First Manhattan Files Litigation Against Vivus For Delaying Stockholders Meeting

(RTTNews) - First Manhattan Co. or FMC, an owner-managed and operated investment advisory firm and the owner of approximately 9.9 percent of the outstanding shares of Vivus, Inc. (VVUS), announced Tuesday 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 certain 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…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," said Sam Colin, Senior Managing Director at FMC.

On July 14, 2013, Vivus announced that it has informed the U.S. Securities and Exchange Commission or SEC, and provided supporting documentation, that paid advisors of First Manhattan Co. made false and misleading statements to Vivus stockholders regarding the recommendation of Institutional Shareholder Services or ISS in connection with the Company's 2013 Annual Meeting of Stockholders. Furthermore, Vivus reported to the SEC that FMC did not file the required disclosures with the SEC regarding these statements. Vivus has requested that the SEC require FMC to take corrective actions that are adequate to address the level and extent of the false and misleading statements made by FMC.

Vivus also said on Sunday that in light of these developments and the expected time required for FMC to adequately remedy these actions, and for Vivus stockholders to be fully informed of FMC's misleading activities, the Board of Directors of the company has directed that the Annual Meeting of Stockholders be adjourned from Monday, July 15, 2013 to Thursday, July 18, 2013.

Vivus said on Sunday that it believed that its stockholders are entitled to have sufficient time to consider accurate information and make informed voting decisions that are not tainted by the false and misleading statements made by FMC.