UPDATE 3-First Manhattan sues Vivus for shareholder meeting delay

Tue Jul 16, 2013 7:56pm EDT

By Bill Berkrot and Jessica Toonkel

July 16 (Reuters) - A proxy battle between Vivus Inc and First Manhattan Co, its top investor, intensified on Tuesday when FMC filed a lawsuit saying the directors of the obesity drugmaker illegally delayed its shareholder meeting to keep themselves in office.

In the lawsuit filed in the Delaware Court of Chancery, First Manhattan said it had the votes to win the proxy fight and asked the court to stop Vivus and its representatives from soliciting proxies or votes for the annual meeting, which will now be on July 18.

It also wants the inspector of elections to immediately certify results of the election of directors based on votes at the originally scheduled July 15 annual meeting. That would mean votes arriving after July 15 would not be counted.

Vivus, however, alleged late on Tuesday that a paid advisor of FMC made "false and misleading" statements to retail shareholders through a telephone or "robo-call" campaign.

Vivus said a large number of votes from the retail investors were cast by proxy on July 12, after over a week of such calls.

The company said it had delayed the annual meeting to ensure retail investors have sufficient time to consider "accurate information and make informed decisions."

The company said the calls conveyed that proxy firm Institutional Shareholder Services (ISS) urged Vivus shareholders to vote for all nine of FMC's nominees to the board.

ISS said on July 5 that it had backed three of the proposed FMC nominees.

"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," Vivus said in a statement.

FMC said on Tuesday it continues to seek a settlement with the Vivus board. It added that if all nine of its director nominees were to be elected, it would invite three current Vivus directors to join the new board.

A settlement appeared possible over the weekend, when Vivus said it would invite three of First Manhattan's proposed directors to join its board.

Settlement discussions by telephone went deep into Saturday night and negotiations resumed in person on Sunday, according to a source familiar with the proceedings. But Vivus refused to cede control of the board to First Manhattan, the source said. Settlement talks broke down after Vivus moved to delay the shareholder meeting.

FMC said that on Sunday, it was awaiting a response from Vivus to a settlement proposal. "Instead, the Vivus board of directors terminated settlement discussions by responding with a press release stating its decision to adjourn the (annual shareholders) meeting, effectively denying shareholders their right to vote on the future of the company."

Vivus decided on Monday to postpone its shareholder meeting, saying First Manhattan's advisers had made false statements to shareholders.

"The reason for the adjournment was to provide our stockholders the additional time necessary to consider accurate information and make informed voting decisions that are not tainted by the false and misleading statements made by FMC," Vivus President Peter Tam said in an emailed statement.

In the complaint filed with the Delaware court, FMC said, "as of Sunday, July 14, 2013, FMC was poised to deliver sufficient votes at the annual meeting to replace the incumbent directors with its nominees."

"We have taken legal action against Vivus and the sitting board after their egregious attempt to disenfranchise Vivus' stockholders," Sam Colin, senior managing director at First Manhattan and a proposed Vivus director, said in a statement. "Vivus didn't like what it saw on the scoreboard so it decided to move the goal post."

First Manhattan, which holds about 9.9 percent of Vivus shares and has accused the company of bungling the launch and marketing of its Qsymia diet pill, has put up a full slate of nine proposed directors to try to gain control of the board. .

FMC even took the unusual step earlier this month of announcing the name of a former AstraZeneca senior executive, Anthony Zook, that it planned to install as the next Vivus chief executive should it prevail in the proxy battle.

Vivus shares closed at $14.40 on Nasdaq on Tuesday.

A couple walks along the rough surf during sunset at Oahu's North Shore, December 26, 2013. REUTERS/Kevin Lamarque

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