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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 issued the following statement in response to Vivus’ adjourning their Annual Meeting of Stockholders:
“We are profoundly disappointed by this delaying tactic by the entrenched board. Vivus’ stated reason to adjourn the vote is just a pretense to buy time in an attempt to improperly influence the election, in our view. We believe this attack on the rights of Vivus shareholders is a desperate action by desperate people.
“FMC is acutely aware of its disclosure obligations and strongly disagrees with Vivus’ recent comments. Nothing that is required to be filed with the U.S. Securities and Exchange Commission has not already been filed. Unlike Vivus’ sitting board and its CEO, all of FMC’s filed materials have been clear on how Egan Jones and ISS have recognized the need for change at Vivus. Egan Jones recommends that Vivus shareholders vote for all nine of FMC’s nominees on the white proxy card and ISS recommends a vote for three of FMC’s nominees on the white proxy card. ISS recommends that shareholders do not vote on Vivus’ gold proxy card.
“Over the past several days and as late as yesterday evening, we have been negotiating with Vivus in good faith to achieve a settlement that would be beneficial to all shareholders. Instead of continuing these negotiations, Vivus’ board and CEO have resorted to tactics that we believe are simply aimed at preserving their entrenched position.
“Since the beginning of the proxy contest we have been telling fellow shareholders of our belief that the sitting board has exercised poor judgment and has put their interests ahead of those of the shareholders. Now, the Vivus board has acted with a strong-armed tactic that proves our case and reinforces our call for a much needed overhaul. Disenfranchising shareholders approximately twelve hours before a critical vote on the future of their company is inexcusable because it violates the very concept of a shareholder democracy.