SCHEDULE 14A
Proxy 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
[X ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-12
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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[X] No fee required.
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[ ] Fee paid previously with preliminary materials.
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previously. Identify the previous filing by registration statement
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Keith Meister will deliver the attached speech at the VISX Annual Meeting
on May 23, 2003. This speech may also be issued to the media.
Good Morning
My name is Keith Meister and I serve as a Senior Investment Analyst for
companies affiliated with Carl Icahn. Carl Icahn is the largest shareholder of
VISX common stock. Mr. Icahn owns over 6 million shares representing in excess
of 11% of the shares outstanding. I am here today as Mr. Icahn's nominee to the
Board of Directors. Thank you for the forum.
As you may know, this winter Carl Icahn approached VISX management and
asked that they include an Icahn nominee on this year 's slate of seven
directors. I repeat, one nominee to a board of at least seven.
Ms. Davila, VISX's CEO, said no, and began to use company funds,
shareholder's money, to defend against an 11% shareholder (the Company's
largest) having proportionate board representation.
By way of background, Mr. Icahn began buying stock in VISX during the
summer of 2000, and has held his shares for over two-and-a-half years. Mr. Icahn
invested well over $100 million in the company, $100 million of his own money.
And today he simply seeks one board seat for his nominee.
Why did he buy the stock in 2000? For all the reasons that still hold true
today: VISX is a great company, with innovative industry-leading technology, a
great business model with tremendous operating leverage, an market-leading
installed customer base, strong patents and revolutionary new technology that
management believes will receive FDA approval in June.
During the time that Mr. Icahn has held his stock, VISX shareholders have
not fared well. Meanwhile, management has been enriched. Today, over 8 million
options representing approximately 14% of the company, have been granted to
employees. Specifically, almost 2 million options have been granted to Ms.
Davila. Upon Ms. Davila's promotion from president to CEO, she was granted
800,000 options. During management's recent visit with Institutional Shareholder
Services (ISS) to solicit support for their slate of directors, ISS deemed this
grant to Ms. Davila to be excessive.
We are deeply gratified that ISS deemed this option grant to be excessive.
Hopefully, in the future, this board will remember that fact when considering
management compensation.
More importantly, we are here today because we believe that VISX ultimately
needs to be sold to a larger health-care or technology company with consumer
marketing experience and know-how in order for VISX shareholders to maximize
their return. In our opinion, we believe that such an organization will enable
laser vision correction surgery to gain awareness, acceptance and increased
mainstream support, and thus drive procedure volumes.
Specifically, today, as VISX is on the precipice of technological
innovation with its CustomVue product, we believe cash flows could soar.
Assuming procedure fees increase from $100 to $200 and initial procedure
conversions of up to 50% occur, as management has indicated, VISX's cash flows
should increase significantly. All this would occur despite continued stagnant
procedure volumes of around 1 million.
When we bought our stock in 2000, it was anticipated that LVC procedure
volume would reach 2, 3, 4 million a year by this point. With the new technology
in hand, we believe a larger health-care company with marketing know-how and
experience can finally capitalize on this promise of mainstream consumer
adoption for laser vision correction. As this occurs, VISX cash flows would
increase further.
We are pleased by management's recent concession to implement a "chewable
pill". This pill, although not a perfect solution, allows a cash bidder willing
to pay at least the current market price for VISX stock to acquire that stock
without triggering the poison pill, so long as at least half of the shareholders
tender, unless holders of a majority of the VISX shares elect to keep the pill
in place.
We believe that the adoption of this feature was made in response to our
proxy contests and represents a real victory for shareholder interests. While
this concession likely gained ISS's support for management and insured their
victory in this proxy solicitation, we still believe that this is a step in the
right direction and we believe that potential bidders will be encouraged by the
existence of this provision.
We still firmly believe that shareholders are best served when large
shareholders have representation on boards of directors. Nonetheless, as a
result of this proxy contest, VISX shareholders are in a better position today
than they were three months ago. In addition to the "chewable pill", management
and the board have been warned that the institutional shareholder community will
not longer sit quietly and allow excessive compensation at the highest levels of
corporations while shareholders suffer.
VISX is a great company with leading technology and a proven business
model. Yet, we believe that having a shareholder representative on the board of
VISX will help promote potential tender offers and other M&A activity that will
ultimately yield the highest return for VISX's shareholders. As such, we urge
you to vote for us today.
Finally, Mr. Icahn has asked that I pass along his view that it is a sad
commentary on United States corporations in general, and on VISX in particular,
that only in the context of an arduous proxy battle was the adoption of the
"chewable pill" feature implemented. Mr. Icahn believes that it should not take
a proxy contest for shareholders to secure from entrenched management something
that should always be within their own absolute control, the right to decide for
themselves whether to accept a tender offer for any and all of their stock. He
is pleased that we were able to obtain this victory at VISX. In the future, Mr.
Icahn intends to continue to object to poison pills and other devices that he
believes limit shareholder rights and he will seek to cause other companies to
implement a "chewable pill" provision in their poison pills. He urges other
large shareholders to do the same.
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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.