VIVUS, Inc.: Offer Deadline Passed; Deal Or No Deal?

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A firm no one has heard of said last month that it might make an offer to buy VIVUS, Inc. (NASDAQ:VVUS) for $640 million. However, the deadline for making the offer that was reported in the regulatory filing was Friday and has come and gone—with no word about a buyout from Vivus or Aspen Investment Fund.

Board member leaves, CEO bonus set

There is a regulatory filing from VIVUS, Inc. (NYSE:VVUS) dated Friday regarding the departure of board member Robert Wilson, who had already stated earlier this month that he wouldn’t stand for re-election at the annual shareholders’ meeting.

The same filing also indicated that the board’s Compensation Committee has approved “goals and objectives” in connection with new CEO Seth Fischer’s CEO’s compensation for this year. He will be able to receive up to 80% of his base salary in cash based on the following objectives: “the Company’s achieving target net revenue and a target number of Qsymia prescriptions dispensed for the fiscal year ending 2014, the continued development of the Company’s commercial team and continued expense optimization.” He will also be able to receive 20% of his base salary if VIVUS, Inc. (NASDAQ:VVUS) achieves a target level of third-party coverage of Qsymia prescriptions as of the fourth quarter of fiscal year 2014.

However, the filing says nothing about buyout negotiations.

Any buyout for VIVUS?

We pointed out earlier this month that Aspen never actually owned any shares of VIVUS, Inc. (NASDAQ:VVUS) and could never own shares of the drug maker. The entire reported stake—which was more than 9%–was in options and contracts, so the firm not only never had to actually make a buyout offer but also might never own any shares.

VIVUS, Inc. (NYSE:VVUS), for its part, never had any comment on the supposed transaction, so it isn’t known whether there were any discussions between the company and Aspen. However, the 13D filing that led to speculation about the buyout appeared to be a bit strange, according to the lawyers we spoke with.

Aspen still could buy Vivus shares

It’s worth noting that the options Aspen Investment Fund purchased expire next month. As a result, it is still possible that the firm will buy shares of VIVUS, Inc. (NASDAQ:VVUS)—if the company’s stock price increases. The drug maker’s 52-week range is $4.56 to $15.40 per share, although it hasn’t seen prices close to $15 a share since last July, so we’re about to see the high point of that range decline significantly unless something changes.

VIVUS, Inc. (NASDAQ:VVUS) has seen its share of trouble over the last year. First Manhattan sued it for delaying its shareholder meeting in July 2013. Then in September, the drug maker appointed a new CEO. In December, Vivus announced a licensing and commercialization deal with Sanofi SA (ADR) (NYSE:SNY), which gave Vivus shares a marginal lift in price. The drug maker has been struggling to gain a foothold in the market for its obesity drug Qsymia. At one point, the drug was expected to be a huge success, but sales have since failed to impress investors.

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