SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934 (Amendment No. __)
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VISX, Incorporated
(Name of Registrant as Specified In Its Charter)
Carl C. Icahn, Barberry Corp. and High River Limited Partnership
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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On May 15, 2003, Carl C. Icahn issued a press release attached hereto as
Exhibit A and is mailing it out to VISX shareholders.
Exhibit A
FOR IMMEDIATE RELEASE
Contact: Susan Gordon
212-702-4309
ICAHN CONTINUES TO URGE VISX SHAREHOLDERS TO VOTE FOR KEITH MEISTER
New York, New York. May 15, 2003. Having reviewed the recently issued
report by Institutional Shareholder Services (ISS) regarding VISX, Inc., Carl C.
Icahn made the following observations:
While I am disappointed with the ultimate decision of Institutional
Shareholder Services not to recommend a vote for Mr. Meister to the VISX board,
I was gratified to learn from the report by ISS that VISX has now indicated to
ISS that "at its next board meeting, it will submit a proposal to amend its
poison pill to include a permanent chewable provision. The provision will
require the company, in the event of a bonafide offer, to either redeem the pill
or put it to a shareholder vote within 120 days of such an offer". ISS noted
that "a chewable feature allow[s] shareholders to redeem the pill in the event
of a takeover offer". Although the actual text of the proposal is not currently
available, I believe that such a provision, if properly implemented, will
benefit all shareholders and will be a great step forward at VISX.
Nonetheless, I continue to believe that VISX shareholders would be
benefited by having Mr. Meister on the Board. Mr. Meister, a Harvard graduate,
has had significant investment banking and business experience. Currently, he
serves in the capacity of senior investment analyst with one of my affiliates.
Mr. Meister would be the only shareholder nominee on the VISX Board. While VISX
seems intent on resisting this, I believe that shareholders will find that
having Mr. Meister on the Board will be a benefit to shareholders and their
interests.
I was not surprised to read in the ISS report that "[t]he initial grant of
800,000 options to Ms. Davila does appear excessive." While long time VISX
shareholders have suffered declines in the value of their VISX stock over the
past few years, Ms. Davila has had the benefit of substantial option grants. As
is reflected in the Company's proxy statement, as of December 31, 2002, options
and rights to purchase a total of 8,377,957 shares of VISX stock (approximately
14% of the Company on a fully diluted basis) were outstanding under the
Company's equity compensation plans. For the years 2000, 2001 and 2002,
Elizabeth Davila and the four other most highly compensated executive officers
of VISX were granted options to purchase 1,895,000 shares of VISX stock
(approximately 3.2% of the Company on a fully diluted basis). Ms. Davila alone
was granted options to purchase 1,350,000 shares during that 3-year period. And
this doesn't even take into account the options granted to Board members during
that 3-year period. Time has not been so kind to VISX shareholders. During the
same 3-year period, VISX stock has gone from closing at $52.09 per share on
January 3, 2000 to closing at $9.58 per share on December 31, 2002. I believe
that having Mr. Meister on the VISX Board, where he would have the opportunity
to react to compensation awards to management, would benefit all shareholders.
VISX has indicated that, although not certain, it expects to receive FDA
approval of CustomVue [TM] in the second quarter of 2003. Indeed, in its April
18, 2003 letter to shareholders, the Company stated its belief that "CustomVue
[TM] will provide us with an extraordinary opportunity to gain incremental
revenue and profit from VISX procedures as well as reinvigorate demand for laser
correction". I believe that the
"extraordinary opportunity" to gain incremental profit will be viewed as a
tantalizing opportunity for the right kind of buyer. The most likely buyers, in
my opinion, should be large companies in the healthcare industry with
significant expertise in consumer oriented marketing and the capital resources
necessary to grow the market for laser vision correction and thereby achieve
even further increases to incremental operating profit. I do not believe that
VISX alone, without combining with a larger, more well capitalized company, can
take advantage of these markets. I believe that Mr. Meister will be a strong
advocate for the interest of shareholders with respect to any proposal for a
strategic alternative or any other matters coming before the Board. In my
opinion, without Mr. Meister on the Board, an important catalyst for such a
transaction would be gone. I also continue to believe that individuals nominated
by shareholders are likely to be more independent of management and therefore be
in a better position to represent the interests of shareholders.
I urge VISX shareholders to vote for Mr. Meister.
NOTE: Permission to use quotations from ISS report neither sought nor
obtained.
SHAREHOLDERS OF VISX ARE ADVISED TO READ THE DEFINITIVE PROXY STATEMENT
FILED BY MR. ICAHN'S AFFILIATES IN CONNECTION WITH THEIR SOLICITATION OF PROXIES
FROM VISX SHAREHOLDERS. Shareholders of VISX and other interested parties may
obtain, free of charge, copies of the Definitive Proxy Statement and any other
documents filed by Mr. Icahn and his affiliates with the SEC, at the SEC's
Internet website at www.sec.gov. The Definitive Proxy Statement was also mailed
to shareholders.