The battle for control of Vivus (VVUS) has been in over-drive all weekend. Late Sunday evening, a press release was issued by Vivus stating that some actions of First Manhattan, the 10% stakeholder trying to take over the company, were in violation of rules of The U.S. Securities Exchange Commission (the SEC).
Vivus urged shareholders to vote the GOLD card for keeping the existing Board in place. Taking things a step further, Vivus is postponing the annual shareholder meeting by moving it to Thursday, July 18th.
Vivus... Informed the U.S. Securities and Exchange Commission (SEC), and provided supporting documentation, that paid advisors of First Manhattan Co. (FMC) made false and misleading statements to VIVUS stockholders regarding the recommendation of Institutional Shareholder Services (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.
This stunning turn of events comes on the heels of a compromise offer where the current Vivus Board of Directors invited three of the FMC Board nominees to join the Vivus board. This vote is assumed to be very close given the actions of both sides this week. In its latest press release, Vivus appealed to stockholders to vote no matter what and stressed that every vote counts. They went so far as to ask shareholders to call in their vote or use the Internet if need be.
The vote of every VIVUS stockholder is extremely important, no matter how many or how few shares they own. Whether or not VIVUS stockholders plan to attend the Annual Meeting, they have an opportunity to protect their investment in VIVUS by voting the GOLD proxy card. Since time is short, the Company asks that stockholders please vote by telephone or Internet according to the instructions on the GOLD proxy card. Even if stockholders have already voted using the whiteproxy card, they have the right to change their vote to the GOLD proxy card and support VIVUS's director nominees.
For existing shareholders, this could mean added volatility to the stock over the coming days. For those looking to play the short-term action, you are likely looking at the flip of a coin as to whether the equity moves up or down. For First Manhattan executives, the change in the meeting likely means extending the bookings at hotels, and a long week of their own meeting. Perhaps getting both sides in one city will facilitate a deal.
Shifting the date of an annual meeting is not unheard of. This is now a game of hardball. The 11th hour switch was likely strategic. The SEC violations are serious if true. There is a decent chance, if a settlement is not reached between the two sides, that the meeting could shift yet again, causing shareholders even more frustration. Anticipate a response from First Manhattan at some point very soon. As a final note, should this become a legal battle with injunctions, etc., expect a sharp reaction in the share price. Stay tuned.