0000902664-13-002396.txt : 20130603 0000902664-13-002396.hdr.sgml : 20130603 20130603182120 ACCESSION NUMBER: 0000902664-13-002396 CONFORMED SUBMISSION TYPE: 3 PUBLIC DOCUMENT COUNT: 1 CONFORMED PERIOD OF REPORT: 20130523 FILED AS OF DATE: 20130603 DATE AS OF CHANGE: 20130603 ISSUER: 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 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 REPORTING-OWNER: OWNER DATA: COMPANY CONFORMED NAME: KEATING MELVIN L CENTRAL INDEX KEY: 0001263463 FILING VALUES: FORM TYPE: 3 SEC ACT: 1934 Act SEC FILE NUMBER: 001-33389 FILM NUMBER: 13889153 MAIL ADDRESS: STREET 1: 18 DRIFTWOOD DRIVE CITY: LIVINGSTON STATE: NJ ZIP: 07039 REPORTING-OWNER: OWNER DATA: COMPANY CONFORMED NAME: Norton David Y CENTRAL INDEX KEY: 0001529193 FILING VALUES: FORM TYPE: 3 SEC ACT: 1934 Act SEC FILE NUMBER: 001-33389 FILM NUMBER: 13889154 MAIL ADDRESS: STREET 1: 8 GREENHOLM STREET, APT C CITY: PRINCETON STATE: NJ ZIP: 08540 REPORTING-OWNER: OWNER DATA: COMPANY CONFORMED NAME: BIRO JON C CENTRAL INDEX KEY: 0001221219 FILING VALUES: FORM TYPE: 3 SEC ACT: 1934 Act SEC FILE NUMBER: 001-33389 FILM NUMBER: 13889155 MAIL ADDRESS: STREET 1: 5858 WESTHEIMER STREET 2: SUITE 200 CITY: HOUSTON STATE: TX ZIP: 77057 REPORTING-OWNER: OWNER DATA: COMPANY CONFORMED NAME: ROSENMAN HERM CENTRAL INDEX KEY: 0001230057 FILING VALUES: FORM TYPE: 3 SEC ACT: 1934 Act SEC FILE NUMBER: 001-33389 FILM NUMBER: 13889156 MAIL ADDRESS: STREET 1: GEN-PROBE INCORPORATED STREET 2: 10210 GENETIC CENTER DRIVE CITY: SAN DIEGO STATE: CA ZIP: 92121 REPORTING-OWNER: OWNER DATA: COMPANY CONFORMED NAME: First BioMed Management Associates LLC CENTRAL INDEX KEY: 0001458280 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 3 SEC ACT: 1934 Act SEC FILE NUMBER: 001-33389 FILM NUMBER: 13889157 BUSINESS ADDRESS: STREET 1: 399 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 212 756 3300 MAIL ADDRESS: STREET 1: 399 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 REPORTING-OWNER: OWNER DATA: COMPANY CONFORMED NAME: FIRST MANHATTAN CO CENTRAL INDEX KEY: 0000728083 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 3 SEC ACT: 1934 Act SEC FILE NUMBER: 001-33389 FILM NUMBER: 13889158 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 3 1 p13-1351form3.xml VIVUS, INC. X0206 3 2013-05-23 0 0000881524 VIVUS INC VVUS 0000728083 FIRST MANHATTAN CO 399 PARK AVENUE NEW YORK NY 10022 0 0 1 1 SEE REMARKS 0001458280 First BioMed Management Associates LLC 399 PARK AVENUE NEW YORK NY 10022 0 0 1 1 SEE REMARKS 0001230057 ROSENMAN HERM 8420 SANTALUZ VILLAGE GREEN E. #100 SAN DIEGO CA 92121 0 0 1 1 SEE REMARKS 0001221219 BIRO JON C 5858 WESTHEIMER SUITE 200 HOUSTON TX 77057 0 0 1 1 SEE REMARKS 0001529193 Norton David Y 8 GREENHOLM STREET, APT C PRINCETON NJ 08540 0 0 1 1 SEE REMARKS 0001263463 KEATING MELVIN L 18 DRIFTWOOD DRIVE LIVINGSTON NJ 07039 0 0 1 1 SEE REMARKS Common Stock, $0.001 par value ("Common Stock") 4393316 I See footnotes Common Stock 5000 D Common Stock 2000 D Common Stock 1500 D Common Stock 100 D Common Stock 900 D The shares of Common Stock reported on this line may be deemed to be indirectly beneficially owned by First Manhattan Co., a New York limited partnership ("FMC"), certain of its partners and/or First BioMed Management Associates, LLC ("FBMA"), a Delaware limited liability company, as described herein and in footnote 2 below. The sole general partner of FMC is First Manhattan LLC ("FMLLC"), a New York limited liability company. The sole managing members of FBMA are FMC and Samuel F. Colin ("Dr. Colin"). The securities reported on this line include (i) a number of shares of Common Stock which represents a proportion of the aggregate number of shares of Common Stock directly held by First Health, L.P., First Health Limited and First Health Associates, L.P. (collectively, the "First Health Funds"), pooled investment vehicles to which FMC acts as the investment advisor, which proportion is attributable to the limited partnership interests of certain partners of FMC that are also limited partners of the First Health Funds; (ii) shares of Common Stock directly held by First BioMed, L.P. and First BioMed Portfolio, L.P., pooled investment vehicles to which FMBA acts as the investment advisor; and (iii) shares of Common Stock held in the accounts of partners, and the immediate family of partners, including shares of Common Stock held in Dr. Colin's personal account and shares of Common Stock held by trusts established for the benefit of Dr. Colin's family members. (continued from footnote (2)) The shares of Common Stock reported on this line include only those shares in which FMC, certain of its partners and/or FMBA, as applicable, may be deemed to have a pecuniary interest (as such term is defined under Rule 16a-1(a)(2) of the Securities Exchange Act of 1934, as amended (the "1934 Act")) and accordingly does include additional shares which FMC and/or FMBA, as applicable, may be deemed to beneficially own for purposes of Section 13(d) of the 1934 Act as reported in the Schedule 13D filed by the reporting persons (the "Schedule 13D"). The shares of Common Stock reported on this line are held directly by Herman Rosenman. The shares of Common Stock reported on this line are held directly by Jon C. Biro. The shares of Common Stock reported on this line are held directly by David York Norton. The shares of Common Stock reported on this line are held directly by Rolf Bass. The shares of Common Stock reported on this line are held directly by Melvin L. Keating. For purposes of Rule 16a-1(a)(2) of the 1934 Act, each of the reporting persons disclaims beneficial ownership of the shares reported herein to the extent such beneficial ownership exceeds its pecuniary interest therein. As described in Item 4 of Amendment No. 5 to the Schedule 13D, the reporting persons and Alexander J. Denner, Ph.D. ("Dr. Denner") and his affiliated funds and their investment manager (collectively with Dr. Denner, the "Denner Parties") may be deemed to be a "group" pursuant to Rule 13d-5(b)(1) promulgated under the1934 Act and as such may be deemed, collectively, to beneficially own more than 10% of the outstanding shares of Common Stock for purposes of Section 13(d) of the 1934 Act. The reporting persons each disclaim beneficial ownership of any shares of Common Stock beneficially owned by the Denner Parties. s/ Neal K. Stearns, Managing Member of First Manhattan LLC, General Partner of First Manhattan Co. 2013-06-03 /s/ Neal K. Stearns, Managing Member of First Manhattan LLC, General Partner of First Manhattan Co., Co-Managing Member of First BioMed Management Associates, LLC 2013-06-03 /s/ Herman Rosenman 2013-06-03 /s/ Jon C. Biro 2013-06-03 /s/ David York Norton 2013-06-03 /s/ Rolf Bass 2013-06-03 /s/ Melvin L. Keating 2013-06-03