SCHEDULE 14A
Consent Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934 (Amendment No. __)
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [x]
Check the appropriate box:
| [ ] | Preliminary Proxy Statement |
| [ ] | Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
| [ ] | Definitive Proxy Statement |
| [ ] | Definitive Additional Materials |
| [X] | Soliciting Material Under Rule 14a-12 |
VIVUS, Inc.
(Name of Registrant as Specified In Its Charter)
First Manhattan Co.
First Health, L.P.
First Health Limited
First Health Associates, L.P.
First BioMed Management Associates, LLC
First BioMed, L.P.
First BioMed Portfolio, L.P.
Michael James Astrue
Jon C. Biro
Samuel F. Colin
Johannes J.P. Kastelein
David York Norton
Herman Rosenman
Rolf Bass
Melvin L. Keating
(Name of Person(s) Filing Consent Statement, if other than the Registrant)
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On May 1, 2013, First Manhattan Co. and its affiliates (collectively, "First Manhattan") issued a press release in response to an announcement by VIVUS, Inc. ("Vivus") that it had added a new director to its board of directors (the "Board"). The press release expressed First Manhattan's concern that the addition of the new director is an attempt by the incumbent Board to retain control, and stated First Manhattan's belief that the entire Board must be replaced in order to restore stockholder value at Vivus. In addition, the press release included a biography of each of the individuals nominated by First Manhattan for election to the Board (each a "Nominee" and together, the "Nominees") and expressed First Manhattan's belief that each such Nominee is highly qualified. A copy of the press release is attached as Exhibit 1.
Also on May 1, 2013, First Manhattan issued a press release announcing the filing of its preliminary proxy materials with the Securities and Exchange Commission regarding the election of its Nominees to the Board at Vivus' 2013 annual meeting of stockholders. The press release also expressed First Manhattan's belief that Qsymia has blockbuster potential and its continued concern regarding the Board's ability to successfully commercialize Qsymia. A copy of the press release is attached as Exhibit 2.