0001193125-13-228053.txt : 20130520 0001193125-13-228053.hdr.sgml : 20130520 20130520171628 ACCESSION NUMBER: 0001193125-13-228053 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20130520 DATE AS OF CHANGE: 20130520 GROUP MEMBERS: QVT ASSOCIATES GP LLC GROUP MEMBERS: QVT FINANCIAL GP LLC GROUP MEMBERS: QVT FUND V LP SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: VIVUS INC CENTRAL INDEX KEY: 0000881524 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 943136179 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-48777 FILM NUMBER: 13859316 BUSINESS ADDRESS: STREET 1: 1172 CASTRO ST STREET 2: STE 200 CITY: MOUNTAIN VIEW STATE: CA ZIP: 94040 BUSINESS PHONE: 6509345265 MAIL ADDRESS: STREET 1: 1172 CASTRO STREET CITY: MOUNTAIN VIEW STATE: CA ZIP: 94040 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: QVT Financial LP CENTRAL INDEX KEY: 0001290162 IRS NUMBER: 113694008 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1177 AVENUE OF THE AMERICAS STREET 2: 9TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10036 BUSINESS PHONE: 212-705-8800 MAIL ADDRESS: STREET 1: 1177 AVENUE OF THE AMERICAS STREET 2: 9TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10036 SC 13D/A 1 d541824dsc13da.htm SC 13D/A SC 13D/A

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

(Amendment No. 1)*

Under the Securities Exchange Act of 1934

 

 

Vivus, Inc.

(Name of Issuer)

Common Stock, $0.001 par value

(Title of Class of Securities)

928551100

(CUSIP Number)

Michael A. Schwartz, Esq.

Willkie Farr & Gallagher LLP

787 Seventh Avenue, New York, NY 10019

(212) 728-8000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

May 16, 2013

(Date of Event which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-l(e), 240.13d-l(f) or 240.13d-1(g), check the following box.  x

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

 

 

 

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

CUSIP No. 928551100

 

  1.   

Names of Reporting Persons.

I.R.S. Identification Nos. of above persons (entities only).

 

QVT Financial LP

11-3694008

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨        (b)  x

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

    AF

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

  6.  

Citizenship or Place of Organization

 

    Delaware

Number of

Shares

Beneficially

Owned by

Each

Reporting

Person

With

 

      7.    

Sole Voting Power

 

    0

     8.   

Shared Voting Power

 

    8,346,697

     9.   

Sole Dispositive Power

 

    0

   10.   

Shared Dispositive Power

 

    8,346,697

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

    8,346,697

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

13.  

Percent of Class Represented by Amount in Row (11)

 

    8.29%

14.  

Type of Reporting Person (See Instructions)

 

    PN

 

 

Page 2 of 8 pages

CUSIP No. 928551100

 

  1.   

Names of Reporting Persons.

I.R.S. Identification Nos. of above persons (entities only).

 

QVT Financial GP LLC

11-3694007

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨        (b)  x

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

    AF

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

  6.  

Citizenship or Place of Organization

 

    Delaware

Number of

Shares

Beneficially

Owned by

Each

Reporting

Person

With

 

      7.    

Sole Voting Power

 

    0

     8.   

Shared Voting Power

 

    8,346,697

     9.   

Sole Dispositive Power

 

    0

   10.   

Shared Dispositive Power

 

    8,346,697

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

    8,346,697

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

13.  

Percent of Class Represented by Amount in Row (11)

 

    8.29%

14.  

Type of Reporting Person (See Instructions)

 

    OO

 

 

Page 3 of 8 pages

CUSIP No. 928551100

 

  1.   

Names of Reporting Persons.

I.R.S. Identification Nos. of above persons (entities only).

 

QVT Fund V LP

98-1034191

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨        (b)  x

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

    WC

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

  6.  

Citizenship or Place of Organization

 

    Cayman Islands

Number of

Shares

Beneficially

Owned by

Each

Reporting

Person

With

 

      7.    

Sole Voting Power

 

    0

     8.   

Shared Voting Power

 

    6,250,337

     9.   

Sole Dispositive Power

 

    0

   10.   

Shared Dispositive Power

 

    6,250,337

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

    6,250,337

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

13.  

Percent of Class Represented by Amount in Row (11)

 

    6.21%

14.  

Type of Reporting Person (See Instructions)

 

    PN

 

 

Page 4 of 8 pages

CUSIP No. 928551100

 

  1.   

Names of Reporting Persons.

I.R.S. Identification Nos. of above persons (entities only).

 

QVT Associates GP LLC

01-0798253

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨        (b)  x

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

    AF

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

  6.  

Citizenship or Place of Organization

 

    Delaware

Number of

Shares

Beneficially

Owned by

Each

Reporting

Person

With

 

      7.    

Sole Voting Power

 

    0

     8.   

Shared Voting Power

 

    8,346,697

     9.   

Sole Dispositive Power

 

    0

   10.   

Shared Dispositive Power

 

    8,346,697

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

    8,346,697

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

13.  

Percent of Class Represented by Amount in Row (11)

 

    8.29%

14.  

Type of Reporting Person (See Instructions)

 

    OO

 

 

Page 5 of 8 pages

Item 1. Security and Issuer

This Amendment No. 1 to Schedule 13D amends and supplements the Schedule 13D filed with the Securities and Exchange Commission by the Reporting Persons on November 15, 2012 (the “Schedule 13D”). Capitalized terms used but not defined herein have the meanings ascribed to them in the Schedule 13D. Except as expressly set forth herein, there have been no changes to the information set forth in the Schedule 13D.

 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

The Funds purchased an aggregate $20,000,000 of the Issuer’s 4.50% convertible senior unsecured notes due May 1, 2020 (the “Notes”) (including $15,325,000 purchased by QVT Fund V LP), pursuant to the Issuer’s offering, on May 16, 2013. Prior to November 1, 2019, the Notes may be converted into shares of Common Stock only upon the occurrence of certain conditions outside of the Reporting Persons’ control. In addition, upon conversion, the Issuer has the option to pay or deliver either cash, shares of Common Stock or a combination of the two. Accordingly, the Reporting Persons will not beneficially own any of the shares of Common Stock into which the Notes are convertible until such time, if any, as the Reporting Persons surrender their Notes for conversion and the Issuer elects to satisfy its conversion obligation in whole or in part by issuing shares of Common Stock.

 

Item 7. Material to Be Filed as Exhibits

Exhibit 1 - Agreement regarding Joint Filing of Schedule 13D

 

Page 6 of 8 pages

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: May 20, 2013

 

QVT FINANCIAL LP

 

By: QVT Financial GP LLC, its General Partner

   

QVT FUND V LP

 

By: QVT Associates GP LLC, its General Partner

By:  

/s/ Tracy Fu

    By:  

/s/ Tracy Fu

Name:   Tracy Fu    Name:   Tracy Fu
Title:   Managing Member    Title:   Managing Member
By:  

/s/ Nicholas Brumm

    By:  

/s/ Nicholas Brumm

Name:   Nicholas Brumm    Name:   Nicholas Brumm
Title:   Managing Member    Title:   Managing Member
QVT FINANCIAL GP LLC    QVT ASSOCIATES GP LLC
By:  

/s/ Tracy Fu

    By:  

/s/ Tracy Fu

Name:   Tracy Fu    Name:   Tracy Fu
Title:   Managing Member    Title:   Managing Member
By:  

/s/ Nicholas Brumm

    By:  

/s/ Nicholas Brumm

Name:   Nicholas Brumm    Name:   Nicholas Brumm
Title:   Managing Member    Title:   Managing Member

 

Page 7 of 8 pages

EX-99.1 2 d541824dex991.htm EX-99.1 EX-99.1

Exhibit 1

Agreement of Joint Filing

Pursuant to 13d-1(k)(1) promulgated under the Securities Exchange Act of 1934, the undersigned persons hereby agree to file with the Securities and Exchange Commission the Statement on Schedule 13D (the “Statement”) to which this Agreement is attached as an exhibit, and agree that such Statement, as so filed, is filed on behalf of each of them.

IN WITNESS WHEREOF, the undersigned have executed this Agreement.

Dated: May 20, 2013

 

QVT FINANCIAL LP

 

By: QVT Financial GP LLC, its General Partner

   

QVT FUND V LP

 

By: QVT Associates GP LLC, its General Partner

By:  

/s/ Tracy Fu

    By:  

/s/ Tracy Fu

Name:   Tracy Fu    Name:   Tracy Fu
Title:   Managing Member    Title:   Managing Member
By:  

/s/ Nicholas Brumm

    By:  

/s/ Nicholas Brumm

Name:   Nicholas Brumm    Name:   Nicholas Brumm
Title:   Managing Member    Title:   Managing Member
QVT FINANCIAL GP LLC    QVT ASSOCIATES GP LLC
By:  

/s/ Tracy Fu

   By:  

/s/ Tracy Fu

Name:   Tracy Fu    Name:   Tracy Fu
Title:   Managing Member    Title:   Managing Member
By:  

/s/ Nicholas Brumm

    By:  

/s/ Nicholas Brumm

Name:   Nicholas Brumm    Name:   Nicholas Brumm
Title:   Managing Member    Title:   Managing Member

 

Page 8 of 8 pages