November 10, 2020 – The Debtors filed a Second Amended Prepackaged Plan and a related redline showing changes from the version of the Plan filed on August 18th [Docket Nos. 339 and 340, respectively].  Significant amendments to the Plan include, inter alia, terms relating to (i) a compromise and settlement agreed (after court- approved mediation) by the Debtors, the Supporting Noteholder and the Debtors' newly formed Equity Committee (the “Existing Stock Settlement”) and (ii) the creation of a liquidating trust.

The Debtors have not filed an amended Disclosure Statement

The following is a summary of classes, claims, voting rights and expected recoveries (defined terms are as in the Plan and/or Disclosure Statement; see also the Liquidation Analysis below):

• Class 1 (“Other Priority Claims”) is unimpaired, presumed to accept and not entitled to vote on the Plan. The aggregate amount of claims is $3.3mn and the estimated recovery is 100%.
• Class 2 (“Other Secured Claims”) is unimpaired, presumed to accept and not entitled to vote on the Plan. The estimated recovery is N/A.
• Class 3 (“Secured Notes Claims”) is impaired and entitled to vote on the Plan. The aggregate amount of claims is $65.6mn and the estimated recovery is 100%. On the Effective Date (i) The $61,351,000 (sixty-one million, three hundred and fifty one thousand United States Dollars) principal amount of the Secured Notes Claims shall at the option of the Debtors (and the Supporting Noteholder) or the Reorganized Debtors, as applicable be (a) paid in full in Cash from the proceeds of the Exit Facility or (b) exchanged dollar for dollar for new debt under the Exit Facility; and (ii) All unpaid prepayment premium, the applicable payment date fee, and accrued interest (collectively, in an amount not less than $4,199,135.11 (four million, one hundred and ninety-nine thousand, one hundred and thirty-five United States Dollars and eleven cents)), plus interest, reasonable and documented fees, expenses, costs, and other charges of the Secured Notes Trustee and the Supporting Secured Noteholder arising and payable under that certain Secured Notes Indenture shall be paid in full in Cash by the Debtors on the Effective Date from the proceeds of the Exit Facility.
• Class 4 (“Convertible Note Claims”) is impaired and entitled to vote on the Plan. The aggregate amount of claims is $170.9mn and the estimated recovery is 76%.  In full and final satisfaction, settlement, release, and discharge of, and in exchange for each Allowed Convertible Note Claims, on the Effective Date (i) the holder of the Convertible Note shall receive 100% of the Reorganized VIVUS Equity and (ii) any fees and expenses (including the Supporting Unsecured Noteholder’s and Convertible Note Trustee’s reasonable attorneys’ and other advisor fees and expenses) shall be paid in accordance with Section 2.5(b of the Plan.
• Class 5 (“General Unsecured Claims”) is unimpaired, presumed to accept and not entitled to vote on the Plan. The aggregate amount of claims is $20.2mn and the estimated recovery is 6%.
• Class 6 (“Intercompany Claims”) is unimpaired/impaired, deemed to accept/reject and not entitled to vote on the Plan.
• Class 7 (“Interests”) is impaired, deemed to reject and not entitled to vote on the plan.
• Class 8 (“Subordinated Claims”) is impaired, deemed to reject and not entitled to vote on the plan.

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