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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))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to sec.240.14a-12
VISX, INCORPORATED
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(Name of Registrant as Specified In Its Charter)
CARL C. ICAHN, BARBERRY CORP. AND HIGH RIVER LIMITED PARTNERSHIP
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (check the appropriate box):
[X] No fee required
[ ] Fee computed on table below per Exchange Act Rule 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
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(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) Date Filed:
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2001 ANNUAL MEETING OF STOCKHOLDERS
OF
VISX, INCORPORATED
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PROXY STATEMENT
OF
BARBERRY CORP.
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To Our Fellow VISX Stockholders:
This Proxy Statement and the accompanying WHITE proxy card are being
furnished to stockholders ("Stockholders") of VISX, Incorporated ("VISX" or the
"Company") in connection with the solicitation of proxies by Barberry Corp.
("Barberry"), a Delaware corporation controlled by Carl C. Icahn, to be used at
the 2001 Annual Meeting (the "Annual Meeting"), of Stockholders of VISX which is
scheduled to be held at 8:00 a.m. local time on May 4, 2001 at The Embassy
Suites Santa Clara/Silicon Valley location at 2885 Lakeside Drive, Santa Clara,
CA 95054, and at any adjournments, postponements or continuations thereof. This
Proxy Statement and the WHITE proxy card are first being furnished to
Stockholders on or about April 17, 2001.
At the Annual Meeting, Barberry will seek to elect to the Board of
Directors of VISX, a slate of five (5) nominees, including Mr. Icahn, named
below under "Election of Directors". Each of the nominees (each a "Nominee" and,
collectively, the "Nominees") has been selected by Mr. Icahn and has consented,
if elected, to serve as a director. If the Nominees are elected, Mr. Icahn will
propose that the new board, subject to their fiduciary duties, consider the
following immediate actions:
1. CONDUCT AN OPEN AUCTION TO SELL THE COMPANY WITH A MINIMUM ACCEPTABLE
BID OF $32 PER SHARE.
- set up a data room so that all qualified buyers have equal access to
information;
- set a date certain for an auction; and
- require management to submit for Stockholder approval the best offer at
or above $32 per share.
While Mr. Icahn has no present plans to bid in the auction, he would
not be precluded from doing so.
In selecting a minimum acceptable bid of $32 per share, Mr. Icahn does
not intend to be providing a valuation of the Company. However, in
selecting that minimum acceptable bid, Mr. Icahn studied and analyzed the
recent acquisition of VISX's competitor, Summit Autonomous Inc., by Alcon
Holdings Inc. He also studied and analyzed the market valuation of
Allergan, a company in the ophthalmic field, and considered that according
to VISX's 10-K, VISX is a "worldwide leader in the development of
proprietary technologies and systems for laser vision correction." However,
it should be pointed out that Summit, Allergan and VISX have differences in
revenue sources, product mix and financial resources, among others, that
affect their comparability. While a vote for his Nominees is not a vote to
sell the Company, Mr. Icahn will strongly urge that his Nominees for the
Board of Directors of VISX consider, subject to the exercise of their
fiduciary duties, his recommendation to vote in favor of the sale of the
Company at a minimum price of $32 per share. It is expected that
Stockholders will be required to affirmatively approve any sale of the
Company.
There can, of course, be no assurances that the auction will achieve
the desired result. Stockholders who do not wish to wait until a successful
completion of the auction may wish to sell their shares in a tender offer
as proposed in the next paragraph.
2. DOUBLE THE COMPANY'S RECENTLY ANNOUNCED NEW SHARE BUYBACK PROGRAM FROM
10 TO 20 MILLION SHARES TO BE EFFECTED THROUGH AN IMMEDIATE ISSUER
TENDER OFFER BY VISX AT $25 PER SHARE RATHER THAN WAIT TO MAKE OPEN
MARKET PURCHASES OVER A POTENTIALLY LONG TIME PERIOD. If the Company is
unable to obtain outside financing to purchase the additional 10 million
shares, Mr. Icahn would lend the Company
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sufficient funds to do so on commercially reasonable terms. Furthermore,
neither Mr. Icahn nor any of his affiliates would sell shares in the
tender offer.
As the success of an auction for the Company cannot be assured, in the
event no sale, merger or other business combination occurs, Mr. Icahn would
propose that the new board consider, subject to their fiduciary duties:
- FORMING AN EXECUTIVE SEARCH COMMITTEE TO REVIEW EXISTING MANAGEMENT AND
CONSIDER TOP-FLIGHT EXECUTIVE CANDIDATES. Mr. Icahn believes that VISX's
management made a number of bad decisions, which Mr. Icahn considers to
have turned out less than beneficial to the Company. These include
allowing VISX's relationship with TLC Laser Eye Centers ("TLC"), the
Company's second largest customer, to deteriorate to the point where TLC
announced that it has adopted technology provided by Alcon and not VISX
as its primary platform in its refractive centers. In addition, Mr. Icahn
believes that management's decision to cut procedure fees in February
2000 from $250 to $100 per procedure is an important contributing factor
toward the decline in VISX earnings for the first quarter of 2001 as
compared with the first quarter of 2000. Finally, Mr. Icahn disagrees
with management's decision to settle a patent dispute by licensing VISX's
proprietary technology to Bausch & Lomb, a much larger company with
substantial financial resources and, therefore, a potential major
competitor. Management has not disclosed the license terms.
If the Nominees are elected, Mr. Icahn and his affiliates may make
recommendations regarding executive candidates to be considered.
Mr. Icahn, Barberry and the other participants in this proxy solicitation
have no interest in VISX other than as Stockholders.
THE NOMINEES ARE COMMITTED TO ACTING IN THE BEST INTEREST OF THE
STOCKHOLDERS. WE BELIEVE THAT YOUR VOICE IN THE FUTURE OF VISX CAN BEST BE
EXPRESSED THROUGH THE ELECTION OF THE NOMINEES. ACCORDINGLY, WE URGE YOU TO VOTE
YOUR WHITE PROXY CARD FOR THE NOMINEES.
IF YOUR SHARES ARE HELD IN THE NAME OF A BROKERAGE FIRM, BANK, BANK NOMINEE
OR OTHER INSTITUTION ON THE RECORD DATE, ONLY IT CAN VOTE SUCH SHARES AND ONLY
UPON RECEIPT OF YOUR SPECIFIC INSTRUCTIONS ACCORDINGLY, PLEASE CONTACT THE
PERSON RESPONSIBLE FOR YOUR ACCOUNT AND INSTRUCT THAT PERSON TO EXECUTE ON YOUR
BEHALF THE WHITE PROXY CARD AS SOON AS POSSIBLE.
IMPORTANT
The election of the Nominees requires the affirmative vote of a plurality
of the votes cast, assuming a quorum is present or otherwise represented at the
Annual Meeting. As a result, your vote is extremely important in deciding the
future of the Company. We urge you to mark, sign, date and return the enclosed
WHITE proxy card to vote FOR the election of the Nominees.
WE URGE YOU NOT TO SIGN ANY PROXY CARD SENT TO YOU BY VISX. IF YOU HAVE
ALREADY DONE SO, YOU MAY REVOKE YOUR PROXY BY DELIVERING A LATER-DATED WHITE
PROXY CARD IN THE ENCLOSED POSTAGE-PREPAID ENVELOPE, OR BY VOTING IN PERSON AT
THE ANNUAL MEETING. SEE "VOTING PROCEDURES" AND "PROXY PROCEDURES" BELOW.
Only holders of record of VISX's voting securities as of the close of
business on March 19, 2001 (the "Record Date") are entitled to notice of, and to
attend and to vote at the Annual Meeting and any adjournments or postponements
thereof. According to the proxy statement of VISX filed with the Securities and
Exchange Commission ("VISX's Proxy Statement"), as of the Record Date, there
were outstanding approximately 57,566,531 shares of common stock, par value $.01
per share (the "Common Stock").
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Stockholders of record at the close of business on the Record Date will be
entitled to one vote at the Annual Meeting for each share of Common Stock of
VISX held on the Record Date.
As of the Record Date, Mr. Icahn, Barberry and its affiliates beneficially
owned an aggregate of 6,020,005 shares of Common Stock, representing
approximately 10.5% of the outstanding shares of Common Stock. Barberry and its
affiliates intend to vote such shares FOR the election of the Nominees.
VOTE FOR THE NOMINEES BY RETURNING YOUR COMPLETED WHITE PROXY TODAY.
PARTICIPANTS IN SOLICITATION OF PROXIES
In addition to the Nominees, who are: Messrs: Becker, Glass, Icahn, Waksal
and Zegger, the participants (the "Participants") in the solicitation of proxies
are Barberry and its affiliate High River Limited Partnership ("High River"),
both of which entities are owned directly or indirectly by Mr. Icahn, and Gail
Golden, the spouse of Mr. Icahn.
High River is a Delaware limited partnership, principally engaged in the
business of investing in securities. High River's general partner is Barberry.
Barberry is primarily engaged in the business of investing in securities. The
principal business address of each of High River and Barberry 1 Wall Street
Court, 9th floor, New York, New York 10005.
Mr. Icahn's present principal occupation is acting as a Director and the
Chairman of the Board of Starfire Holding Corporation, a Delaware corporation
("Starfire"), and as the Chairman of the Board and Director of various
subsidiaries and affiliates of Starfire. Mr. Icahn's principal business address
is c/o Icahn Associates Corp., 767 Fifth Avenue, 47th Floor, New York, New York
10153.
Gail Golden, age 51, has served as Vice Chairman of the Board of Directors
of Lowestfare.com, Inc. since August 1998 and Vice Chairman of Lowestfare.com,
LLC, an internet travel reservations company since February 1999. From August
1998 to November 1999, Ms. Golden served as President of Lowestfare.com, Inc.,
and February 1999 to November 1999, as President of Lowestfare.com, LLC. From
August 1995 to January 1999, Ms. Golden served as the Chief Executive Officer of
Lowestfare.com LLC. Ms. Golden has served as Chief Executive Officer and
President of Global Travel Marketing, a telephone travel reservations company,
since June 1995. Ms. Golden has served as Vice President of Administration of
Icahn Associates Corp., a privately owned holding company, since May 1985. Since
1978, Ms. Golden has served in various capacities at Icahn & Co., Inc., a
registered broker-dealer and a member of the National Association of Securities
Dealers, including Director of Public and Investor Relations and Director of
Human Resources. Ms. Golden also serves in various executive capacities for
privately-owned entities controlled by Mr. Icahn. Ms. Golden is a Director and
Vice-President and Secretary of the Icahn Charitable Foundation, Director
Vice-President and Secretary of the Icahn Family Foundation and Director and
Secretary of the Foundation for a Greater Opportunity. Ms. Golden's principal
business address is c/o Icahn Associates Corp., 767 Fifth Avenue, 47th Floor,
New York, New York 10153.
Mr. Icahn, through the companies he owns, may be deemed to be the indirect
beneficial owner of 6,020,005 shares of the Common Stock, which represents
approximately 10.5% of outstanding shares of Common Stock.
High River is the direct beneficial owner of 3,245,505 shares of the Common
Stock. Barberry is the direct beneficial owner of 2,774,500 shares of the Common
Stock and, in addition, as the sole general partner of High River, Barberry may
be deemed to be the indirect beneficial owner of 3,245,505 shares of the Common
Stock. Gail Golden is the direct beneficial owner of 1,990 shares of the Common
Stock. Ms. Golden purchased such shares with her personal funds.
The purchase of the 6,020,005 shares of Common Stock was made with working
capital of Barberry and High River and pursuant to margin accounts in the
regular course of business. As of April 16, 2001, Barberry has no Common Stock
in any of its margin accounts and High River has a certain portion of the Common
Stock in a margin account that has a positive balance.
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All transactions in the securities of VISX effected within the past 2 years
by High River, Barberry, and other affiliates of Mr. Icahn are contained in
Appendix I attached hereto.
ELECTION OF DIRECTORS
According to VISX's proxy statement in connection with the 2001 Annual
Meeting, VISX's management is going to nominate five (5) candidates for the
election as directors. Barberry proposes that VISX Stockholders elect the
Nominees to be nominated by Barberry as the Directors of VISX at the Annual
Meeting. Each Nominee, if elected, would hold office until the 2002 Annual
Meeting of Stockholders and until a successor has been elected and qualified.
Although Barberry does not anticipate that any of the persons named below will
be unable or unwilling to stand for election, in the event of such occurrence,
proxies may be voted for a substitute designated by Barberry.
Background information about the Nominees is set forth below. The Nominees
are not receiving any compensation from Mr. Icahn, Barberry or any of their
affiliates in connection with this proxy solicitation. See Appendix I for
additional information about the Nominees, including their ownership, purchase
and sale of securities issued by VISX.
JUDGE JEROME M. BECKER, age 65, serves as Chairman of the New York State
Housing Finance Agency, the New York State Affordable Housing Corporation, the
New York State Project Finance Agency and the New York State Municipal Bond
Bank. Judge Becker also serves as Vice-Chairman of the State of New York
Mortgage Agency. Judge Becker is a Director of the New York State Mortgage Loan
Enforcement and Administration Corporation, Director of the New York State
Housing Trust Fund Corporation and Member of the Homeless Housing Assistance
Corporation. He is also a Brigadier General in the New York Guard. Judge Becker
has formerly served as a Family Court Judge of the State of New York, and he has
also formerly served as an Acting Criminal Court Judge of the New York City
Criminal Court. He also served as Special District Attorney of Kings County
(Brooklyn), Chairman of the New York City Conditional Release Commission
(Parole), Chairman of the New York City Youth Board, Commissioner of the New
York City Human Rights Commission and Member of the New York City Board of
Correction. Judge Becker is a member of the New York State Bar having been
admitted in 1962 and since has become a member of the Washington DC, Colorado
and Pennsylvania Bars. He is also admitted to various federal courts including
the United States Supreme Court. Judge Becker has also practiced law privately
having represented domestic and international real estate interests. Mr. Becker
currently serves as Director of Stratosphere Corporation.
RUSSELL D. GLASS Since April 1998, Mr. Glass, age 38, has been President
and Chief Investment Officer of Icahn Associates Corp., a diversified investment
firm. Since August 1998 he has also served as Vice-Chairman of Lowestfare.com,
LLC, an internet travel reservations company. Since April 2000 Mr. Glass has
also served as the Chief Executive Officer of Cadus Pharmaceutical Corporation,
a firm which holds various biotechnology patents. Previously, Mr. Glass had been
a partner in Relational Investors LLC, from 1996 to 1998, and in Premier
Partners Inc., from 1988 to 1996, firms engaged in investment research and
management. From 1984 to 1986 he served as an investment banker with Kidder,
Peabody & Co. Mr. Glass served as a Director of Automated Travel Systems, Inc.,
a software development firm. He currently serves as a Director of Axiom
Biotechnologies, Inc., a pharmacology profiling company; Cadus Pharmaceutical
Corporation; Lowestfare.com, Inc.; National Energy Group, Inc., an oil & gas
exploration and production company; Next Generation Technology Holdings, Inc.;
and the A.G. Spanos Corporation, a national real estate developer and owner of
the NFL San Diego Chargers Football Club. Mr. Glass earned a B.A. in economics
from Princeton University and an M.B.A. from the Stanford University Graduate
School of Business.
CARL C. ICAHN, age 65, has served as Chairman of the Board and a Director
of Starfire Holding Corporation (formerly Icahn Holding Corporation), a
privately-held holding company, and Chairman of the Board and a Director of
various subsidiaries of Starfire, including ACF Industries, Incorporated, a
privately-held railcar leasing and manufacturing company, since 1984. He has
also been Chairman of the Board and President of Icahn & Co., Inc., a registered
broker-dealer and a member of the National Association of Securities Dealers,
since 1968. Since November 1990, Mr. Icahn has been Chairman of the Board of
American Property Investors, Inc., the general partner of American Real Estate
Partners, L.P., a public
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limited partnership that invests in real estate. Mr. Icahn has been a Director
of Cadus Pharmaceutical Corporation, a firm which holds various biotechnology
patents, since 1993. Since August 1998 he has also served as Chairman of the
Board of Lowestfare.com, LLC, an internet travel reservations company. From
October 1998, Mr. Icahn has been the President and a Director of Stratosphere
Corporation which operates the Stratosphere Hotel and Casino. Since September
29, 2000, Mr. Icahn has served as the Chairman of the Board of GB Holdings,
Inc., GB Property Funding, Inc. and Greate Bay Hotel & Casino, Inc. which owns
and operates the Sands Hotel in Atlantic City, NJ. All of the foregoing
companies are affiliated with Mr. Icahn. Mr. Icahn received his B.A. from
Princeton University. Please see Appendix II for additional information.
DR. SAMUEL D. WAKSAL, age 51, is the President and Chief Executive Officer
of ImClone Systems Incorporated, a biopharmaceutical company. Dr. Waksal spent
the first part of his career in academic medicine. From 1982 to 1985, he was a
member of the faculty of Mount Sinai School of Medicine as Associate Professor
of Pathology and Director of the Division of Immunotherapy within the Department
of Pathology. Dr. Waksal has also served as Visiting Investigator of the
National Cancer Institute, Immunology Branch, Research Associate of the
Department of Genetics, Stanford University Medical School, Assistant Professor
of Pathology at Tufts University School of Medicine and Senior Scientist at the
Tufts Cancer Research Center. Dr. Waksal has been a visiting Professor at the
Weizmann Institute in Israel and the Pasteur Institute in France. He has
published over fifty review articles and chapters in the field of immunology and
cancer. Dr. Waksal has helped to found over 15 biopharmaceutical companies
including Medicis Pharmaceutical Corporation, Cadus Pharmaceutical Corporation
and Merlin Pharmaceutical Corporation (now part of Cell Genesys Corporation). He
sits on the boards of Tribeca Pharmaceutical Corporation, Prototek, Microbes
Incorporated, Valigen and Amerimed Corporation. Dr. Waksal was also a founding
board member of the New York Biotechnology Association and sits on its executive
committee. He is also on the Board of Advisors of Rockefeller University.
PAUL J. ZEGGER, age 41, is a partner of Pennie & Edmonds LLP, a law firm
specializing in intellectual property and technology law. Mr. Zegger joined the
New York office of Pennie & Edmonds LLP in 1987. He has worked in all phases of
patent law including litigation, prosecution, licensing, validity and
infringement study and counseling. His primary area of technical expertise is in
chemical engineering, chemistry, pharmaceuticals, and biotechnology. Mr. Zegger
has extensively litigated intellectual property matters before the Federal
district courts and Court of Appeals for the Federal Circuit. Mr. Zegger
received a B.S. in Chemical Engineering in 1982 from the University of
Massachusetts and J.D. in 1987 from Albany Law School of Union University. He is
member of the bars of the states of New York, Connecticut and the District of
Columbia and is admitted to practice before numerous Federal district courts,
the Court of Appeals for the Federal Circuit and the United States Supreme
Court. He is also registered to practice before the United States Patent and
Trademark Office. Mr. Zegger is also a member of the American Intellectual
Property Law Association and the New York Intellectual Property law Association.
He has been a speaker on various issues pertaining to patent law. During 2000,
Mr. Zegger and Pennie & Edmonds LLP represented and currently continue to
represent Mr. Icahn and his affiliated entities in various intellectual property
law matters.
WE STRONGLY URGE YOU TO VOTE FOR THE ELECTION OF THE NOMINEES BY SIGNING,
DATING AND RETURNING THE ENCLOSED WHITE IN THE POSTAGE PAID ENVELOPE PROVIDED TO
YOU WITH THIS PROXY STATEMENT. IF YOU HAVE SIGNED THE WHITE PROXY CARD AND NO
MARKING IS MADE, YOU WILL BE DEEMED TO HAVE GIVEN A DIRECTION TO VOTE THE SHARES
REPRESENTED BY THE WHITE PROXY CARD FOR THE ELECTION OF ALL THE NOMINEES NAMED
ON THE WHITE PROXY CARD.
As set forth on Appendix I attached hereto, with the exception of Mr.
Icahn, none of the Nominees engaged in any transactions in securities of VISX
during the past two years. No Nominee owns any securities of VISX of record but
not beneficially. No Nominee, with the exception of Mr. Icahn, owns beneficially
any securities of VISX or any parent or subsidiary of VISX. In addition, and
except as stated herein, no Nominee or any of their associates has any agreement
or understanding with respect to future employment by VISX and no such person
has any agreement or understanding with respect to any future transactions to
which VISX will or may be a party.
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Except as described herein, no Nominee nor any of their associates (i) has
engaged in or had a direct or indirect interest in any transaction or series of
transactions since the beginning of VISX's last fiscal year or in any currently
proposed transaction, to which VISX or any of its subsidiaries is a party, where
the amount involved was in excess of $60,000, or (ii) borrowed any funds for the
purpose of acquiring or holding any securities of VISX or is presently, or has
been within the past year, a party to any contract, arrangement or
understanding, with any person with respect to securities of VISX.
AGREEMENTS WITH NOMINEES
High River has entered into a letter agreement (the "Nominee Agreements")
with each of the Nominees with respect to their service as nominees, to stand
for election as Directors of VISX at the Annual Meeting. The Nominee Agreements
each provide, among other things, as follows:
- The nominee has acknowledged that he has agreed to become a member of the
slate of nominees to stand for election as directors of the VISX in
connection with a proxy contest with management of VISX in respect of the
election of directors of VISX at the Annual Meeting.
- High River has agreed to pay the costs of the proxy contest.
- High River has agreed to indemnify each nominee from and against any
losses incurred by the nominee arising from any action relating to such
nominee's role as a nominee, absent gross negligence or willful
misconduct.
OTHER MATTERS TO BE CONSIDERED AT THE ANNUAL MEETING
According to VISX's Proxy Statement, VISX is soliciting proxies with
respect to one (1) proposal other than the election of directors. Please refer
to VISX's Proxy Statement for a detailed discussion of this proposal, including
various arguments in favor of and against such proposals. This proposal is
discussed briefly below.
ITEM 2 -- RATIFICATION OF APPOINTMENT OF INDEPENDENT AUDITORS
At the Annual Meeting, the Stockholders will be asked to ratify the
appointment of Arthur Andersen LLP as VISX's independent auditors for the year
ending December 31, 2001. Barberry recommends a vote FOR this proposal.
VOTING ON ITEM 2
The accompanying WHITE proxy card will be voted in accordance with your
instruction on such card. You may vote for or vote against, or abstain from
voting on Item 2 described above by marking the proper box on the WHITE proxy
card. IF YOU HAVE SIGNED THE PROXY CARD AND NO MARKING IS MADE, YOU WILL BE
DEEMED TO HAVE GIVEN A DIRECTION TO VOTE THE SHARES REPRESENTED BY THE WHITE
PROXY CARD FOR ITEM 2.
OTHER PROPOSALS
Barberry and its affiliates know of no other business to be presented at
the 2001 Annual Meeting, but if other matters do properly come before the 2001
Annual Meeting, the persons appointed in the proxy will use their discretion to
vote the shares of Common Stock represented by WHITE proxy cards in accordance
with their judgment on such matters.
VOTING PROCEDURES
According to the VISX Proxy Statement, the voting procedures are as set
forth below. Votes cast by proxy or in person at the Annual Meeting will be
tabulated by the Inspector of Elections, EquiServe, L.P. (the "Inspector"), VISX
Transfer Agent. The Inspector will also determine whether or not a quorum is
present. The presence at the Annual Meeting, in person or by proxy, of the
holders of a majority of the shares of
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Common Stock outstanding on March 19, 2001 will constitute a quorum. All proxies
representing shares that are entitled to vote at the meeting will be counted
toward establishing a quorum, regardless of whether such proxies contain
abstentions or broker non-votes.
The affirmative vote of a plurality of the votes cast at the meeting is
required for the election of directors. A properly executed proxy marked
"Withhold Authority" and broker non-votes with respect to the election of one or
more directors will not be voted with respect to the director or directors
indicated. The affirmative vote of the holders of a majority of the votes cast
at the meeting will be required to ratify each other proposal.
Whether or not you are able to attend the Annual Meeting, you are urged to
complete the enclosed WHITE proxy and return it in the enclosed self-addressed,
prepaid envelope. All valid proxies received prior to the meeting will be voted.
If you specify a choice with respect to any item by marking the appropriate box
on the proxy, the shares will be voted in accordance with that specification. IF
NO SPECIFICATION IS MADE, THE SHARES WILL BE VOTED FOR OUR NOMINEES WITH RESPECT
TO PROPOSAL 1 AND FOR PROPOSAL 2 AND, IN THE PROXY HOLDERS' DISCRETION AS TO
OTHER MATTERS THAT MAY PROPERLY COME BEFORE THE ANNUAL MEETING.
PROXY PROCEDURES
IN ORDER FOR YOUR VIEWS TO BE REPRESENTED AT THE ANNUAL MEETING, PLEASE
MARK, SIGN, DATE AND RETURN THE ENCLOSED WHITE PROXY CARD IN THE ENCLOSED
POSTAGE-PREPAID ENVELOPE.
The accompanying WHITE proxy card will be voted at the Annual Meeting in
accordance with your instructions on such card.
REVOCATION OF PROXIES
Any Stockholder who has mailed a gold proxy card to VISX may revoke it
before it is voted by mailing a duly executed WHITE Proxy Card to Barberry
bearing a date LATER than the gold proxy card delivered to VISX. Proxies may
also be revoked at any time prior to voting by: (i) delivering to the corporate
secretary of VISX, a written notice, bearing a date later than the date of the
proxy, stating that the proxy is revoked, (ii) delivering a duly executed proxy
bearing a later date than the proxy delivered previously, or (iii) by attending
the Annual Meeting and voting in person.
Only holders of record as of the close of business on the Record Date will
be entitled to vote. If you were a Stockholder of record on the Record Date, you
will retain your voting rights at the Annual Meeting even if you sell such
shares after the Record Date. Accordingly, it is important that you vote the
shares held by you on the Record Date, or grant a proxy to vote such shares on
the WHITE proxy card, even if you sell such shares after the Record Date.
COST AND METHOD OF SOLICITATION
Solicitation of proxies shall be made by Mr. Icahn and Mr. Glass. No other
director, officer or employee of Barberry or its affiliates will be soliciting
proxies.
Barberry has retained Innisfree M&A Incorporated ("Innisfree") to conduct
the solicitation, for which Innisfree is to receive a fee of up to approximately
$200,000, plus reimbursement for its reasonable out-of-pocket expenses. Barberry
has agreed to indemnify Innisfree against certain liabilities and expenses,
including certain liabilities under the federal securities laws. Insofar as
indemnification for liabilities arising under the federal securities laws may be
permitted to Innisfree pursuant to the foregoing provisions, we have been
informed that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy and is therefore unenforceable. Proxies
may be solicited by mail, courier services, Internet, advertising, telephone or
telecopier or in person. It is anticipated that Innisfree will employ
approximately 75 persons to solicit proxies from Stockholders for the Annual
Meeting. The total expenditures in furtherance of, or in connection with, the
solicitation of securities holders is $25,000 to date, and is estimated to be
$300,000 in total.
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Costs related to the solicitation of proxies, including expenditures for
attorneys, accountants, public relations and financial advisers, proxy
solicitors, advertising, printing, transportation and related expenses, will be
borne by Barberry and Mr. Icahn. Barberry and Mr. Icahn intend to seek
reimbursement for the costs and expenses associated with the proxy solicitation
in the event that the Nominees are elected to the Board of Directors of VISX,
but do not intend to submit the issue of reimbursement to a vote of security
holders.
CERTAIN INFORMATION REGARDING ARRANGEMENTS/UNDERSTANDINGS WITH RESPECT TO
SECURITIES OF VISX
Mr. Icahn, High River, Barberry and Ms. Golden may be deemed to have an
understanding with respect to securities of VISX as they may be deemed to
constitute a "group" for the purposes of Section 13(d) of the Securities
Exchange Act of 1934. As a consequence of being deemed a "group", such parties
are required to and have made Schedule 13D filings as a group. Such Schedule 13D
filings are publicly available at the Securities and Exchange Commission
website: www.sec.gov.
ADDITIONAL INFORMATION
Certain information regarding the securities of VISX held by VISX's
Directors, nominees, management and 5% Stockholders is contained in VISX's Proxy
Statement and is incorporated herein by reference. Information concerning the
date by which proposals of security holders intended to be presented at the next
annual meeting of Stockholders of VISX must be received by VISX for inclusion in
VISX's proxy statement and form of proxy for that meeting is also contained in
VISX's proxy statement and is incorporated herein by reference.
BARBERRY CORP.
Date: April 17, 2001
8
10
APPENDIX I
SUPPLEMENTAL NOMINEE AND OTHER INFORMATION
Set forth below is (a) the name and business address of each of the
participants and their associates in the solicitation made pursuant to this
Proxy Statement, and (b) the dates, types and amounts of each participant's
purchases and sales of the Company's debt and equity securities within the past
two years. Except for High River, Barberry and Ms. Golden, the only participants
are the Nominees.
NUMBER OF
NAME AND DATE OF SECURITIES CURRENT
BUSINESS ADDRESS TRANSACTION PURCHASED OWNERSHIP
---------------- ----------- ---------- ----------
Jerome M. Becker.......................................... NONE NONE NONE
NYS Housing Finance Agency
641 Lexington Avenue
New York, NY 10022
Russell D. Glass.......................................... NONE NONE NONE
Icahn Associates Corp.
767 Fifth Avenue
47th Floor
New York, NY 10153
Carl C. Icahn (see transactions of Barberry and High River listed below)
Icahn Associates Corp.
767 Fifth Avenue
47th Floor
New York, NY 10153
Samuel D. Waksal.......................................... NONE NONE NONE
ImClone Systems, Inc,
180 Varick Street, 6th floor
New York, NY 10014
Paul J. Zegger............................................ NONE NONE NONE
Pennie & Edmonds LLP
1667 K Street, N.W
Washington, DC 20006
TRANSACTIONS WITHIN THE PAST TWO YEARS
IN VISX VOTING
SECURITIES BY BARBERRY AND HIGH RIVER
NO. OF SHARES
OF COMMON STOCK
PURCHASED ("P")
NAME DATE OR SOLD ("S")
---- -------- ---------------------
High River Limited Partnership 5/12/00 34,400 P
5/15/00 3,100 P
5/16/00 9,000 P
5/17/00 2,000 P
5/19/00 66,900 P
5/22/00 24,000 P
5/23/00 27,200 P
5/24/00 13,600 P
5/25/00 19,700 P
5/26/00 4,000 P
5/30/00 2,000 P
5/31/00 17,600 P
6/1/00 42,400 P
9
11
NO. OF SHARES
OF COMMON STOCK
PURCHASED ("P")
NAME DATE OR SOLD ("S")
---- -------- ---------------------
6/2/00 10,000 P
6/5/00 8,300 P
6/6/00 167,400 P
6/7/00 62,000 P
6/8/00 48,000 P
6/9/00 12,900 P
6/12/00 55,100 P
6/13/00 28,000 P
6/14/00 3,900 P
8/15/00 25,500 P
8/16/00 54,600 P
8/17/00 46,600 P
8/18/00 53,100 P
8/23/00 10,000 P
8/23/00 40,400 P
8/28/00 43,905 P
8/29/00 43,800 P
8/30/00 48,800 P
8/31/00 62,200 P
9/01/00 108,700 P
9/05/00 39,200 P
9/06/00 120,100 P
9/07/00 70,000 P
9/08/00 75,000 P
9/11/00 100,000 P
9/11/00 88,300 P
9/12/00 50,000 P
9/13/00 58,500 P
9/14/00 48,500 P
9/15/00 39,000 P
9/18/00 103,500 P
9/20/00 100,000 P
9/21/00 73,500 P
9/22/00 95,000 P
9/25/00 55,800 P
9/26/00 110,000 P
9/27/00 95,000 P
9/28/00 65,000 P
9/29/00 150,600 P
10/02/00 110,000 P
10/04/00 50,000 P
10/05/00 50,000 P
10/06/00 50,000 P
10/17/00 250,000 P
Barberry 10/10/00 239,000 P
10/10/00 240,000 P
10
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NO. OF SHARES
OF COMMON STOCK
PURCHASED ("P")
NAME DATE OR SOLD ("S")
---- -------- ---------------------
10/12/00 114,300 P
10/13/00 1,700,000 P
10/18/00 172,300 P
10/19/00 200,000 P
10/20/00 108,900 P
Transactions by Gail Golden 6/5/00 1,000 P
6/9/00 100 P
7/24/00 100 P
8/2/00 100 P
8/8/00 90 P
9/26/00 100 P
2/26/01 500 P
11
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APPENDIX II
On January 5, 2001, Reliance Group Holdings, Inc. ("Reliance") commenced an
action in the United States District Court for the Southern District of New York
against Carl C. Icahn, Icahn Associates Corp. and High River as defendants
alleging that High River's tender offer for Reliance 9% senior notes violated
Section 14(e) of the Exchange Act. Reliance sought a temporary restraining order
and preliminary and permanent injunctive relief to prevent defendants from
purchasing the notes. The Court initially imposed a temporary restraining order.
Defendants then supplemented the tender offer disclosures. The Court conducted a
hearing on the disclosures and other matters raised by Reliance. The Court then
denied Reliance's motion for a preliminary injunction and ordered dissolution of
the temporary restraining order following dissemination of the supplement.
Reliance took an immediate appeal to the United States Court of Appeals for
the Second Circuit and sought a stay to restrain defendants from purchasing
notes during the pendency of the appeal. On January 30, 2001, the Court of
Appeals denied plaintiffs' stay application. On January 30, Reliance also sought
a further temporary restraining order from the District Court. The Court
considered the matter and reimposed its original restraint until noon the next
day, at which time the restraint against Mr. Icahn and his affiliates was
dissolved. On March 22, 2001, the Court of Appeals ruled in favor of Mr. Icahn
by affirming the judgment of the District Court.
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IMPORTANT
1. If your shares are held in your own name, please mark, date and mail the
enclosed WHITE proxy card to our Proxy Solicitor, Innisfree M&A Incorporated, in
the postage-paid envelope provided.
2. If your shares are held in the name of a brokerage firm, bank nominee or
other institution, only it can vote such shares and only upon receipt of your
specific instructions. Accordingly, you should contact the person responsible
for your account and give instructions for a WHITE proxy card to be signed
representing your shares.
3. If you have already submitted a gold proxy card to VISX for the Annual
Meeting, you may change your vote to a vote FOR the election of the Nominees by
marking, signing, dating and returning the enclosed WHITE proxy card for the
Annual Meeting, which must be dated after any proxy you may have submitted to
VISX. ONLY YOUR LATEST DATED PROXY FOR THE ANNUAL MEETING WILL COUNT AT THE
ANNUAL MEETING.
15
VISX, INCORPORATED
2001 ANNUAL MEETING OF STOCKHOLDERS
THIS PROXY IS SOLICITED BY BARBERRY CORP.
The undersigned hereby appoints and constitutes each of Carl C. Icahn
P and Russell D. Glass (acting alone or together) as proxies, with full power
of substitution in each, to represent the undersigned at the Annual Meeting
R of Stockholders of VISX, Incorporated (the "Company") to be held on May 4,
2001 at 8:00 a.m. local time, and at any adjournment or postponement
O thereof, hereby revoking any proxies previously given, to vote all shares
of Common Stock of the Company held or owned by the undersigned as directed
X below, and in their discretion upon such other matters as may come before
the meeting. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR EACH
Y NOMINEE NAMED ON THE REVERSE SIDE OF THIS PROXY CARD FOR DIRECTOR, FOR
PROPOSAL 2 AND AT THE DISCRETION OF THE PROXY HOLDERS UPON SUCH OTHER
BUSINESS AS MAY PROPERLY COME BEFORE THE MEETING. If any nominee for
director is unable or declines to serve as director, this proxy will be
voted for any nominee that Barberry Corp. designates.
SIGN, DATE AND MAIL YOUR PROXY TODAY
(CONTINUED AND TO BE SIGNED ON THE REVERSE SIDE.)
---------------- ----------------
|SEE REVERSE SIDE| |SEE REVERSE SIDE|
---------------- ----------------
16
[ X ] PLEASE MARK
VOTES AS IN
THIS EXAMPLE.
STOCKHOLDERS ARE URGED TO DATE, MARK, SIGN, AND RETURN THIS PROXY.
YOUR VOTE IS VERY IMPORTANT TO US.
BARBERRY RECOMMENDS A VOTE "FOR" THE ELECTION OF ITS NOMINEES
AND FOR PROPOSAL 2
FOR WITHHELD ABSTAIN
1. To elect the following five directors: ---- ---- ----
Jerome M. Becker, Russell D. Glass, | | | | | |
Carl C. Icahn, Samuel D Waksal, | | | | | |
Paul J. Zegger ---- ---- ----
(INSTRUCTIONS: To withhold authority to vote for
any individual Nominee, write that Nominee's name
on the space provided below:
_________________________________________________
FOR WITHHELD ABSTAIN
2. To ratify the appointment of ---- ---- ----
independent public accountants. | | | | | |
| | | | | |
---- ---- ----
FOR WITHHELD ABSTAIN
3. To act upon such other matters as may ---- ---- ----
properly come before the meeting or any | | | | | |
adjournment of postponement thereof. | | | | | |
---- ---- ----
---- MARK HERE IF YOU PLAN TO ---- MARK HERE FOR ADDRESS
| | ATTEND THE MEETING | | CHANGE AMD NOTE BELOW
---- ----
DATE: _______________________________ , 2001
____________________________________________
SIGNATURES(S) OF STOCKHOLDER(S)
___________________________________________
SIGNATURE (IF HELD JOINTLY)
____________________________________________
TITLE, IF ANY
Please sign exactly as your name(s) appear on your stock certificate. If shares
are issued in the name of two or more persons, all such persons should sign the
proxy. A proxy executed by a corporation should be signed in its name by its
authorized officers. Executors, administrators, trustees and partners should
indicate their positions when signing.