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.
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