SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934 (Amendment No. __)
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Filed by a Party other than the Registrant S
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| £ | Preliminary Proxy Statement |
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| £ | Definitive Proxy Statement |
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| £ | Soliciting Material Under Rule 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.
Sarissa Capital Management LP
Sarissa Capital Offshore Master Fund LP
Sarissa Capital Domestic Fund LP
Michael James Astrue
Rolf Bass
Jon C. Biro
Samuel F. Colin
Alexander J. Denner
Johannes J.P. Kastelein
Melvin L. Keating
David York Norton
Herman Rosenman
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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On July 17, 2013, First Manhattan Co. and its affiliates issued a press release announcing that it remained open to a fair settlement with the board of directors (the “Board”) of VIVUS, Inc. (“Vivus”) in connection with the election of directors to the Board at Vivus’ annual meeting of stockholders. A copy of the press release is filed herewith as Exhibit 1.
Also on July 17, 2013, First Manhattan posted additional references to www.ourmaterials.com/VVUS/. Copies of the additional references are filed herewith as Exhibit 2.
EXHIBIT 1
FIRST MANHATTAN CONTINUES TO SEEK FAIR SETTLEMENT
Vivus Board Continues to Disrespect the Shareholder Mandate
NEW YORK, July 17, 2013 – First Manhattan Co. (“FMC”), an owner-managed and operated investment advisory firm and the owner of approximately 9.9 percent of the outstanding shares of VIVUS, Inc. (“Vivus”) (NASDAQ: VVUS), today announced that it remains open to a fair settlement with the Vivus board. First Manhattan has offered to include five incumbent directors, including Leland Wilson, on a reconstituted board, but Vivus continues to insist on a board controlled by their current directors, despite their awareness of the likely voting results of the scheduled July 15 annual meeting, which they postponed.
“Prior to the scheduled July 15 meeting, we engaged in good faith negotiations with the Vivus board to settle the proxy contest, with the assistance of Alex Denner of Sarissa Capital,” said Sam Colin, Senior Managing Director at FMC. “They never made an offer to us that reflected the will of the shareholders, and instead terminated discussions and postponed the meeting. We nevertheless reengaged in settlement discussions over the past several days, and offered that the reconstituted board be divided equally between FMC nominees and Vivus incumbents (including Leland Wilson), plus Tony Zook, the new proposed CEO.”
“The latest Vivus proposal was for three FMC nominees, four incumbents, a “neutral third party” selected by the incumbent board, and “a new CEO”, but no commitment that the new CEO would be Tony Zook. The composition of the new board that would be selecting that CEO therefor would be three FMC nominees, four incumbents and a third party selected by the incumbents. That proposal backtracked from their prior proposals, fell far short of the will of the shareholders, and was unacceptable to us.”
“We remain committed to doing what is best for the company and its shareholders, and to realizing value at Vivus.”
You can find additional details regarding our nominees’ strategic plan for value creation at http://www.ourmaterials.com/VVUS/. The execution of any strategic plan, including the hiring of any management personnel, will be subject to the fiduciary duties of the directors, if elected.
If you have any questions, require assistance with voting your WHITE proxy card, or need additional copies of the proxy materials, please contact our proxy solicitor, MacKenzie Partners, Inc. at (212) 929-5500 or Toll-Free (800) 322-2885.
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 and Where to Find It
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”) FILED WITH THE SECURITIES AND EXCHANGE COMMISSION (THE “SEC”) ON JUNE 3, 2013, 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, SARISSA CAPITAL MANAGEMENT LP, SARISSA CAPITAL OFFSHORE MASTER FUND LP, SARISSA CAPITAL DOMESTIC FUND LP, MICHAEL JAMES ASTRUE, ROLF BASS, JON C. BIRO, SAMUEL F. COLIN, ALEXANDER J. DENNER, JOHANNES J.P. KASTELEIN, MELVIN L. KEATING, DAVID YORK NORTON AND HERMAN ROSENMAN (COLLECTIVELY, THE “PARTICIPANTS”) FROM THE STOCKHOLDERS OF THE COMPANY BECAUSE THEY CONTAIN IMPORTANT INFORMATION, INCLUDING ADDITIONAL INFORMATION ABOUT THE PARTICIPANTS AND A DESCRIPTION OF THEIR DIRECT OR INDIRECT INTERESTS BY SECURITY HOLDINGS. THE DEFINITIVE PROXY STATEMENT AND FORM OF PROXY HAVE BEEN FURNISHED TO SOME OR ALL OF THE STOCKHOLDERS OF THE COMPANY AND ARE, ALONG WITH OTHER RELEVANT DOCUMENTS, AVAILABLE AT NO CHARGE ON THE SEC’S WEB SITE AT HTTP://WWW.SEC.GOV. IN ADDITION, COPIES OF THE DEFINITIVE PROXY STATEMENT AND ACCOMPANYING PROXY CARD MAY BE OBTAINED WITHOUT CHARGE UPON REQUEST BY CONTACTING MACKENZIE PARTNERS, INC. AT (800) 322-2885 (TOLL-FREE) OR (212) 929-5500 (COLLECT).
Contacts
The Abernathy MacGregor Group
Chuck Burgess, 212-371-5999, clb@abmac.com
Mike Pascale, 212-371-5999, mmp@abmac.com
or
Mackenzie Partners
Larry Dennedy, 212-929-5239
Charlie Koons, 212-929-5708
EXHIBIT 2
| Vivus - Why Change Is Needed Now |
First Manhattan Co.
Press releases and other documents
| · | First Manhattan Continues to Seek Fair Settlement, Vivus Board Continues to Disrespect the Shareholder Mandate-July 17th, 2013 [ PDF ] |