2016/03)




Gemini Insurance Company 10833

B

X X

EX153673 11/01/2019 11/01/2020

Claims Made $5,000,000

$5,000,000


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


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


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)


CLAIMS-MADE OCCUR

GEN'L AGGREGATE LIMIT APPLIES PER:

POLICY PRO-JECT LOC

CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY)

CANCELLATION


ACORD 25 (2016/03)© 1988-2015 ACORD CORPORATION. All rights reserved.

CERTIFICATE HOLDER


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

[email protected]

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


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


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:


E-MAILADDRESS:

PRODUCERCUSTOMER ID #:

FAX(A/C. No.):


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:



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

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Exhibit 3

Bank Accounts


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

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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


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


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


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.


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,


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.


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.


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


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


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)


Documents

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