FMC's "Win at all Costs" Campaign Infringes on Stockholders' Rights to Make Informed Voting Decisions
VIVUS Urges Stockholders to Vote FOR the Company's Nominees on the GOLD Proxy Card
MOUNTAIN VIEW, Calif., July 16, 2013 (GLOBE NEWSWIRE) -- VIVUS, Inc. (Nasdaq:VVUS) (the "Company" or "VIVUS"), a pharmaceutical company commercializing and developing innovative, next-generation therapies to address unmet needs in obesity and sexual health, today issued the following statement in connection with the Company's reconvened Annual Meeting of Stockholders, scheduled for July 18, 2013.
Late last week the VIVUS Board of Directors was informed by a retail stockholder that paid advisors of First Manhattan Co. (FMC) had made false and misleading statements to VIVUS stockholders through a telephone, or "robo-call," campaign. Specifically, a paid advisor of FMC engaged in this "robo-call" campaign, targeting retail stockholders, made statements to mislead such stockholders into believing that Institutional Shareholder Services (ISS) had recommended that stockholders vote for all of FMC's director nominees. THIS IS FALSE. In fact, ISS recommended that stockholders vote for only three of FMC's nine director nominees – "dissident nominees Denner, Astrue, and Norton."  Furthermore, ISS acknowledged the validity of VIVUS's concerns about a wholesale change at the Board level, noting that "...a full change-in-control can raise the risk of unintended consequences and operational disruptions."  Permission to use quotations neither sought nor obtained.
The VIVUS Board was particularly alarmed by this campaign of misleading statements because a large number of votes from the Company's retail stockholders were cast by proxy on Friday, July 12, 2013, after what the Company believes was over a week of these false and misleading robo-calls being made to stockholders. In addition, we believe that FMC purposefully failed to file the required disclosures regarding these statements with the U.S. Securities and Exchange Commission (the "SEC") in an attempt to hide actions that violate the SEC's proxy solicitation rules. We have provided a copy of the voicemail in question to the SEC and have also requested that the SEC require FMC to issue corrective disclosure so that stockholders can make their voting decisions based on accurate information.