0000902664-13-001856.txt : 20130410 0000902664-13-001856.hdr.sgml : 20130410 20130410163511 ACCESSION NUMBER: 0000902664-13-001856 CONFORMED SUBMISSION TYPE: DFAN14A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20130410 DATE AS OF CHANGE: 20130410 EFFECTIVENESS DATE: 20130410 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: DFAN14A SEC ACT: 1934 Act SEC FILE NUMBER: 001-33389 FILM NUMBER: 13754040 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: FIRST MANHATTAN CO CENTRAL INDEX KEY: 0000728083 IRS NUMBER: 131957714 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: DFAN14A BUSINESS ADDRESS: STREET 1: 437 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2127563300 MAIL ADDRESS: STREET 1: 437 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10022 DFAN14A 1 p13-1084dfan14a.htm VIVUS, INC.

SCHEDULE 14A

Consent Statement Pursuant to Section 14(a)

of the Securities Exchange Act of 1934 (Amendment No. __)

Filed by the Registrant [ ]

Filed by a Party other than the Registrant [x]

Check the appropriate box:

[ ]	Preliminary Consent Statement
[ ]	Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
[ ]	Definitive Consent Statement
[ ]	Definitive Additional Materials
[X]	Soliciting Material Pursuant to § 240.14a-12

Vivus, Inc.

(Name of Registrant as Specified In Its Charter)

First Manhattan Co.

First Health, L.P.

First Health Limited

First Health Associates, L.P.

First BioMed Management Associates, LLC

First BioMed, L.P.

First BioMed Portfolio, L.P.

Michael James Astrue

Jon C. Biro

Samuel F. Colin

Johannes J.P. Kastelein

David York Norton

Herman Rosenman

Rolf Bass

Melvin L. Keating

(Name of Person(s) Filing Consent Statement, if other than the Registrant)

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On April 10, 2013, First Manhattan Co. and its affiliates (collectively, "First Manhattan") issued a press release noting the benefit of the expected modification of the Risk Evaluation and Mitigation Strategy for Qsymia but reiterating its belief that a new commercial strategy is required for Qsymia. In addition, the press release reiterated First Manhattan's intention to nominate six individuals for election to the board of directors of VIVUS at VIVUS's 2013 annual meeting of stockholders. A copy of the press release is attached as Exhibit 1.

EX-99 2 exhibit_1.htm EXHIBIT 1

EXHIBIT 1

First Manhattan Co. Issues Statement on Expected REMS Modification for Qsymia

NEW YORK--(BUSINESS WIRE)--First Manhattan Co. (FMC), an owner-operated investment advisory firm and the beneficial holder of approximately 9.1 percent of the outstanding shares of VIVUS, Inc. (“Vivus”) (NASDAQ: VVUS), today issued the following statement in anticipation of the expected announcement from Vivus that its obesity treatment Qsymia has received a modification in its Risk Evaluation and Mitigation Strategy (REMS):

“The REMS modification for Qsymia, which VIVUS should obtain, will be a step forward. It is necessary but not sufficient for Qsymia’s success. In the right hands, retail distribution through certified pharmacies would enable Qsymia to reach the drug’s full potential for Vivus shareholders. Achieving this goal requires a new commercial strategy, including the execution of the right partnership strategy. Qsymia should be the drug of choice for many Americans suffering from obesity and its devastating medical consequences.

FMC has notified Vivus that it intends to nominate six highly qualified directors at the Company’s 2013 annual meeting of stockholders. The FMC nominees are independent of management and will provide objective stewardship of Qsymia’s commercialization. They will seek out all the facts, not just the views favored by management. The FMC nominees have deep experience in pharmaceutical commercialization, regulatory affairs, public-company finance, and turnaround expertise. They are committed to fixing the fundamental problems at Vivus, reversing the failed Qsymia launch and creating durable value for all Vivus shareholders.”

About First Manhattan Co.

First Manhattan Co. (“FMC”) was founded in 1964 and remains an owner-operated investment advisory firm. FMC is registered with the U.S. Securities and Exchange Commission as an investment adviser and as a broker-dealer, and is a member of the Financial Industry Regulatory Authority (FINRA).

FMC provides professional investment management services primarily to high net worth individuals as well as to partnerships, trusts, retirement accounts, pension plans and institutional clients. The firm currently manages in excess of $14 billion.

Additional Information

FIRST MANHATTAN CO., FIRST HEALTH, L.P., FIRST HEALTH LIMITED, FIRST HEALTH ASSOCIATES, L.P., FIRST BIOMED MANAGEMENT ASSOCIATES, LLC, FIRST BIOMED, L.P. AND FIRST BIOMED PORTFOLIO, L.P. (COLLECTIVELY, “FIRST MANHATTAN”) INTEND TO FILE WITH THE SECURITIES AND EXCHANGE COMMISSION (THE “SEC”) A DEFINITIVE PROXY STATEMENT AND ACCOMPANYING PROXY CARD TO BE USED TO SOLICIT PROXIES FROM THE STOCKHOLDERS OF VIVUS, INC. (THE "COMPANY") IN CONNECTION WITH THE COMPANY'S 2013 ANNUAL MEETING OF STOCKHOLDERS. ALL STOCKHOLDERS

OF THE COMPANY ARE ADVISED TO READ THE DEFINITIVE PROXY STATEMENT AND OTHER DOCUMENTS RELATED TO THE SOLICITATION OF PROXIES BY FIRST MANHATTAN, MICHAEL JAMES ASTRUE, JON C. BIRO, JOHANNES J.P. KASTELEIN, SAMUEL F. COLIN, DAVID YORK NORTON, HERMAN ROSENMAN, ROLF BASS AND MELVIN L. KEATING (COLLECTIVELY, THE "PARTICIPANTS") FROM THE STOCKHOLDERS OF THE COMPANY, WHEN THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION, INCLUDING ADDITIONAL INFORMATION RELATED TO THE PARTICIPANTS. WHEN COMPLETED, THE DEFINITIVE PROXY STATEMENT AND FORM OF PROXY WILL BE FURNISHED TO SOME OR ALL OF THE STOCKHOLDERS OF THE COMPANY AND WILL, ALONG WITH OTHER RELEVANT DOCUMENTS, BE AVAILABLE AT NO CHARGE ON THE SEC'S WEB SITE AT HTTP://WWW.SEC.GOV. IN ADDITION, FIRST MANHATTAN WILL PROVIDE COPIES OF THE DEFINITIVE PROXY STATEMENT AND ACCOMPANYING PROXY CARD (WHEN AVAILABLE) WITHOUT CHARGE UPON REQUEST.

INFORMATION ABOUT THE PARTICIPANTS AND A DESCRIPTION OF THEIR DIRECT OR INDIRECT INTERESTS BY SECURITY HOLDINGS IS CONTAINED IN EXHIBIT 2 TO THE SCHEDULE 14A FILED BY FIRST MANHATTAN WITH THE SEC ON MARCH 8, 2013. THIS DOCUMENT CAN BE OBTAINED FREE OF CHARGE FROM THE SOURCES INDICATED ABOVE.

Contacts

The Abernathy MacGregor Group
Chuck Burgess / Mike Pascale
212-371-5999
clb@abmac.com / mmp@abmac.com