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 has filed litigation against Vivus in the Court of Chancery of the State of Delaware. In the lawsuit, FMC seeks declaratory and injunctive relief to remedy the illegal attempt of the incumbent directors of Vivus to entrench themselves in office by adjourning the Annual Meeting of Stockholders and denying stockholders their right to vote on the future of the company.
Specifically, FMC asks the Court for an Order granting the following relief:
- Enjoining Vivus and its representatives from taking any actions to solicit proxies or votes for the Annual Meeting;
- Directing that the inspector of elections immediately certify the results of the election of directors based upon the votes present and prepared to be voted at the noticed July 15 Annual Meeting; and
- Enjoining the incumbent directors of Vivus from taking any actions as directors of the Company, including any further actions in connection with the Annual Meeting.
“We have taken legal action against Vivus and the sitting board after their egregious attempt to disenfranchise Vivus’ stockholders,” said Sam Colin, Senior Managing Director at FMC. “Vivus didn’t like what it saw on the scoreboard so it decided to move the goal post. The Vivus directors need to be held accountable for their actions, so we are seeking immediate injunctive relief.”
You can find additional details regarding our nominees’ strategic plan for value creation at http://www.ourmaterials.com/VVUS/. However, 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.