First Manhattan Co. (FMC), an owner-managed and operated investment advisory firm and the largest shareholder of VIVUS, Inc. (“Vivus” or the "Company") (NASDAQ: VVUS) with approximately 9.64 percent of the outstanding common stock of the Company, today issued the following statement regarding Vivus’ announcement that it has added a director to its now seven person Board of Directors.
“We are pleased that Vivus has chosen to add a new director with large pharma experience and one who has been associated with a long-standing shareholder. It is a sad statement that multiple failed attempts to launch Qsymia, an obesity drug with blockbuster potential, were clearly not enough to prod this Board into action. It was only in response to FMC’s campaign to elect our six highly qualified nominees that the current Board has chosen to act.
“The addition of a new director is a typical tactic taken from a defensive playbook that is often used by entrenched Boards seeking to retain control at all costs. Vivus’ Board and its senior management have repeatedly failed in multiple attempts to launch Qsymia. The result has been a significant destruction of nearly $1.7 billion, or 60 percent, of shareholder value since July 17, 2012, the date Qsymia was approved by the FDA.
“We believe that Vivus’ shareholders deserve a new approach. The addition of one retired large pharma director falls woefully short. A total Board overhaul is necessary at Vivus. Our highly qualified nominees have the experience, skills and independence necessary to attract the best talent, successfully partner Qsymia, and execute on its U.S. commercialization and E.U. approval.
“Our nominees will examine all strategic options available to maximize value for Vivus’ shareholders, including a value-creating partnership for Qsymia, and judiciously cutting the Company’s SG&A expenses, which have grown to roughly $50 million in the fourth quarter of 2012. Despite this profligate spending, net product revenue was under $2 million in that same quarter. Qsymia has great potential, but not under this Board. We intend to cut wasteful spending in order to focus Vivus’ financial and human capital on the commercialization of Qsymia.
“Vivus’ shareholders are currently represented by an insular board with excessive management representation. This is the same board that has refused numerous requests by First Manhattan to schedule its annual meeting by June 30, 2013, thereby delaying the right of Vivus’ shareholders to have their critical say in the future of their investment. Once again, First Manhattan calls on Vivus to immediately set the record date and schedule its annual meeting for no later than June 30, 2013, which would already be more than one year since its last annual meeting in 2012. On behalf of all shareholders, we demand that the Board let the owners of the Company know why it is delaying their right to elect directors at an annual meeting.”
First Manhattan and its nominees believe that substantial value can be unlocked at Vivus with the right strategy and leadership. First Manhattan has proposed a slate of highly qualified nominees for election to Vivus’ Board. At the time we first nominated our candidates on March 7, 2013, Vivus had only six directors on its Board. First Manhattan reserves the right to nominate additional candidates depending on the number of Vivus’ nominees. Biographies of First Manhattan’s nominees, including two alternate nominees, follow:
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.
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.