-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Kb4v4xiG0WGDMCAO5g1OAnGlnIYmHHsKCxDBlXG3ZzUqA0M9xXb4GVzXWtCbuofd YOl3Wt+3MxY1474bBaCqZA== 0000891618-95-000581.txt : 19951010 0000891618-95-000581.hdr.sgml : 19951010 ACCESSION NUMBER: 0000891618-95-000581 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19951006 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: VISX INC CENTRAL INDEX KEY: 0000837991 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 061161793 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 033-63235 FILM NUMBER: 95578993 BUSINESS ADDRESS: STREET 1: 3400 CENTRAL EXPRESSWAY CITY: SANTA CLARA STATE: CA ZIP: 95051 BUSINESS PHONE: 4087332020 FORMER COMPANY: FORMER CONFORMED NAME: TAUNTON TECHNOLOGIES INC DATE OF NAME CHANGE: 19901212 S-3 1 VISX, INC. FORM S-3 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 6, 1995 REGISTRATION NO. 33- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ VISX, INCORPORATED (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ------------------------ DELAWARE 06-1161793 (STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
3400 CENTRAL EXPRESSWAY SANTA CLARA, CA 95051 (408) 733-2020 (ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) MARK B. LOGAN CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER VISX, INCORPORATED 3400 CENTRAL EXPRESSWAY SANTA CLARA, CA 95051 (408) 733-2020 (NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ------------------------ COPIES TO: CHRISTOPHER D. MITCHELL , ESQ. ROY J. SCHMIDT, JR., ESQ. FELIX P. PHILLIPS, ESQ. SUZANNE SAWOCHKA HOOPER, ESQ. WILSON SONSINI GOODRICH & ROSATI GIBSON DUNN & CRUTCHER PROFESSIONAL CORPORATION 2029 CENTURY PARK EAST 650 PAGE MILL ROAD LOS ANGELES, CA 90067 PALO ALTO, CA 94304 (310) 552-8500 (415) 493-9300
------------------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after this Registration Statement becomes effective and the Underwriting Agreement is executed. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / / If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. / / If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. / / CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------- - -------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED MAXIMUM TITLE OF EACH CLASS NUMBER OF SHARES MAXIMUM AGGREGATE OF SECURITIES TO BE OFFERING PRICE OFFERING AMOUNT OF TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------- Common Stock, $0.01 par value.......... 2,875,000 $22.25 $63,968,750 $22,059 - ------------------------------------------------------------------------------------------------------------- - -------------------------------------------------------------------------------------------------------------
(1) Includes 375,000 shares which the Underwriters have the option to purchase to cover over-allotments, if any. (2) Estimated solely for the purpose of computing the amount of the registration fee, based on the average of the high and low prices for the Common Stock as reported on the Nasdaq National Market on September 29, 1995, in accordance with Rule 457(c). ------------------------ THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT FILES A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. SUBJECT TO COMPLETION, DATED OCTOBER 6, 1995 2,500,000 SHARES [LOGO] COMMON STOCK THE 2,500,000 SHARES OF COMMON STOCK, PAR VALUE $0.01 PER SHARE (THE "COMMON STOCK"), OFFERED HEREBY (THIS "OFFERING") ARE BEING OFFERED BY VISX, INCORPORATED ("VISX" OR THE "COMPANY"). THE COMMON STOCK IS QUOTED ON THE NASDAQ NATIONAL MARKET ("NASDAQ") UNDER THE SYMBOL "VISX." ON OCTOBER 4, 1995, THE LAST REPORTED SALES PRICE OF THE COMMON STOCK ON NASDAQ WAS $22 1/2 PER SHARE. SEE "PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY." FOR A DISCUSSION OF CERTAIN RISKS OF AN INVESTMENT IN THE SHARES OF COMMON STOCK OFFERED HEREBY, SEE "RISK FACTORS" ON PAGES 5 TO 10. ------------------------ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ------------------------
UNDERWRITING PRICE TO DISCOUNTS AND PROCEEDS TO PUBLIC COMMISSIONS* COMPANY+ PER SHARE...................... $ $ $ TOTAL++........................ $ $ $
- --------------- * THE COMPANY HAS AGREED TO INDEMNIFY THE UNDERWRITERS AGAINST CERTAIN LIABILITIES, INCLUDING LIABILITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SEE "UNDERWRITING." + BEFORE DEDUCTING EXPENSES OF THIS OFFERING PAYABLE BY THE COMPANY ESTIMATED TO BE $350,000. ++ THE COMPANY HAS GRANTED THE UNDERWRITERS A 30-DAY OPTION TO PURCHASE UP TO 375,000 ADDITIONAL SHARES OF COMMON STOCK ON THE SAME TERMS PER SHARE SOLELY TO COVER OVER-ALLOTMENTS, IF ANY. IF SUCH OPTION IS EXERCISED IN FULL, THE TOTAL PRICE TO PUBLIC WILL BE $ , THE TOTAL UNDERWRITING DISCOUNTS AND COMMISSIONS WILL BE $ AND THE TOTAL PROCEEDS TO COMPANY WILL BE $ . SEE "UNDERWRITING." ------------------------ THE COMMON STOCK IS BEING OFFERED BY THE UNDERWRITERS AS SET FORTH UNDER "UNDERWRITING" HEREIN. IT IS EXPECTED THAT THE DELIVERY OF CERTIFICATES THEREFOR WILL BE MADE AT THE OFFICES OF DILLON, READ & CO. INC., NEW YORK, NEW YORK, ON OR ABOUT , 1995, AGAINST PAYMENT THEREFOR IN NEW YORK FUNDS. THE UNDERWRITERS INCLUDE: DILLON, READ & CO. INC. PAINEWEBBER INCORPORATED THE DATE OF THIS PROSPECTUS IS , 1995. 3 [VISX logo appears here] United States International Pillar Point Partners Licensing Agreements [Above text appears inside of a [Above text appears inside photo of U.S. Map] of a photo of world globe] *Worldwide Equipment Sales through Alcon *Per Procedure *Equipment Royalties Royalties from Licensees from Licensed Manufacturers *Equipment Royalties *Use Royalties from from Licensees Licensed Manufacturers *[Text appears inside of an outline of a diamond] THE VISX SYSTEM FOR LVC IS AN INVESTIGATIONAL DEVICE AND HAS NOT RECEIVED FDA APPROVAL FOR COMMERCIAL SALE IN THE UNITED STATES. ------------------ IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK OF THE COMPANY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS OR OTHER SELLING GROUP MEMBERS MAY ENGAGE IN PASSIVE MARKET MAKING TRANSACTIONS IN THE COMMON STOCK OF THE COMPANY ON THE NASDAQ NATIONAL MARKET IN ACCORDANCE WITH RULE 10B-6A UNDER THE SECURITIES EXCHANGE ACT OF 1934. SEE "UNDERWRITING." 2 4 PROSPECTUS SUMMARY The following summary is qualified in its entirety by the more detailed information, including "Risk Factors," the consolidated financial statements and notes thereto appearing elsewhere in this Prospectus and the documents incorporated by reference herein. Unless otherwise indicated, all information in this Prospectus assumes no exercise of the Underwriters' over-allotment option. See "Underwriting." THE COMPANY VISX is a leader in the design and development of proprietary technologies and systems for laser vision correction ("LVC"), an outpatient surgical procedure to treat refractive vision disorders such as nearsightedness, astigmatism and farsightedness with the goal of eliminating or reducing reliance on eyeglasses and contact lenses. In LVC, a computer-controlled excimer laser ablates, or removes, submicron layers of tissue from the surface of the cornea to reshape the eye, thereby improving visual acuity. Vision correction represents one of the largest medical markets with over 100 million people in the United States experiencing some form of nearsightedness, astigmatism or farsightedness. Industry sources estimate that approximately $13 billion was spent on eyeglasses, contact lenses and other corrective eyewear in the United States in 1994. Vision correction is typically paid for by the individual receiving treatment and does not rely on reimbursement from governmental or private health care payors. Since its inception in 1985, VISX has been developing a substantial proprietary position in system and application technology relating to the use of lasers for vision correction. The Company's strategy is to commercialize this intellectual property position through (i) per procedure and equipment royalties from Pillar Point Partners ("Pillar Point") at such time as the United States Food and Drug Administration ("FDA") grants pre-market approval ("PMA") for LVC indications, (ii) international use and equipment royalties collected under direct licensing agreements, and (iii) worldwide sales of the Company's excimer laser system through Alcon Laboratories, Inc. and its affiliates ("Alcon"), the Company's exclusive marketing partner. Pillar Point was formed by the Company and Summit Technology, Inc. ("Summit") in 1992 to hold certain United States patent rights of both companies relating to LVC. Through Pillar Point, the Company will participate in the commercialization of LVC in the United States following receipt of a PMA for LVC by either company. Under the terms of the Pillar Point agreement, which relates only to United States equipment sales and use, VISX and Summit will share profits from per procedure royalties, and all partnership profits attributable to royalties on laser equipment sales by Summit will be allocated to VISX. In September 1995, Summit announced that it received an FDA approvable letter for its PMA application for LVC for treatment of nearsightedness. Summit has indicated that it believes the approvable letter positions Summit to receive FDA approval to market its LVC system for treatment of nearsightedness by the end of 1995 which would enable Pillar Point to receive revenue beginning shortly thereafter. There can, however, be no assurance that Summit will receive such approval within this time frame, or at all. Pillar Point also intends to make its patents available, through licensing agreements, to other manufacturers that obtain PMA for LVC systems and seek to make, use or sell such systems in the United States. VISX and Summit would, in such event, share in profits from per procedure and equipment royalties paid to Pillar Point by other manufacturers that are licensed by Pillar Point. The Company believes that one of its key strengths is the patent position of Pillar Point, which holds exclusive licenses from VISX and Summit to more than 20 United States patents covering methods and hardware for performing LVC. Internationally, VISX holds 75 patents and is pursuing a strategy which includes licensing other manufacturers of excimer laser systems for LVC in the countries in which VISX holds patents. In September 1995, VISX entered into a license agreement with Chiron Vision Corporation ("Chiron") and extended its agreement, originally entered into in 1994, with Aesculap-Meditec ("Meditec"). Under these agreements, the Company will receive royalties for sales and use of Chiron and Meditec equipment in Canada and will receive equipment royalties on all other international sales. Chiron and Meditec are two of the largest manufacturers of excimer lasers for eye care applications in international markets. 3 5 The Company manufactures its proprietary excimer laser system (the "VISX System") for LVC and other applications and has been marketing the VISX System internationally since 1988. To date, over 200 VISX Systems have been shipped and the Company estimates that over 250,000 eyes have been treated with the installed base of VISX Systems in over 30 countries. The Company has completed United States clinical trials for LVC for the treatment of low-level myopia and for phototherapeutic keratectomy ("PTK"), a laser surgical procedure for treating corneal pathologies. On September 29, 1995, the Company received FDA approval of its PMA application for the VISX System for PTK and has commenced United States commercialization of the VISX System for this indication. Additionally, the FDA has requested that the Company be prepared to present its PMA application for LVC for treatment of low-level myopia at a meeting of the FDA's Ophthalmic Devices Advisory Panel scheduled for October 20, 1995. THE OFFERING Common Stock Offered by the Company.......... 2,500,000 shares Common Stock Outstanding after this Offering................................... 15,071,142 shares(1) Use of Proceeds.............................. For research and development, ongoing clinical trials, expansion of marketing and manufacturing activities, working capital and other general corporate purposes. See "Use of Proceeds." Nasdaq National Market symbol................ VISX
SUMMARY FINANCIAL INFORMATION (IN THOUSANDS, EXCEPT PER SHARE DATA)
SIX MONTHS ENDED YEAR ENDED DECEMBER 31, JUNE 30, ---------------------------------------------------- ----------------- 1990 1991 1992 1993 1994 1994 1995 ------- ------- -------- ------- ------- ------- ------- STATEMENT OF OPERATIONS DATA: Total revenues.................... $ 6,621 $13,171 $ 20,285 $22,074 $17,896 $10,237 $ 6,475 Cost of revenues.................. 4,126 8,285 12,551 12,030 10,274 5,250 4,438 Total costs and expenses.......... 14,632 15,573 30,859(2) 22,266 25,230 10,723 12,962 Loss from operations.............. (8,011) (2,402) (10,574)(2) (192) (7,334) (486) (6,487) Net income (loss)................. (7,209) (1,817) (9,551)(2) 179 (6,264) (257) (8,279) Net income (loss) per share....... $ (.94) $ (.22) $ (.98)(2) $ .02 $ (.60) $ (.03) $ (.71) Weighted average number of shares and equivalents outstanding..... 7,643 8,214 9,706 10,540 10,372 10,271 11,654
JUNE 30, 1995 ---------------------- AS ACTUAL ADJUSTED(3) -------- ----------- BALANCE SHEET DATA: Cash and short-term investments................................................. $ 14,845 $ 67,511 Working capital................................................................. 17,788 70,454 Total assets.................................................................... 27,344 80,010 Deferred revenue and other long-term obligations................................ 409 409 Accumulated deficit............................................................. (45,082) (45,082) Stockholders' equity............................................................ 20,157 72,823
- --------------- (1) Based on shares of Common Stock outstanding as of June 30, 1995. Excludes 1,502,393 shares of Common Stock reserved for issuance upon exercise of outstanding options and an additional 571,972 shares reserved for issuance pursuant to future grants under the Company's stock plans as of June 30, 1995. See Note 5 of Notes to Consolidated Financial Statements. (2) Includes a $6.0 million charge for purchased research and development incurred in connection with an acquisition. See Note 1 of Notes to Consolidated Financial Statements. (3) Adjusted to reflect the sale of the 2,500,000 shares of Common Stock offered by the Company hereby at an assumed public offering price of $22 1/2 per share and after deducting the estimated underwriting discounts and commissions and offering expenses. 4 6 RISK FACTORS In evaluating the Company's business, prospective investors should carefully consider the following risk factors in addition to the other information in this Prospectus and the documents incorporated by reference herein. ABSENCE OF PROFITABLE OPERATIONS HISTORY; FLUCTUATIONS IN RESULTS OF OPERATIONS The Company began operations in March 1986 and has recorded losses from operations in all years since its inception. At June 30, 1995, the Company had an accumulated deficit of $45.1 million. The Company anticipates continued losses from operations due to ongoing research, development and clinical expenditures as well as increased sales, marketing and manufacturing expenditures to support United States commercial introduction of the VISX System. In addition, the Company's results of operations have in the past fluctuated substantially from period to period, due largely to the timing and amount of orders received from Alcon, and its future results of operations may vary significantly from quarter to quarter, as a result of the amount and timing of revenues from use and equipment royalties paid to Pillar Point, royalties under international licensing arrangements, international equipment sales to Alcon and United States equipment sales. There can be no assurance that the Company will achieve profitability in the future or that profitability, if achieved, will be sustained. FDA approval of an LVC system is of critical importance to the Company and failure of such approval to be granted would have a material adverse effect on the Company's business, financial condition and results of operations. In addition, failure to receive FDA approval for the VISX System for LVC could materially affect the perception of the Company in the marketplace, and could also have a material adverse effect on the Company's business, financial condition and results of operations. See "Management's Discussion and Analysis of Financial Condition and Results of Operations." UNCERTAINTY OF MARKET ACCEPTANCE The Company believes that its profitability and growth will depend upon broad acceptance of LVC in the United States and key international markets targeted by the Company. There can be no assurance that LVC will be accepted by either the ophthalmic community or the general population as an alternative to existing methods of treating refractive vision disorders. The acceptance of LVC may be affected adversely by its cost, concerns relating to its safety and efficacy, general resistance to surgery, the effectiveness of alternative methods of correcting refractive vision disorders, the lack of long-term follow-up data, the possibility of unknown side effects, and the lack of third-party reimbursement for the procedure. Many consumers may choose not to have LVC due to the availability of nonsurgical methods for vision correction. Any future reported adverse events or other unfavorable publicity involving patient outcomes from use of LVC systems manufactured by any participant in the LVC market could also adversely affect acceptance of the procedure. Market acceptance could also be affected by the ability of the Company and other participants in the LVC market to train a broad population of ophthalmologists in the procedure. Ophthalmologist acceptance could also be affected by the cost of the excimer laser systems used to perform LVC. Promotional efforts by suppliers of products or procedures which are alternatives to LVC, including eyeglasses and contact lenses, may also adversely affect the market acceptance of LVC. The failure of LVC to achieve broad market acceptance would have a material adverse effect on the Company's business, financial condition and results of operations. See "Business -- Marketing, Sales and Distribution." RISKS RELATING TO PILLAR POINT PARTNERS The agreements establishing Pillar Point (collectively, the "Pillar Point Agreement") contemplate that royalties will be paid to Pillar Point each time a laser system is used to perform LVC in the United States under licenses granted to the Company, Summit or other manufacturers. Should the Company receive PMA for LVC, the Company will seek to establish and maintain contractual arrangements permitting it to collect per procedure royalties from use of VISX Systems. There can, however, be no assurance that the Company or Summit will be able to collect such royalties. In forming Pillar Point, 5 7 the Company and Summit endeavored to structure the operations of the partnership in a manner consistent with antitrust laws. The compliance of Pillar Point with these laws will depend upon the activities of the partners, a determination of what constitutes a relevant market for purposes of such laws, the nature of the patents, the number and relative strength of competitors in such markets and numerous other factors, many of which are presently unknown or are beyond the control of Pillar Point, VISX and Summit. No assurance can be given that the activities of Pillar Point will not be challenged under such laws. In March 1995, Pillar Point sued LaserSight, Inc. for patent infringement in the Federal District Court for Delaware. In that action, LaserSight has asserted several affirmative defenses and has entered a declaratory judgment counterclaim asserting, among other things, that the Pillar Point Agreement constitutes patent misuse. Any successful challenge to the operation of Pillar Point or to its patents could have a material adverse effect on the Company's business, financial condition and results of operations. See "Business -- Pillar Point Partners and Other Licensing Arrangements." In addition, there can be no assurance that the Pillar Point Agreement will preclude patent disputes with Summit relating to technology not included in Pillar Point in the United States or relating to any technology outside the United States. In particular, Summit has sued VISX in the United States under a patent held by Summit and not licensed to Pillar Point, and VISX has sued Summit in Canada for infringement of certain of VISX's Canadian patents. See "-- Reliance on Patents and Proprietary Technology; Risks Related to Patent Litigation" and "Business -- Legal Proceedings." RELIANCE ON PATENTS AND PROPRIETARY TECHNOLOGY; RISKS RELATED TO PATENT LITIGATION Protection of the Company's proprietary technology is important to its business. In the United States, there are a number of patents covering methods and apparatus for performing corneal surgery with ultraviolet lasers, including patents owned by VISX and Summit. Pursuant to the Pillar Point Agreement VISX and Summit each contributed their rights under United States patents previously issued to them covering apparatus and methods for performing ultraviolet laser corneal surgery. The Pillar Point Agreement also provides that certain other patent rights obtained by either VISX or Summit must be contributed or offered to Pillar Point, depending upon the nature of the particular patent rights involved. In addition, there are also multiple foreign patents covering apparatus for performing excimer laser corneal surgery, including patents or patent rights held by VISX, Summit, and others. See "Business -- Pillar Point Partners and Other Licensing Arrangements" and "Business -- Patents and Proprietary Rights." There can be no assurance that the United States patent rights held by Pillar Point or international patents held by VISX will afford any significant degree of protection or provide the Company with a competitive advantage. In particular, there can be no assurance that any such patents will not be challenged, invalidated or circumvented in the future, either in the United States or internationally. Failure to maintain the protection afforded by the patents held by Pillar Point and the Company's international patents would have a material adverse effect on the Company's future revenues and ability to become profitable. Further, there can be no assurance that the patents held by Pillar Point or the Company's international patents will ultimately be found to be valid or enforceable or that the Company's patent rights will deter others from developing substantially equivalent or competitive products. In addition, the medical device industry, including the ophthalmic laser sector, has been characterized by substantial litigation, both in the United States and internationally, regarding patents and proprietary rights. The Company is engaged in several pending patent proceedings, both in the United States and internationally. In the United States, Summit has sued the Company for infringement of a patent held by Summit and not licensed to Pillar Point. Internationally, the Company has filed actions alleging infringement of its patents against certain parties in Canada, is involved in opposition proceedings challenging the issuance of certain patents in the European Patent Office ("EPO") and has filed an action alleging patent infringement against a company in Germany. For additional detail regarding these patent proceedings, see "Business -- Legal Proceedings." There can be no assurance 6 8 that additional patent infringement claims in the United States or in other countries will not be asserted against VISX by Summit (limited in the United States to patent rights not included in Pillar Point) or others, or, if asserted, that VISX will be successful in defending against such claims. Furthermore, Pillar Point or VISX may undertake additional infringement actions against others. Infringement actions with respect to United States patents licensed to Pillar Point could be brought or defended by Pillar Point, although the partners would have the right to initiate, pursue, defend or participate in such actions if Pillar Point declined to do so. The defense and prosecution of patent proceedings is costly and involves substantial commitments of management time. Adverse determinations in litigation or other patent proceedings to which the Company currently is or may become a party could subject the Company to significant liabilities to third parties and require the Company to seek licenses from third parties. Although patent and intellectual property disputes in the medical device area have often been settled through licensing or similar arrangements, costs associated with such arrangements may be substantial and could include ongoing royalties. Furthermore, there can be no assurance that necessary licenses would be available to the Company on satisfactory terms or at all. Accordingly, an adverse determination in a judicial or administrative proceeding or failure to obtain necessary licenses could prevent the Company from manufacturing and selling its products in one or more markets, which would have a material adverse effect on the Company's business, financial condition and results of operations. In addition, the Company's marketing agreement with Alcon is terminable if any of the Company's patent rights is found to be unenforceable or invalid in the United States, which could adversely affect the marketing of the VISX System. See "Business -- Patents and Proprietary Rights" and "Business -- Legal Proceedings." LACK OF FDA APPROVAL FOR LVC; GOVERNMENT REGULATION LVC systems, including the VISX System, are regulated in the United States as medical devices by the FDA under the federal Food, Drug, and Cosmetic Act ("FDC Act") and, as such, require FDA approval of a PMA application prior to commercial sale in the United States. The process of obtaining approval of a PMA application is lengthy, expensive and uncertain, generally takes several years or longer to complete, if approval is obtained at all, and requires the submission of extensive clinical data and supporting information to the FDA. The PMA process also typically requires a public hearing before an advisory panel comprised of experts in the relevant field. The FDA is not bound by the advisory panel's recommendations; however, it tends to accord them significant weight. On September 29, 1995, the Company received FDA approval of its PMA application for the VISX System for PTK. In addition, the FDA has requested the Company to be prepared to present its PMA application for LVC for treatment of low-level myopia at an advisory panel meeting scheduled for October 20, 1995. The panel review could, however, be changed or rescheduled, and, accordingly, there can be no assurance that panel review will be held on such date or as to the action that the panel will take. If the panel issues an unfavorable recommendation, the FDA could require the Company to design and conduct new clinical trials, modify the device or undertake other actions in connection with the Company's PMA application. Accordingly, an adverse recommendation by the panel will significantly increase the time and expense required for the Company to obtain a PMA for the VISX System for LVC and will substantially increase the likelihood that the Company will never be able to obtain such approval. If the panel recommendation is favorable, the FDA will continue its review of the Company's PMA application, particularly in light of any observations or recommendations made by the panel. A favorable panel recommendation will not assure receipt of PMA, and the time frame required to obtain a PMA following the panel recommendation may be significant. Accordingly, there can be no assurance as to when or whether the Company will receive PMA for the VISX System for LVC. Summit has announced that it has received an approvable letter from the FDA for its PMA application for treatment of nearsightedness using LVC. However, there can be no assurance that Summit will obtain approval for use of LVC to treat nearsightedness on a timely basis or at all, and delays in receipt of or failure of Summit to receive such approval could, by virtue of the Company's rights to profits from use and equipment royalties through Pillar Point, have a material adverse effect on the Company's business, financial condition and results of operations. The failure of LVC systems to be approved by the FDA 7 9 would have a material adverse effect on the Company's business, financial condition and results of operations. See "Business -- Government Regulation." In June 1995, the FDA promulgated a draft proposal entitled "FDA Guidance for Photorefractive Keratectomy Laser Systems: IDE Studies and PMA Applications." The proposal, which would add substantial additional requirements for LVC clinical trials, is intended to supersede prior draft guidelines promulgated by the FDA in 1990 but never finalized. In July 1995, at a public hearing regarding the draft proposal, the FDA and the Ophthalmic Devices Advisory Panel heard recommendations from various industry sources. It is uncertain as to whether the FDA will accept all or any of the recommended changes to the draft proposal. FDA implementation of some or all of proposal's recommendations could, particularly if such implementation is retroactive, require the Company to submit additional clinical data, including data not collected in the Company's United States clinical trials. Such implementation could therefore substantially delay receipt of PMA for the VISX System for LVC and increase the likelihood that the Company will not be able to obtain such approval. Products manufactured or distributed by the Company pursuant to a PMA will be subject to pervasive and continuing regulation by the FDA. The FDC Act also requires the Company to manufacture its products in accordance with its Good Manufacturing Practices ("GMP") regulations. The Company's facilities are subject to periodic GMP inspections by the FDA. These regulations impose certain procedural and documentation requirements upon the Company with respect to manufacturing and quality assurance activities. The FDA has proposed amendments to the GMP regulations which will likely increase the cost of compliance with GMP requirements. Labeling and promotional activities are subject to scrutiny by the FDA, and current FDA enforcement policy prohibits the marketing of approved medical devices for unapproved uses. Noncompliance with applicable requirements can result in, among other things, warning letters, fines, injunctions, penalties, recall or seizure of products, total or partial suspension of production, denial or withdrawal of premarket approval of devices, and criminal prosecution. Changes in existing regulatory requirements or adoption of new requirements could have a material adverse effect on the Company's business, financial condition and results of operations. There can be no assurance that the Company will not be required to incur significant costs to comply with laws and regulations in the future or that laws and regulations will not have a material adverse effect on the Company's business, financial condition or results of operations. International sales of LVC systems, including the VISX System, are subject to regulations governing the sale of medical devices in the countries in which these systems are sold, as well as to FDA export clearances. International regulatory requirements vary by country and there can be no assurance that VISX will receive additional international regulatory approvals or meet requirements for ongoing commercial sales, or as to the associated cost or delay. Failure to receive approval in, or meet the requirements of, any country would prevent the Company from selling its products in such country, which could adversely affect the Company's results of operations. See "Business -- Government Regulation." LACK OF LONG-TERM FOLLOW-UP DATA; UNDETERMINED MEDICAL RISKS Concerns with respect to the safety and efficacy of LVC include predictability and stability of results. Potential complications and side effects include: post-operative discomfort; corneal haze during healing (an increase in the light scattering properties of the cornea); glare/halos (undesirable visual sensations produced by bright lights); decreases in contrast sensitivity; temporary increases in intraocular pressure in reaction to procedure medication; modest fluctuations in refractive capabilities during healing; modest decrease in best corrected vision (i. e., with corrective eyewear); unintended over- or under-corrections; regression of effect; disorders of corneal healing; corneal scars; corneal ulcers and induced astigmatism. There can be no assurance that long-term follow-up data will not reveal additional complications that may have a material adverse effect on acceptance of LVC which in turn would have a material adverse effect on the Company's business, financial condition and results of operations. Concern over the safety of LVC or other procedures could in turn adversely affect market 8 10 acceptance of LVC and the VISX System or result in adverse regulatory action, including product recalls, any of which could have a material adverse effect on the Company's business, financial condition and results of operations. See "Business -- Clinical Trials and Results." DEPENDENCE ON THIRD-PARTY SALES AND MARKETING; RISKS ASSOCIATED WITH INTERNATIONAL SALES Alcon serves as the Company's exclusive international distributor and has exclusive domestic sales and marketing rights. Accordingly, the Company is entirely dependent upon the efforts of Alcon for international sales of VISX Systems and will be dependent upon Alcon for domestic product sales. Furthermore, the Company's international marketing agreement with Alcon does not contain specified minimum purchase commitments and requires annual agreement on unit pricing and number of systems to be purchased by Alcon. The agreement provides that disputes thereunder as to pricing and certain other matters are to be resolved by binding arbitration. The Company's domestic agreement provides that sales targets are also subject to binding arbitration if not agreed upon by the parties. Both agreements also require the Company to indemnify Alcon and its affiliates for damages, up to an aggregate of $4.0 million, arising out of certain potential claims, including personal injury and patent infringement claims. International sales may be limited or disrupted by the imposition of government controls, export license requirements, political instability, trade restrictions, changes in tariffs, difficulties in staffing and coordinating communications among and managing international operations. Additionally, the Company's business, financial condition and international results of operations may be adversely affected by increases in duty rates, difficulties in obtaining export licenses, ability to maintain or increase prices, and competition. See "Business -- Marketing, Sales and Distribution." COMPETITION AND TECHNOLOGICAL CHANGE The medical device and ophthalmic laser industries are subject to intense competition and technological change. LVC using excimer laser systems for treatment of refractive disorders competes with eyeglasses, contact lenses and radial keratotomy ("RK"), as well as with other technologies and surgical techniques currently under development, such as corneal implants and surgery using different types of lasers. In the United States, the Company believes that it and Summit are the leading manufacturers of excimer refractive surgical systems. In September 1995, Summit announced that it received an approvable letter from FDA for its PMA application for LVC for treatment of nearsightedness. Summit has indicated that the approvable letter positions Summit to receive FDA approval to market its LVC system for treatment of nearsightedness by the end of 1995. An LVC approval would enable Summit to commence commercial sale of its laser system for LVC in the United States prior to the Company, which, although the Company would receive per procedure and equipment royalties through Pillar Point, would afford Summit a competitive advantage with respect to equipment sales for LVC. Use of the VISX System for PTK to treat corneal pathologies competes with corneal transplants, surgery and drug treatments. The VISX System also competes with products marketed or under development by other laser and medical equipment manufacturers, many of which may have greater financial and other resources than the Company. Additionally, competitors, both in the United States and abroad, may enter the excimer laser equipment manufacturing business or acquire existing companies. Such competitors may be able to offer their products at a lower cost or may develop procedures that involve a lower per procedure cost. Competition from new entrants may be particularly prevalent in those countries where significant regulatory approvals are not required. In addition, medical companies, academic and research institutions and others could develop new therapies, including new medical devices or surgical procedures, for the conditions targeted by the Company, which therapies could be more medically effective and less expensive than LVC, and could potentially render LVC obsolete. Any such developments could have a material adverse effect on the business, financial condition and results of operations of the Company. See "Business -- Competition." 9 11 VOLATILITY OF STOCK PRICE The Company's Common Stock has experienced substantial price volatility, and such volatility may occur in the future. In addition, the stock market from time to time has experienced extreme price and volume fluctuations that have affected the market price of many companies and have often been unrelated to the operating performance of particular companies. Factors such as developments with respect to the Company's PMA applications and clinical trials, fluctuations in the Company's operating results, announcements of technological innovations or new products by the Company or its competitors, developments with respect to patents or proprietary rights and litigation relating thereto, public concern as to the safety of products developed by the Company or others, changes in recommendations of securities analysts and general market conditions may have a significant effect on the market price of the Company's Common Stock. See "Price Range of Common Stock and Dividend Policy." PRODUCT LIABILITY AND INSURANCE Inherent in the testing and use of human health care devices is the potentially significant risk of physical injury to patients which could result in product liability or other claims based upon injuries or alleged injuries associated with a defect in the product's performance, which may not become evident for a number of years. The VISX System includes high-voltage power supplies, cryogenic subsystems, high-pressure gases, toxic gases, and other potentially hazardous factors. In the event of an accident, the Company could be liable for any damages that result, and any such liability could exceed the resources of the Company. VISX maintains a "claims made" product liability insurance policy in the amount of $4.0 million, which is the maximum payout for all claims that could be made during the policy period. The inability of the Company to maintain adequate insurance coverage as well as any product liability or personal injury claims in excess of the Company's insurance coverage could have a material adverse effect on the Company's business, financial condition and results of operations. See "Business -- Product Liability and Insurance." MANUFACTURING RISKS The Company currently does not have experience manufacturing its VISX System in large-scale, commercial quantities. In the event that the Company receives FDA approval for LVC, the Company would need to hire and train additional manufacturing personnel to meet increased production requirements. In addition, the Company contracts with third parties for the manufacture or assembly of certain components. Several of these components are currently provided by a single vendor. If any of these suppliers were to cease providing components to the Company, the Company would be required to locate and contract with a substitute supplier, and there can be no assurances that such substitute supplier could be located and qualified in a timely manner or could provide required components on commercially reasonable terms. A failure to increase production volumes in a cost-effective or timely manner, or an interruption in the manufacturing of VISX Systems, could have a material adverse effect on the Company's business, financial condition and results of operations. See "Business -- Manufacturing, Components and Raw Materials." FUTURE CAPITAL REQUIREMENTS Although the Company anticipates that the net proceeds of this Offering will be sufficient to meet the Company's capital requirements for at least the next 24 months, there can be no assurance that the Company will not require additional financing. The Company's future liquidity and capital requirements will depend upon numerous factors, including the timing of FDA approval of an LVC system. Future financings may result in the issuance of senior securities or in dilution to holders of the Common Stock. Any such financing, if required, may not be available on satisfactory terms or at all. See "Management's Discussion of Financial Condition and Results of Operations -- Liquidity and Capital Resources." 10 12 THE COMPANY The Company is incorporated in Delaware. The Company's principal executive offices are located at 3400 Central Expressway, Santa Clara, California 95051 and its telephone number at that location is (408) 733-2020. All references in this Prospectus to VISX and the Company refer to VISX and its subsidiaries unless the context otherwise indicates. The VISX logo and VisionKey are Company trademarks. Trademarks of other companies also are referred to in this Prospectus. USE OF PROCEEDS The net proceeds to the Company from the sale of 2,500,000 shares of Common Stock offered hereby, after deduction of underwriting discounts and offering expenses, are estimated to be $52.7 million (or $60.6 million if the Underwriters' over-allotment option is exercised in full). The Company expects to use a majority of the net proceeds of this Offering for research and development, ongoing clinical trials of the VISX System for additional indications and expansion of marketing and manufacturing activities, and expects to use the remainder of the net proceeds for general corporate purposes including working capital. The amount and timing of the expenditures of the net proceeds for these purposes will depend on numerous factors, including timing of receipt of FDA approval to market the VISX System for LVC. The Company may also use a portion of the net proceeds to acquire complementary businesses, products or technologies, although the Company has no current agreements or understandings with respect to any such transactions. Pending such uses, the Company intends to invest such net proceeds in short-term, investment-grade, interest-bearing securities. PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY Since November 4, 1993, the Common Stock has traded on the Nasdaq National Market under the symbol "VISX." From February 1991 to November 3, 1993, the Common Stock was listed on the American Stock Exchange under the symbol "VSX." The following table sets forth for the periods indicated the high and low sale prices of the Common Stock as reported by the Nasdaq National Market and the American Stock Exchange, as appropriate.
HIGH LOW ------- ------- 1993 1st Quarter...................................................... $13 7/8 $ 9 1/2 2nd Quarter...................................................... 12 1/2 8 1/2 3rd Quarter...................................................... 15 3/4 9 1/2 4th Quarter...................................................... 18 1/4 12 1/2 1994 1st Quarter...................................................... $28 3/4 $15 1/2 2nd Quarter...................................................... 21 1/4 13 3/4 3rd Quarter...................................................... 22 11 3/4 4th Quarter...................................................... 14 1/2 10 1995 1st Quarter...................................................... $15 7/8 $10 2nd Quarter...................................................... 14 5/16 10 7/8 3rd Quarter...................................................... 24 1/8 13 4th Quarter (through October 4, 1995)............................ 24 3/4 22
On October 4, 1995, the last reported sale price of the Common Stock on the Nasdaq National Market was $22 1/2 per share. As of such date, there were approximately 841 holders of record of the Common Stock. The Company has never declared or paid any cash dividends on its Common Stock. The Company presently intends to retain any future earnings for use in its business and does not anticipate paying any cash dividends on its Common Stock in the foreseeable future. 11 13 CAPITALIZATION The following table sets forth the capitalization of the Company as of June 30, 1995, and as adjusted to reflect the sale of the 2,500,000 shares of Common Stock offered by the Company hereby (at an assumed public offering price of $22 1/2 per share) and the receipt of the estimated net proceeds therefrom by the Company after deducting the estimated underwriting discounts and commissions and offering expenses.
JUNE 30, 1995 --------------------- AS ACTUAL ADJUSTED -------- -------- (IN THOUSANDS) Deferred revenue and other long-term obligations..................... $ 409 $ 409 -------- -------- Stockholders' equity: Common Stock, $0.01 par value, 30,000,000 shares authorized; 12,571,142 shares outstanding actual, 15,071,142 shares outstanding as adjusted(1)...................................... 125 151 Additional paid-in capital......................................... 65,117 117,757 Accumulated deficit................................................ (45,082) (45,082) Treasury shares.................................................... (3) (3) -------- -------- Total stockholders' equity...................................... 20,157 72,823 -------- -------- Total capitalization............................................... $ 20,566 $ 73,232 ======== ========
- --------------- (1) Excludes 1,502,393 shares of Common Stock reserved for issuance upon exercise of outstanding options and an additional 571,972 shares reserved for issuance pursuant to future grants under the Company's stock plans as of June 30, 1995. See Note 5 of Notes to Consolidated Financial Statements. 12 14 SELECTED CONSOLIDATED FINANCIAL DATA The consolidated statement of operations data set forth below for the years ended December 31, 1992, 1993 and 1994 and the consolidated balance sheet data at December 31, 1993 and 1994 are derived from the consolidated financial statements of the Company audited by Arthur Andersen LLP, independent public accountants, which are included elsewhere in this Prospectus. The consolidated statement of operations data set forth below with respect to the years ended December 31, 1990 and 1991 and the balance sheet data at December 31, 1990, 1991 and 1992 are derived from audited financial statements of the Company which are not included in this Prospectus. The statement of operations data for the six months ended June 30, 1994 and 1995 and the balance sheet data at June 30, 1995 have been derived from unaudited financial statements of the Company which are included elsewhere in this Prospectus. Unaudited financial statements include all adjustments (consisting only of normal recurring adjustments) that the Company considers necessary for a fair presentation of the financial information set forth therein, in accordance with generally accepted accounting principles. The results of operations for the six months ended June 30, 1995 are not necessarily indicative of the results for the entire fiscal year. The data set forth below should be read in conjunction with the consolidated financial statements and related notes thereto and "Management's Discussion and Analysis of Financial Condition and Results of Operations" included elsewhere in this Prospectus.
SIX MONTHS ENDED YEAR ENDED DECEMBER 31, JUNE 30, ------------------------------------------------ ----------------- 1990 1991 1992 1993 1994 1994 1995 ------- ------- -------- ------- ------- ------- ------- (IN THOUSANDS, EXCEPT PER SHARE DATA) STATEMENT OF OPERATIONS DATA: Revenues: Product sales................................... $ 5,977 $11,182 $ 9,368 $ 1,092 $ 1,240 $ 940 $ 2,800 Product sales to Alcon, a related party......... -- 1,678 9,566 18,450 13,993 8,067 1,680 Service and other revenues...................... 644 311 1,351 2,532 2,663 1,230 1,995 ------- ------- -------- ------- ------- ------- ------- Total revenues................................ 6,621 13,171 20,285 22,074 17,896 10,237 6,475 ------- ------- -------- ------- ------- ------- ------- Costs and Expenses: Cost of revenues................................ 4,126 8,285 12,551 12,030 10,274 5,250 4,438 Marketing, general and administrative........... 6,034 4,624 6,846 5,272 6,371 2,495 3,916 Research, development and regulatory............ 4,472 2,664 5,445 4,964 7,085 2,978 4,608 Reserve for product line disposition............ -- -- -- -- 1,500 -- -- Purchased research and development.............. -- -- 6,017 -- -- -- -- ------- ------- -------- ------- ------- ------- ------- Total costs and expenses...................... 14,632 15,573 30,859 22,266 25,230 10,723 12,962 ------- ------- -------- ------- ------- ------- ------- Loss from operations.......................... (8,011) (2,402) (10,574) (192) (7,334) (486) (6,487) ------- ------- -------- ------- ------- ------- ------- Other income (expense): Interest income................................. 814 589 767 295 472 206 376 Other income.................................... -- -- 276 76 598 23 82 Interest expense................................ (12) (4) (20) -- -- -- -- Litigation settlement........................... -- -- -- -- -- -- (2,250) ------- ------- -------- ------- ------- ------- ------- Other income (expense), net................... 802 585 1,023 371 1,070 229 (1,792) ------- ------- -------- ------- ------- ------- ------- Net income (loss)................................. $(7,209) $(1,817) $ (9,551) $ 179 $(6,264) $ (257) $(8,279) ======= ======= ======== ======= ======= ======= ======= Net income (loss) per share....................... $ (.94) $ (.22) $ (.98) $ .02 $ (.60) $ (.03) $ (.71) ======= ======= ======== ======= ======= ======= ======= Weighted average number of shares and equivalents outstanding..................................... 7,643 8,214 9,706 10,540 10,372 10,271 11,654 ======= ======= ======== ======= ======= ======= =======
DECEMBER 31, ------------------------------------------------ JUNE 30, 1990 1991 1992 1993 1994 1995 ------- ------- -------- ------- ------- ------- (IN THOUSANDS) BALANCE SHEET DATA: Cash and short-term investments................... $ 4,880 $ 6,823 $ 9,135 $11,847 $11,161 $14,845 Working capital................................... 6,773 7,595 14,003 15,733 11,842 17,788 Total assets...................................... 10,544 25,157 23,033 22,917 20,627 27,344 Deferred revenue and other long-term obligations..................................... 1,619 699 664 659 409 409 Accumulated deficit............................... (19,350) (21,167) (30,718) (30,539) (36,803) (45,082) Stockholders' equity.............................. 5,938 19,603 16,207 18,024 13,993 20,157
13 15 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS BACKGROUND Since its inception, VISX has been engaged in the design and development of proprietary technologies and systems for LVC and has been manufacturing such systems since 1987. In 1994, the Company determined that it was necessary for the Company to strengthen its management as well as to devote increased attention to regulatory affairs and monitoring of activities at clinical trial sites. This determination arose, in part, as the Company became aware of procedural and administrative irregularities at three of the Company's clinical sites following FDA inspections in September 1994, which were conducted as part of the FDA's normal oversight responsibility. The issues raised by the FDA inspections did not involve concerns over patient safety or the efficacy of the VISX System. On November 1, 1994, the Company hired Mark B. Logan as President and Chief Executive Officer to strengthen its executive management. Also in 1995, the Company hired Jordan D. Haller, M.D. as Vice President, Regulatory and Clinical Affairs and retained Marc G. Odrich, M.D. as Medical Monitor to provide additional oversight of clinical trials. As a result of these management changes and increased focus on clinical and regulatory affairs, the Company has increased its expenditures in the regulatory and clinical affairs area. During 1994 and throughout 1995, the Company has undergone a transition from being primarily focused on development and clinical evaluation of the Company's products to a broad-based, market-driven strategy to expand and commercialize the Company's proprietary technology. In May 1995, Elizabeth Davila joined the Company as Executive Vice President and Chief Operating Officer to help implement this new strategy. Until May 26, 1995, Alcon had been a related party to the Company by virtue of its representation on the Company's board of directors. Alcon's representatives did not stand for reelection at the Company's 1995 annual stockholders' meeting, and Alcon is therefore no longer considered a related party to the Company. Certain allegations in pending derivative litigation brought by stockholders of the Company relate to Alcon's marketing of the VISX System. As part of ongoing settlement discussions among representatives of VISX, Alcon and the other participants in the litigation, it is possible that a resolution of the litigation could include a restructuring of the Company's existing relationship with Alcon. See Notes 2 and 3 of Notes to Consolidated Financial Statements and "Business -- Legal Proceedings." In March 1995, the Company introduced a new, streamlined model of the VISX System. On September 29, 1995, the Company received FDA approval of its PMA application for the VISX System for PTK. In addition, the FDA has requested that the Company be prepared to present its PMA application for LVC for treatment of low-level myopia at a meeting of the FDA's Ophthalmic Devices Advisory Panel scheduled for October 20, 1995. RESULTS OF OPERATIONS Six Months Ended June 30,1995 Compared to Six Months Ended June 30,1994 Revenues. Product revenues for the six month period ended June 30, 1995 were $4,480,000, a decrease of 50% from the $9,007,000 in product sales for the six month period ending June 30, 1994. The decline in product revenues in 1995 compared to 1994 is due to a reduced number of international systems sold during the period to Alcon, the Company's exclusive international distributor. In light of market conditions and Alcon's level of inventory, Alcon purchased fewer VISX Systems from the Company during the first six months of 1995 than in the first six months of 1994. Additionally, in connection with the introduction of the new model VISX System, the Company agreed to reduce the distributor price to Alcon during 1995. Service and other revenues for the six month period ended June 30, 1995 were $1,995,000, an increase of 62% over the $1,230,000 in service and other revenues for the six month period ended June 30, 1994, due primarily to a larger installed base of VISX Systems. 14 16 The volumes and terms of purchases by Alcon of VISX Systems are determined from time to time by agreement between Alcon and VISX. International sales to Alcon accounted for 100% of the Company's product sales in the six months ended June 30, 1995, compared to 90% in the six months ended June 30, 1994. Through May 26, 1995, sales to Alcon were reported as "Product sales to Alcon, a related party," and after such date sales to Alcon are reported as "Product sales." See Notes 2 and 3 of Notes to Consolidated Financial Statements. Cost of Revenues. Cost of revenues consists of manufacturing costs, cost of services and warranty expenses. Gross profit as a percentage of revenues was 31% for the six months ended June 30, 1995 and 49% for the six months ended June 30, 1994. Decreased gross profit as a percentage of revenues for the six months ended June 30, 1995 as compared to the six months ended June 30, 1994 reflects lower VISX System sales volume and product transition costs from the Company's prior generation of the VISX System to the new model VISX System. Marketing, General and Administrative Expenses. Marketing, general and administrative expenses were $3,916,000 for the first six months of 1995, an increase of 57% compared to $2,495,000 of marketing, general and administrative expenses in the first six months of 1994. The increase in the first six months ended June 30, 1995 compared to the same period of 1994 primarily reflects increases in staffing and in legal expenses associated with pending litigation. Research, Development and Regulatory Expenses. Research, development and regulatory expenses were $4,608,000 for the first six months of 1995, an increase of 55% compared to $2,978,000 of research, development and regulatory expenses in the first six months of 1994. The increase in the first six months of 1995 compared to the first six months of 1994 primarily reflects increased consulting and regulatory expenses necessary to conduct United States clinical trials, to compile clinical data and to pursue PMA applications filed with the FDA. Other Income (Expense), Net. Other expense, net was $1,792,000 in the first six months of 1995 compared to other income, net of $229,000 in the first six months of 1994. Other expense, net in the first six months of 1995 was due primarily to the settlement (pending court approval) in June 1995 of the securities class action lawsuit against the Company. The net cost of settlement after insurance reimbursement is expected not to exceed $2,250,000. Interest income in the first six months of 1995 increased to $376,000 from $206,000 in the first six months of 1994. The increase in interest income is primarily due to higher average cash and cash equivalent balances. In addition, other income increased as a result of royalty payments from the Company's patent license agreement with Meditec entered into in September 1994. 1994 Compared to 1993 Revenues. Revenues from product sales for 1994 decreased 22% to $15,233,000 from product sales of $19,542,000 in 1993. The decline in product sales in 1994 compared to 1993 is due to a reduced number of international systems sold during the second half of the year to Alcon, the Company's exclusive international distributor. Alcon's inventory of VISX Systems increased in the first half of 1994 and as such Alcon required fewer units from VISX in the second half of the year to satisfy international customer demand. Alcon accounted for 92% of the Company's product sales in 1994, compared to 94% in 1993. Service and other revenues, consisting primarily of customer service revenue, sale of parts for VISX Systems, and sales of VisionKey cards, increased to $2,663,000 in 1994 from $2,532,000 in 1993. The increase is primarily due to increased service revenues and increased sale of parts and accessories due to a larger installed base of VISX Systems internationally and an increase in the number of procedures performed as the installed base of VISX Systems increases. Including revenues from the sale of parts and VisionKey cards, Alcon accounted for 86% and 87% of total revenues in 1994 and 1993, respectively. Cost of Revenues. Cost of revenues for 1994 decreased by 15% to $10,274,000 from $12,030,000 in 1993. The reduction in cost of sales reflects lower material costs due to fewer units shipped during 1994 partially offset by increased costs associated with the product transition to the new model VISX 15 17 System. Gross margins decreased to 43% in 1994 compared to 46% for 1993. The lower margins are due primarily to the lower volume of units shipped during 1994. Marketing, General and Administrative Expenses. Marketing, general and administrative expenses increased by 21% to $6,371,000 in 1994 from $5,272,000 in 1993. The increase in 1994 compared to 1993 primarily reflects increases in patent enforcement expenses, other legal expenses and expenses associated with a reduction in workforce implemented in the third quarter of 1994. Research, Development and Regulatory Expenses. Research, development and regulatory expenses increased by 43% to $7,085,000 in 1994 from $4,964,000 in 1993. The increase in 1994 compared to 1993 primarily reflects increased regulatory expenses necessary to monitor and support United States clinical trials and to manage processing of the Company's PMA applications to the FDA. In 1994, the Company recorded an expense of $1,500,000 for disposition of the model 2015 excimer system product line. The Company determined not to pursue FDA approval of the model 2015 system, discontinued clinical trials of such system as of August 31, 1994 and withdrew the IDEs pursuant to which those trials were conducted. The Company has not manufactured the model 2015 system since 1990. Other Income, Net. Other income, net increased $699,000 in 1994 as compared to 1993 primarily as a result of the Company's patent license agreement with Meditec entered into in September 1994. The license agreement included a payment for past infringement and provides for ongoing royalty payments based upon future sales. 1993 Compared to 1992 Revenues. Revenues from product sales for the year ended December 31, 1993 increased 3% to $19,542,000 from $18,934,000 for the year ended December 31, 1992. The increase in product sales in 1993 compared to 1992 is primarily due to increased sales of VISX Systems to Alcon. Alcon accounted for 94% of the Company's product sales in 1993 compared to 51% in 1992. Service and other revenues, consisting primarily of customer service revenue, sale of parts for VISX Systems, and sales of VisionKey cards, increased to $2,532,000 in 1993 from $1,351,000 in 1992. The increases are primarily due to increased service revenues and increased sale of parts and accessories due to a larger installed base of VISX Systems internationally and an increase in the number of procedures performed as the installed base of VISX Systems increases. Including revenues from the sale of parts and VisionKey cards, Alcon accounted for 87% and 48% of total revenues in 1993 and 1992, respectively. Cost of Revenues. Cost of revenues for 1993 decreased by 4% to $12,030,000 from $12,551,000 in 1992. Gross margins increased to 46% in 1993 compared to 38% in 1992. The increase in gross margins in 1993 reflects increased efficiency as well as lower product costs resulting from the consolidation of VISX-Massachusetts, a laser manufacturer formerly known as Questek, Inc. that was acquired by the Company in 1992 and was the Company's sole supplier of lasers for the VISX System. During 1993 the Company scaled down the operations of VISX-Massachusetts and in December 1993 consolidated all operations of VISX-Massachusetts into its California facility. Marketing, General and Administrative Expenses. Marketing, general and administrative expenses decreased by 23% to $5,272,000 in 1993 compared to $6,846,000 in 1992. The decrease in 1993 compared to 1992 was primarily due to reduced commissions as a result of the Company's shift from direct sales to end-users to international distribution through Alcon and reduced expenses under the marketing agreement with Alcon. Research, Development and Regulatory Expenses. Research, development and regulatory expenses decreased 9% to $4,964,000 in 1993 from $5,445,000 in 1992. The decrease in expenses in 1993 compared to 1992 is primarily due to reduced product development expenses resulting from the transition and consolidation of VISX-Massachusetts into the Company's California facility in December 1993. During 1992, the Company acquired VISX-Massachusetts for approximately $5,932,000 in cash, assumed VISX-Massachusetts' outstanding stock options, and forgave the intercompany balances between VISX and VISX-Massachusetts. The acquisition was accounted for using the purchase method 16 18 of accounting. The Company incurred a charge against earnings of $6,017,000 in 1992, which it allocated to VISX-Massachusetts research and development projects that were in process at the time of the acquisition. Other Income, Net. Other income, net decreased by $652,000 in 1993 as compared to 1992. This decrease reflects lower interest income due to lower average investment balances and lower interest rates in 1993 compared to 1992. LIQUIDITY AND CAPITAL RESOURCES Since its inception, the Company's primary sources of liquidity have consisted of financing from the sale of Common Stock and revenues from the sale of VISX Systems. At June 30, 1995, the Company had $14,845,000 in cash, cash equivalents and short-term investments, compared to $11,161,000 at December 31, 1994. At June 30, 1995, the Company had working capital of $17,788,000 compared with $11,842,000 at December 31, 1994. The ratio of current assets to current liabilities at June 30, 1995 was 3.62 to one, compared to 2.90 to one at December 31, 1994. Cash Flows from Operating Activities. Net cash used for operating activities was $10,014,000 in the first six months of 1995 and was $2,472,000 in 1994, compared to $1,699,000 of net cash provided by operating activities in 1993. The cash flows used for operating activities in the first six months of 1995 and in 1994 primarily reflects the net loss incurred in these periods. In addition, the Company's inventories increased by $1,516,000 in the six months ended June 30, 1995 as a result of planned increases in production. The decrease in accounts receivable in 1994 primarily reflects a lower level of system sales in 1994 to Alcon. Net cash provided by operating activities was $1,699,000 in 1993 compared to cash used for operating activities of $7,991,000 in 1992. The increase in net cash provided by operating activities in 1993 compared to 1992 reflects a higher net income, decreases in receivables, and reduced purchases of raw materials resulting in decreases in inventories in 1993, offset by a decrease in accounts payable and accrued liabilities. The decrease in accounts receivable in 1993 primarily reflects collection of receivables from Alcon. Cash Flows from Investing Activities. Net cash used for investing activities was $8,794,000 in the first six months of 1995 and was primarily due to the purchase of short-term investments. Net cash used for investing activities was $447,000, and $620,000, in 1994 and 1993 respectively, and was due to the purchase of capital equipment. By comparison, in 1992 the Company's net cash provided by investing activities was $5,473,000, including $12,758,000 in proceeds received from the conversion of short and long-term investments to cash and cash equivalents, which was partially offset by $5,932,000 used for the purchase of VISX-Massachusetts and $1,353,000 for the purchase of capital equipment. Cash Flows from Financing Activities. Net cash provided by financing activities in the first six months of 1995 was $14,443,000 and was primarily due to proceeds received from a private placement of 1,200,000 shares of Common Stock. Net cash provided by financing activities in 1994 and 1993 was $2,233,000 and $1,633,000, respectively, and was primarily due to proceeds received from the exercise of stock options and warrants. Cash provided by financing activities was $5,891,000 in 1992 and includes net proceeds of $5,529,000 from the May 1992 public offering of its common stock, and $381,000 from the exercise of stock options. The Company anticipates that its current cash and short-term investments, together with the proceeds of this Offering, will be sufficient to fund operating expenses for at least the next 24 months, including anticipated capital expenditures. The Company expects to continue to fund future operations and related research and development expenses from existing cash and short-term investments, revenues received from the sales of VISX Systems and future financing as required. If the Company were to receive FDA approval to market the VISX System for LVC in the United States, the Company could require additional capital to fund larger-scale manufacturing of the VISX System as well as future product development. There can be no assurance that capital will be available when needed or, if available, that the terms for obtaining such funds will be favorable to the Company or will not result in dilution to the Company's stockholders. 17 19 BUSINESS THE COMPANY VISX is a leader in the design and development of proprietary technologies and systems for LVC, an outpatient surgical procedure to treat refractive vision disorders such as nearsightedness, astigmatism and farsightedness with the goal of eliminating or reducing reliance on eyeglasses and contact lenses. In LVC, a computer-controlled excimer laser ablates, or removes, submicron layers of tissue from the surface of the cornea to reshape the eye, thereby improving visual acuity. Vision correction represents one of the largest medical markets with over 100 million people in the United States experiencing some form of nearsightedness, astigmatism or farsightedness. Industry sources estimate that approximately $13 billion was spent on eyeglasses, contact lenses and other corrective eyewear in the United States in 1994. Vision correction is typically paid for by the individual receiving treatment, and does not rely on reimbursement from governmental or private health care payors. Since its inception in 1985, VISX has been developing a substantial proprietary position in system and application technology relating to the use of lasers for vision correction. The Company's strategy is to commercialize this intellectual property position through (i) per procedure and equipment royalties from Pillar Point at such time as the FDA grants approval for LVC indications, (ii) international use and equipment royalties collected under direct licensing agreements, and (iii) worldwide sales of the VISX System through Alcon, the Company's exclusive marketing partner. REFRACTIVE VISION DISORDERS AND LVC MARKET The human eye is approximately 25 millimeters in diameter and functions much like a camera, incorporating a lens system that focuses light (the cornea and the lens), a variable aperture system which regulates the amount of light passing through the eye (the iris) and a film which records the image (the retina). Images enter the human eye through the cornea. In a properly functioning eye, the cornea bends, or refracts, the incoming images, causing the images to focus on the retina of the eye. Refractive vision disorders are caused by improper curvature of the cornea, which results in the cornea being unable to properly focus the light passing through it. As a result, the viewer perceives a blurred image. Nearsightedness (also known as myopia), astigmatism and farsightedness (also known as hyperopia) are the three most common refractive vision disorders. In a nearsighted eye, images are focused in front of the retina. In an astigmatic eye, images are not focused at any one point. In a farsighted eye, images are focused behind the retina. Currently, eyeglasses or contact lenses are most often used to correct the vision of people with refractive vision disorders. The principal market for LVC is the correction of refractive vision disorders such as nearsightedness, astigmatism and farsightedness. In 1993, industry sources estimated that over 100 million people in the United States used eyeglasses or contact lenses to correct refractive vision disorders. Of these individuals, approximately 60 million are estimated to suffer from nearsightedness, with approximately 90% of nearsighted persons having low-level myopia. The Company estimates that approximately one-fourth of all sufferers of nearsightedness also experience astigmatism and an additional, approximately 23 million people in the United States suffer from astigmatism, but do not experience nearsightedness. United States consumers spent approximately $13 billion in eyeglass, contact lens and other corrective eyewear purchases in 1994. The Company believes that LVC will make it possible for many of these people to eliminate or reduce their reliance on corrective eye wear. In particular, the Company believes that many of the approximately 26 million contact lens users in the United States will be particularly receptive to LVC as they have already chosen to use an alternative to eyeglasses for vision correction. Industry sources estimate that between 250,000 and 300,000 radial keratotomy ("RK") procedures are performed annually in the United States. RK is a surgical procedure in which the ophthalmologist uses a scalpel to make a series of incisions in the cornea with the goal of reshaping the cornea to correct the patient's vision. Because RK is a manual procedure and is not performed with a computer-controlled device, it is highly dependent on the surgical skill of the ophthalmologist 18 20 performing the procedure. In addition, because RK involves incisions into the corneal tissue, it weakens the structure of the cornea which can have adverse consequences as patients age. Furthermore, RK has never undergone a controlled clinical study under an FDA protocol because no medical devices, other than a scalpel, are used in the procedure. The Company believes, based on currently available follow-up data and market trends in countries where LVC is commercially available, that more people will seek vision correction through LVC than through RK because LVC involves reduced surgical risk, does not weaken the corneal tissue, is less invasive and is less dependent on the ophthalmologist's skill. CORNEAL PATHOLOGIES AND PTK MARKET Corneal pathologies include traumatic and congenital defects and diseases of the cornea which result in restricted vision. A number of conditions can cause a clouding or opacification of the cornea, resulting in a loss of visual acuity. A typical treatment of these conditions is a corneal transplant, which involves major surgery, is expensive and is dependent on the availability of a suitable donor cornea as well as on the individual surgeon's skill and experience. Corneal transplants frequently produce irregular corneal surfaces which can compromise the patient's vision. Additional major concerns relating to corneal transplants are the possible transmission of viruses and rejection of the transplanted tissue. Certain corneal pathologies can be addressed with an excimer laser system in a procedure known as PTK. In PTK, submicron layers of tissue are ablated from the surface of the cornea in order to remove diseased, scarred or sight-inhibiting tissue with the principal goal of alleviating the symptoms associated with the corneal pathology. Although PTK is an important medical procedure for people who suffer from corneal pathologies, the market opportunity represented by PTK is significantly smaller than that represented by LVC. BUSINESS STRATEGY The Company's objective is to position LVC as the preferred means of treatment for refractive vision disorders, including nearsightedness, astigmatism and farsightedness, conditions which are now most often addressed with eyeglasses or contact lenses. The Company's strategy encompasses several key elements: - Commercialize Proprietary Technology through Licensing Agreements. The Company will seek to commercialize its proprietary technology through United States per procedure and equipment royalties from Pillar Point at such time as the FDA grants PMA for LVC indications as well as international use and equipment royalties collected under direct licensing agreements. - Increase Worldwide Market Penetration of VISX Products. Internationally, the Company is seeking to increase market penetration of the VISX System through its international distributor, Alcon. In the United States, the Company has commenced commercialization of the VISX System for PTK and intends to introduce the VISX System for LVC applications, subject to FDA approval. Additionally, the Company intends to expand its technology through development of other medical laser technologies and possible acquisition of complementary technologies. - Increase Consumer and Physician Acceptance of LVC. The Company, in cooperation with Alcon, intends to pursue market development by generating awareness regarding LVC among consumers and ophthalmologists. To expand awareness of LVC among the general public in markets entered by the Company, the Company intends to use print and broadcast media advertising, direct mail or other promotional tools. The Company and Alcon sponsor seminars and conferences throughout the year to improve awareness among ophthalmologists and other eye care specialists, including an annual global users meeting regarding LVC and the Company's products. - Expand Clinical Indications for LVC. The Company intends to seek expansion of the number of LVC procedures performed by conducting clinical trials of and pursuing regulatory approval for additional indications. The initial FDA approvals for LVC are expected to be for treatment of low-level nearsightedness which accounts for approximately 90% of the cases of myopia. The 19 21 Company is conducting clinical trials of LVC for the treatment of moderate and severe nearsightedness, astigmatism and farsightedness and intends to seek FDA approval for these indications. - Aggressively Protect United States and International Patent Position. The Company believes that establishment and protection of its intellectual property rights will be important to its long-term success. The Company intends to aggressively enforce its intellectual property rights worldwide. PROCEDURES LVC Procedure. To perform LVC, also known as photorefractive keratectomy or PRK, with excimer lasers, the ophthalmologist determines the exact correction required (which is measured by the same examination used to prescribe eyeglasses or contact lenses) and programs the correction into the excimer laser system's computer. The computer calculates the data needed to make a precise corneal correction which the physician verifies before commencing the laser treatment. The excimer laser system emits laser pulses to ablate submicron (a micron equals 0.001 of a millimeter) layers of tissue from the surface of the cornea in a pattern to reshape the front surface of the cornea. The depth of tissue ablated during the procedure typically is less than one-half of the thickness of a human hair. The average procedure, which lasts approximately 15 to 40 seconds, consists of approximately 150 laser pulses each of which lasts several billionths of a second with cumulative exposure to laser light of less than one second. The entire patient visit, including preparation, application of a topical anesthetic and post-operative dressing, generally lasts no more than 30 minutes. The following diagram illustrates correction of nearsightedness using LVC:
Cornea Flattened Cornea [Diagram of nearsighted [Diagram of formerly eye prior to LVC treatment.] nearsighted eye after LVC treatment.] Incorrect Point Corrected Point of Focus of Focus Before After
Following the procedure, the ophthalmologist may prescribe topical pharmaceuticals to promote corneal healing and alleviate discomfort. Individuals undergoing LVC may experience discomfort for approximately 24 hours, and blurred vision for approximately 48 to 72 hours, after the procedure. Although most patients experience improvement in uncorrected vision within a few days of the procedure, it generally takes from two to six months for the correction to stabilize and for the full benefit of the procedure to be realized. An individual typically has one eye treated in a session, with the second eye treated three to six months later. The LVC procedure described above can be performed using a number of manufacturers' excimer laser systems, including the VISX System. However, the VISX System incorporates several advanced technological features that permit treatment of hyperopia as well as simultaneous treatment of myopia and astigmatism, including a proprietary adjustable iris and proprietary software. The Company has been engaged in United States clinical trials of the VISX System under an IDE issued by the FDA for treatment of low-level nearsightedness with LVC since 1988. The Company has filed a PMA application for treatment of nearsightedness with the FDA. The FDA has requested that the Company be prepared to present its PMA application for LVC for treatment of low-level myopia at a meeting of the FDA's Ophthalmic Devices Advisory Panel scheduled for October 20, 1995. There can be no assurance that such panel review will take place or that the outcome of such review will be 20 22 favorable. The Company has also conducted United States clinical trials for LVC with the VISX System to treat individuals with moderate and severe myopia, astigmatism and farsightedness. PTK Procedure. PTK is an outpatient surgical procedure to treat corneal pathologies. In this procedure, submicron layers of tissue are ablated from the surface of the cornea to remove diseased, scarred or sight-inhibiting tissue. The Company estimates that VISX Systems have been used worldwide to perform approximately 10,000 PTK procedures. On September 29, 1995, the Company received FDA approval of its PMA application for the VISX System for PTK. As a result, the Company has commenced commercial sales of VISX Systems in the United States for this indication. LASIK Procedure. Another procedure that can be performed with excimer laser systems is laser in situ keratomileusis ("LASIK"). LASIK is a variation of a non-laser technique in which a knife, or microkeratome, is used to open a flap on the surface of the cornea. Laser energy is then used to ablate corneal cells on the exposed surface to improve the person's visual acuity, and the flap is then folded back into place. VISX Systems are being used for LASIK in several international markets. The Company has not commenced clinical trials involving use of the VISX System for LASIK in the United States. PRODUCTS VISX System. The VISX System is a fully integrated unit incorporating an excimer laser and a computer-driven workstation for use by an ophthalmologist. The system is designed to enable an ophthalmologist to perform LVC and PTK after a brief training program. The VISX System automatically varies the diameter of the laser beam using a sophisticated optical delivery system that provides temporal and spatial integration of an excimer laser beam through an adjustable, mechanical iris. In March 1995, the Company introduced a streamlined model of the VISX System which currently has an international end-user list price of approximately $500,000. This system is functionally equivalent to the prior model, but is one-half its size, easier and more economical to operate, and is capable of treating farsightedness in addition to nearsightedness and astigmatism. Excimer lasers ablate tissue without generating the heat associated with many other types of lasers that use different wavelengths which can result in unintended thermal damage to surrounding tissue. The excimer laser operates in the ultraviolet spectrum and acts on the surface of the cornea without any measurable effect in the interior of the cornea, which is approximately 500 microns thick, or the other parts of the eye. VisionKey Card. The use of the VISX System is controlled by a proprietary optical memory card, the VisionKey card, which is sold separately and is encoded with proprietary software required to operate the VISX System. Approximately 30 VISX Systems still in the field have not been retrofitted to include the VisionKey card system. Additionally, the VisionKey card provides the user with access to software upgrades and can facilitate the collection of patient data. One VisionKey card must be used with each procedure performed, and therefore sales of the VisionKey card correlate to the number of procedures performed, except for those procedures performed with units that have not been retrofitted to include the VisionKey card system. The price charged per card varies based on the package of services and materials programmed onto the VisionKey card provided to the user. The percentage of VISX revenues received from sales of the VisionKey card is expected to vary based upon demographics and other site-specific considerations, as well as the competitive and marketing position of the Company and Alcon. CLINICAL TRIALS AND RESULTS The first LVC procedure for the treatment of nearsightedness was performed in the United States in 1987 and the first PTK procedure for the treatment of a corneal pathology was performed in 1988. To date, over 200 VISX Systems have been shipped, and the Company estimates that over 250,000 eyes have been treated with the installed base of VISX Systems in over 30 countries. In the United States, 21 23 most LVC and PTK procedures have been performed using excimer lasers during clinical trials conducted only in the past four years under IDEs approved by the FDA. The Company has sponsored clinical trials in the United States for low-level myopia on 1,610 eyes. According to two-year follow-up data accumulated by the Company during these trials, all persons undergoing LVC experienced an improvement in visual acuity without corrective eyewear. Of the eyes treated in these trials, approximately 86% were 20/200 or worse and approximately 94% were 20/100 or worse prior to treatment. Approximately 93% of the eyes treated in these trials improved to 20/40 or better, the legal requirement to obtain a driver's license in most states without corrective eyewear. VISX Systems are currently in 19 clinical investigational sites in the United States. FDA guidelines prescribe four phases of clinical testing for excimer refractive surgical systems. During Phase I, the device manufacturer conducts feasibility studies to confirm design and operating parameters. During Phase IIA, the manufacturer attempts to rule out major safety risks and assure reasonable stability of results and may make major modifications to the device and protocol. During Phase IIB, the manufacturer attempts to rule out major safety risks and further assure reasonable stability and predictability of results in a larger patient population and may make minor modifications to the device and protocol. During Phase III, the manufacturer provides reasonable safety and efficacy assurances of the final device to be submitted for PMA. The Company is in various clinical trial stages for PTK and LVC indications with the VISX System. On September 29, 1995, the FDA approved the Company's PMA application for PTK for treatment of corneal pathologies. LVC indications under trial include low-level myopia (-6 or less diopters of correction), mild myopia (greater than -6 and less than -10 diopters of correction), severe myopia (more than -10 diopters of correction), astigmatism and hyperopia. The Company has completed Phase III trials and has submitted a PMA application to the FDA for low-level myopia. VISX has completed Phase IIA and IIB trials for astigmatism and has completed Phase I trials for hyperopia. The Company's clinical trials for moderate and severe myopia are ongoing. PILLAR POINT PARTNERS AND OTHER LICENSING AGREEMENTS Pillar Point Partners. On June 3, 1992, VISX and Summit entered into the Pillar Point Agreement by virtue of which all then pending issues between Summit and VISX regarding the ownership and use of their respective United States patents for performing ultraviolet laser corneal surgery were settled. Under the agreements, each of Summit and VISX exclusively licensed to Pillar Point, a partnership consisting of entities controlled by VISX and Summit, their respective rights under patents previously issued to them covering apparatus and methods for performing ultraviolet laser corneal surgery. The Pillar Point Agreement also provides that any patent covering apparatus and methods for performing ultraviolet laser corneal surgery which is issued after the date of the Pillar Point Agreement to either party with respect to patent applications filed, or which claim a priority date, at any time prior to June 3, 1993, will automatically be contributed to Pillar Point at no additional cost. The Pillar Point Agreement also contains provisions requiring VISX and Summit to offer to the Partnership certain after-acquired precluding patents more particularly defined in the Pillar Point Agreement regardless of when issued. Pillar Point has licensed to each of VISX and Summit, on a nonexclusive basis, the rights to the inventions covered by the patents described above. It is also contemplated that Pillar Point will grant licenses to other qualified third parties. Under the Pillar Point Agreement, Pillar Point will be paid certain per procedure and equipment royalties by VISX and Summit. This revenue, net of applicable expenses, and any other revenue of Pillar Point, will be shared between VISX and Summit in accordance with the provisions of the Pillar Point Agreement. 22 24 The Pillar Point Agreement provides that the per procedure royalty charged by Pillar Point will be fixed at the highest amount proposed by VISX or Summit, up to $250 per procedure. Summit has announced that it intends to propose $250 as the initial per procedure LVC royalty. Profits realized from per procedure royalties from LVC procedures using an excimer laser with an adjustable iris (the only type of system approved by, or for which PMA applications have been filed with, the FDA) are allocated 56% to VISX and 44% to Summit assuming a $250 per procedure royalty. Pillar Point profits realized from receipt of PTK per procedure royalties are allocated 51% to VISX and 49% to Summit. However, Pillar Point has decided not to charge any per procedure royalties for PTK at this time. In addition, VISX and Summit are required to pay Pillar Point royalties of 6% for sales of excimer laser systems using an adjustable iris (excimer laser systems owned by VISX or Summit generally are not subject to royalties). Profits from royalties on such sales paid to Pillar Point are allocated entirely to VISX. If and when manufacturers other than VISX and Summit obtain FDA approval for excimer laser systems, profits from royalties received as a result of the sale of their equipment would be allocated 50% to VISX and 50% to Summit. The Pillar Point Agreement has been challenged as, among other things, a misuse of patents in litigation involving LaserSight. Any successful challenge to the structure and operation of Pillar Point could have a material adverse effect on the Company's business, financial condition and result of operations. See "Risk Factors -- Risks Relating to Pillar Point Partners." Other Licensing Agreements. In September 1995, VISX entered into a license agreement with Chiron and extended its agreement, originally entered into in 1994, with Meditec. Under these agreements, the Company will receive royalties for sales and use of Chiron and Meditec equipment in Canada and will receive equipment royalties on all other international sales. Chiron and Meditec are two of the largest manufacturers of excimer lasers for eye care applications in international markets. In March 1992, the Company and IBM signed a license agreement that grants the Company nonexclusive rights under United States and foreign IBM patents that include claims that cover ultraviolet laser technology for removal of human tissue. VISX has agreed to pay a royalty of 2% of the net sales price of VISX Systems made, used, sold or otherwise transferred by or for VISX in the United States, Canada, Japan, Australia, Brazil and Spain. The Company also has entered into a nonexclusive, worldwide license agreement with Patlex Corporation which holds certain patents on lasers. Under this agreement, the Company pays a royalty on certain laser components of the VISX System. MARKETING, SALES AND DISTRIBUTION Alcon, one of the world's largest eye care speciality companies with annual sales in excess of $1.5 billion and distribution in over 120 countries, serves as the Company's exclusive international distributor and has exclusive domestic sales and marketing rights. International Sales and Marketing Strategy. Unless and until the FDA grants approval for an LVC system in the United States, VISX will be dependent upon international sales of VISX Systems by Alcon for a major portion of its revenues. The volume and terms of any purchases of VISX Systems by Alcon for resale in the international market are currently determined by agreement between Alcon and VISX from time to time. Alcon currently purchases VISX Systems from the Company and resells the purchased systems in the international market. Alcon markets directly to individual ophthalmologists, ophthalmic clinics and hospitals and its strategy is to provide the ophthalmologist with a full range of ophthalmology products and services. The international agreement will remain in effect until the expiration of the last patent licensed to Alcon under the international agreement which patents expire in years ranging from 2004 to 2011, subject to extension if patents are issued under certain pending patent applications. Domestic Sales and Marketing Strategy. Alcon has exclusive sales and marketing rights for the VISX System in the United States. As a result of the Company's PMA for PTK, Alcon has commenced United States commercialization for this indication. The VISX System cannot be marketed in the 23 25 United States for LVC unless and until a PMA for LVC is received. The domestic marketing agreement with Alcon obligates the Company to reimburse Alcon for certain budgeted marketing expenses. The agreement also contains provisions obligating VISX to repay to Alcon certain funds advanced by Alcon for development of the VISX System and enables Alcon, under certain circumstances, to receive 25% of VISX's excess cash flow, as defined in the marketing agreement. To date, no payments have accrued or become due and payable by VISX under such provisions. The Company's agreements with Alcon require the Company to indemnify Alcon and its affiliates for damages, up to an aggregate of $4.0 million, arising out of certain potential claims, including personal injury and patent infringement claims. See Note 3 of Notes to Consolidated Financial Statements and "-- Legal Proceedings." The marketing agreement provides a mechanism for approval of marketing costs, formulation of operating and marketing strategy for the VISX System, and establishment of minimum unit volume and market share sales targets. The marketing agreement will remain in effect until the expiration of the last patent licensed to Alcon under the marketing agreement, which patents expire in years ranging from 2004 to 2011, subject to extension if patents are issued under certain pending patent applications. VISX may terminate the marketing agreement, subject to certain limitations, if Alcon fails to meet sales targets for specified time periods. Alcon can terminate the marketing agreement if any of VISX's patent rights are found to be invalid or unenforceable in the United States and under certain other specified circumstances. As part of ongoing settlement discussions among representatives of VISX, Alcon and the other participants in VISX's pending shareholder derivative litigation, it is possible that the resolution of such litigation could include a restructuring of the existing relationship. See "-- Legal Proceedings." In the United States, there are over 15,000 ophthalmologists, including those practicing individually and in groups, in eye care centers and in ophthalmology clinics. Alcon markets directly to individual ophthalmologists, ophthalmic clinics and hospitals, and its strategy is to provide the ophthalmologist with a full range of ophthalmology products and services. The Company and Alcon sponsor seminars and conferences throughout the year to improve awareness among ophthalmologists and other eye care specialists LVC, including an annual global users meeting regarding LVC and the Company's products. To expand awareness of LVC among the general public in markets entered by the Company, the Company intends to use print and broadcast media advertising, direct mail or other promotional tools. PATENTS AND PROPRIETARY RIGHTS Protection of proprietary technology is important to the Company's business. VISX holds over 100 United States and foreign patents, including patents licensed to Pillar Point by VISX. VISX believes that its patents provide a substantial proprietary position in system and application technology relating to the use of lasers for vision correction. In addition, the Company has several pending patent applications in the United States and in foreign countries. There can be no assurance that the United States patent rights held by Pillar Point or international patents held by VISX will afford any significant degree of protection or provide the Company with a competitive advantage. In particular, there can be no assurance that any such patents will not be challenged, invalidated or circumvented in the future, either in the United States or internationally. Failure to maintain the protection afforded by the patents held by Pillar Point and the Company's international patents would have a material adverse effect on the Company's future revenues and ability to become profitable. Further, there can be no assurance that the patents held by Pillar Point or the Company's international patents will ultimately be found to be valid or enforceable, or that the Company's patent rights will deter others from developing substantially equivalent or competitive products. The medical device industry including the ophthalmic laser sector, has been characterized by substantial litigation, both in the United States and internationally, regarding patents and proprietary rights. The Company is engaged in several pending patent proceedings, both in the United States and internationally. In the United States, Summit sued the Company for infringement of a patent held by Summit and not licensed to Pillar Point. Internationally, the Company has filed actions alleging 24 26 infringement of its patents against certain parties in Canada, is involved in opposition proceedings challenging the issuance of certain patents in the EPO and has filed an action alleging patent infringement against a company in Germany. For additional detail regarding these patent proceedings, see "-- Legal Proceedings." There can be no assurance that additional patent infringement claims in the United States or in other countries will not be asserted against VISX by Summit (limited in the United States to patent rights not included in Pillar Point) or others, or, if asserted, that VISX will be successful in defending against such claims. Furthermore, it may be necessary for Pillar Point or VISX to undertake additional infringement actions against others. Infringement actions by the Company in the United States fall within the scope of the Pillar Point Agreement, although the Company would have the right to pursue such actions if Pillar Point declined to do so. The defense and prosecution of patents is costly and involves substantial commitments of management time. Adverse determinations in patent proceedings to which the Company currently is or may become a party could subject the Company to significant liabilities to third parties and require the Company to seek licenses from third parties. Although patent and intellectual property disputes in the medical device area have often been settled through licensing or similar arrangements, costs associated with such arrangements may be substantial and could include ongoing royalties. Furthermore, there can be no assurance that necessary licenses would be available to the Company on satisfactory terms or at all. Accordingly, an adverse determination in a judicial or administrative proceeding or failure to obtain necessary licenses could prevent the Company from manufacturing and selling its products in one or more markets, which would have a material adverse effect on the Company's business, financial condition and results of operations. In addition, the Company's marketing agreement is terminable if any of the Company's patent rights is found to be unenforceable or invalid in the United States, which could adversely affect the marketing of the VISX System. See "-- Legal Proceedings." The Company also seeks to protect its proprietary technology, in part, through proprietary confidentiality and nondisclosure agreements with employees, consultants and other parties. The Company's confidentiality agreements with its employees and consultants generally contain industry standard provisions requiring such individuals to assign to the Company without additional consideration any inventions conceived or reduced to practice by them while employed or retained by the Company, subject to customary exceptions. There can be no assurance that proprietary information agreements with employees, consultants and others will not be breached, that the Company would have adequate remedies for any breach or that the Company's trade secrets will not otherwise become known to or independently developed by competitors. GOVERNMENT REGULATION United States. Ophthalmic excimer lasers such as the VISX System are considered medical devices, and as such are subject to regulation by the FDA under the FDC Act and by similar agencies outside the United States. Medical devices are classified by the FDA into class I, II or III on the basis of the controls necessary to reasonably ensure their safety and effectiveness. Class III devices, such as the VISX System, are subject to the most stringent form of regulation and oversight and cannot be marketed for commercial sale in the United States until the FDA grants a PMA for the device. To obtain a PMA for a medical device, the Company must file a PMA application that includes clinical data and the results of pre-clinical and other testing sufficient to show that there is a reasonable assurance of safety and effectiveness of the VISX System for its intended conditions of use. Human clinical studies may be conducted only under an FDA-approved IDE and must be conducted in accordance with FDA regulations. In addition to the results of clinical trials, the PMA application includes other information relevant to the safety and efficacy of the device, a description of the facilities and controls used in the manufacturing of the device, and proposed labeling. After the FDA accepts a PMA application for filing, and after the FDA's review of the application, a public meeting is held before an FDA advisory panel in which the PMA is reviewed and discussed. The panel then issues a favorable or unfavorable recommendation to the FDA or recommends approval with conditions. Although the FDA is not bound by the panel's recommendations, it tends to give them significant weight. 25 27 On September 29, 1995, the Company received FDA approval of its PMA application for the VISX System for PTK. Additionally, the FDA has requested the Company to be prepared to present its PMA application for LVC for treatment of low-level myopia at a meeting of the Ophthalmic Devices Advisory Panel scheduled for October 20, 1995. The advisory panel review could, however, be changed or rescheduled, and, accordingly, there can be no assurance that panel review will be held on such date or as to the action that the panel will take. If the panel issues an unfavorable recommendation, the FDA could require the Company to design and conduct new clinical trials, modify the device or undertake other actions in connection with the Company's PMA application. Accordingly, an adverse recommendation by such panel will significantly increase the time and expense required for the Company to obtain a PMA for the VISX System for LVC and will substantially increase the likelihood that the Company will never be able to obtain such approval. If the panel recommendation is favorable, the FDA will continue its review of the Company's PMA application, particularly in light of any observations or recommendations made by the panel. A favorable panel recommendation will not assure receipt of PMA, and the time frame required to obtain a PMA following the panel recommendation may be significant. Accordingly, there can be no assurance as to when or whether the Company will receive approval of its PMA application for the VISX System for LVC. The failure to receive such PMA could have a material adverse effect on the Company's business, financial condition and results of operations. Should the FDA grant a PMA for an excimer laser system for LVC, it is possible that the FDA would limit the classes of patients who could be treated, such as those having specific vision defects or pathologies. Such limitations could reduce the potential patient population in the United States, which could therefore result in reduced per procedure royalties to Pillar Point and, in turn, reduced partnership allocations to the Company. In addition, if the Company receives PMA for the VISX System for LVC, it will be necessary for the Company to seek additional regulatory approvals, through either additional PMA applications or supplements to existing PMA applications, for additional indications for the VISX System. There can be no assurance that any such approvals would be obtained on a timely basis, or at all. The failure to receive such PMAs could have a material adverse effect on the Company's business, financial condition and results of operations. In 1990, the FDA issued a draft guideline outlining the type of clinical data it expects applicants to present in PMA applications for excimer laser refractive surgical systems and the nature of the clinical trials necessary to obtain such data. The draft guideline defined four phases of clinical testing for excimer laser refractive surgical systems. The Company's clinical trials are being conducted in accordance with the FDA's draft guideline. In June 1995, the FDA promulgated a draft proposal "FDA Guidance for Photorefractive Keratectomy Laser Systems: IDE Studies and PMA Applications." The proposal, which would add substantial additional requirements, is intended to supersede prior draft guidelines promulgated by FDA in 1990 but never finalized. In July 1995, at a public hearing regarding the draft proposal, the FDA and the Ophthalmic Devices Advisory Panel heard recommendations from various industry sources. It is uncertain as to whether the FDA will accept all or any of the recommended changes to the draft proposal. FDA implementation of some or all of the recommendations could, particularly if such implementation is retroactive, require the Company to submit additional clinical data, including data not collected in the Company's United States clinical trials. Such implementation could therefore substantially delay receipt of PMA for the VISX System for LVC and increase the likelihood that the Company will not be able to obtain such approval. Other Government Regulation. Products manufactured or distributed by the Company pursuant to a PMA will be subject to pervasive and continuing regulation by the FDA. Failure to comply with applicable regulatory requirements can result in, among other things, warning letters, fines, suspensions or delays of approvals, seizures or recalls of products, operating restrictions or criminal prosecutions. The FDC Act also requires the Company to manufacture its products in registered establishments and in accordance with FDA's GMP regulations and to list its devices with the FDA. The Company's manufacturing facilities have undergone GMP compliance inspections conducted by the FDA. As a condition to receipt of PMA approval, the Company's facilities, procedures and practices will be subject to additional pre-approval GMP inspections and thereafter to ongoing, periodic GMP 26 28 inspections by the FDA. These GMP regulations impose certain procedural and documentation requirements upon the Company with respect to manufacturing and quality assurance activities. The FDA has proposed amendments to the GMP regulations that will likely increase the cost of compliance with GMP requirements. Labeling and promotional activities are subject to scrutiny by the FDA and, in certain instances, by the Federal Trade Commission. Current FDA enforcement policy prohibits the marketing of approved medical devices for unapproved uses. Changes in existing regulatory requirements or adoption of new requirements could have a material adverse effect on the Company's business, financial condition and results of operations. There can be no assurance that the Company will not be required to incur significant costs to comply with laws and regulations in the future or that laws and regulations will not have a material adverse effect upon the Company's business, financial condition and results of operations. VISX is also regulated under the Radiation Control for Health and Safety Act, which requires laser products to comply with performance standards, including design and operation requirements, and manufacturers to certify in product labeling and in reports to the FDA that their products comply with all such standards. The law also requires laser manufacturers to file new product and annual reports, maintain manufacturing, testing and sales records, and report product defects. Various warning labels must be affixed and certain protective devices installed, depending on the class of the product. In addition, VISX is subject to California regulations governing the manufacture of medical devices, including an annual licensing requirement, and VISX's facilities have been inspected by, and are subject to ongoing, periodic inspections by, California regulatory authorities. Sales, manufacture and further development of the VISX System also may be subject to additional federal regulations pertaining to export controls and environmental and worker protection, as well as to state and local health, safety and other regulations that vary by locality, which may require obtaining additional permits. The impact of such regulations cannot be predicted. International. Many countries outside the United States do not impose safety and efficacy testing and regulatory approval requirements for medical laser systems. International regulatory requirements vary by country and there can be no assurance that VISX will receive additional international regulatory approvals or meet requirements for ongoing commercial sales, or as to the associated cost or delay. Failure to receive approval in, or meet the requirements of, any country would prevent the Company from selling its products in that country, which could adversely affect the Company's results of operations. In Europe, the member countries of the European Union have promulgated rules which require that medical products receive by mid-1998 the certifications necessary to affix the CE mark to the device. The CE mark is an international symbol of adherence to quality assurance standards and compliance with applicable European medical device directives. Certification under the ISO 9000 series of standards for quality assurance and manufacturing processes is one of the CE mark requirements. The Company is implementing policies and procedures to enable it to achieve ISO 9000 qualification within the required time frame. In Japan, sales of VISX Systems are limited until such time as the Company receives additional regulatory approvals. MANUFACTURING, COMPONENTS AND RAW MATERIALS VISX purchases the various components of the VISX System and assembles them at its California facility. The manufacture of VISX Systems is a complex operation involving numerous procedures and the completed system must pass a series of quality control and reliability tests prior to shipment. The Company purchases from various independent suppliers many components that are either standard or built to the Company's proprietary specifications. In addition, the Company contracts with third parties for the manufacture or assembly of certain components. Several of these components are currently provided by a single vendor. If any of these suppliers were to cease providing components to the Company, the Company would be required to locate and contract with a substitute supplier, and there can be no assurances that such substitute supplier could be located and qualified in a timely 27 29 manner, or could provide required components on commercially reasonable terms. A failure to increase production volumes in a cost-effective or timely manner or an interruption in the manufacturing of VISX Systems could have a material adverse effect on the Company's business, financial condition and results of operations. COMPETITION The medical device and ophthalmic laser industries are subject to intense competition and technological change. LVC for treatment of refractive vision disorders competes with eyeglasses, contact lenses and RK, as well as with other technologies and surgical techniques currently under development, such as corneal implants and surgery using different types of lasers. In the United States, the Company believes that it and Summit are the leading manufacturers of LVC systems. In September 1995, Summit announced that it received an approvable letter from FDA for its PMA application for LVC for treatment of nearsightedness. Summit has indicated that it believes the approvable letter positions Summit to receive FDA approval to market its LVC system for treatment of nearsightedness by the end of 1995. An LVC approval would enable Summit to commence commercial sale of its laser system for LVC in the United States prior to the Company, which, although the Company would receive per procedure and equipment royalties through Pillar Point, would afford Summit a competitive advantage with respect to equipment sales. The Company's principal international competitors are Chiron and Meditec, both of whom have received licenses from VISX and are obligated to pay VISX royalties on system sales. Use of the VISX System for PTK to treat corneal pathologies competes with corneal transplants, surgery and drug treatments. The VISX System also competes with products marketed or under development by other laser and medical equipment manufacturers, many of which may have greater financial and other resources than the Company. Additionally, competitors, both in the United States and abroad, may enter the excimer laser manufacturing business or acquire existing companies. Such competitors may be able to offer their products at a lower cost or may develop procedures that involve a lower per procedure cost. Competition from new entrants may be particularly prevalent in those countries where significant regulatory approvals are not required. In addition, medical companies, academic and research institutions and others could develop new therapies, including new medical devices or surgical procedures, for the conditions targeted by the Company, which therapies could be more medically effective and less expensive than LVC, and could potentially render LVC obsolete. Any such developments could have a material adverse effect on the business, financial condition and results of operations of the Company. RESEARCH AND DEVELOPMENT The Company intends to remain a leader in the development of state-of-the-art laser technologies for the treatment of ophthalmic disorders. Toward this end, the Company incurred research and development expenses, including clinical trial expenses, of $5.4 million, $5.0 million and $7.1 million during the years ended December 31, 1992, 1993 and 1994, respectively. The Company expects to continue spending significant amounts in research and development for the foreseeable future. PRODUCT LIABILITY AND INSURANCE VISX maintains a "claims made" product liability insurance policy in the amount of $4.0 million, which represents the maximum payout for all claims that could be made during an annual policy period. At such time as the VISX System is marketed commercially in the United States, the Company may require broader coverage in greater amounts. The inability of the Company to maintain adequate insurance coverage at any time could, in the event of product liability or other claims in excess of the Company's insurance coverage, have a material adverse effect on the Company's business, financial condition and results of operations. Additionally, VISX has agreed to indemnify certain medical institutions where research was sponsored by the Company and certain of the medical institutions participating in the Company's clinical studies. 28 30 EMPLOYEES As of June 30, 1995, VISX had 116 full-time employees, 25 temporary employees and 9 consultants. Of the full-time employees, 51 are employed in manufacturing and service, 43 in research and development and regulatory, and 22 in general administrative and marketing positions. None of VISX's employees is covered by a collective bargaining agreement. The Company believes that its relations with its employees are good. FACILITIES VISX's operations are located in a 52,000 square foot leased facility in Santa Clara, California. The facility is leased through September 1997, with a five-year renewal term at the option of the Company. VISX also has a right of refusal to lease an additional 52,000 square feet directly above the space currently leased by the Company. The Company believes its facilities are sufficient to meet its current and reasonably anticipated future requirements. See Note 7 of Notes to Consolidated Financial Statements. LEGAL PROCEEDINGS Patent Proceedings and Litigation The Company is a party to a number of patent related legal proceedings in the United States and in several international jurisdictions. Adverse determinations in one or more of such proceedings could limit or restrict the Company from manufacturing, marketing or selling its products in certain markets, limit the Company's ability to collect use and equipment royalties in certain markets and have a material, adverse effect on the Company's business, financial condition and results of operations. These proceedings are discussed separately below. Canada. In February 1994, the Company filed suit in the Federal Court of Canada against Nidek Co., Ltd. and its Canadian distributor for infringement of three of VISX's Canadian patents. In August 1994, the Canadian trial court dismissed most of Nidek's counterclaims against VISX, and Nidek has appealed this dismissal. The Nidek appeal does not stay or delay the trial of VISX's claims against Nidek. In July 1995, the Company notified Chiron, LaserSight, Meditec, Nidek and Summit, and all of the doctors known to be using their equipment in Canada, that such manufacturers' products infringe VISX's Canadian patents. The Company offered all such manufacturers the opportunity to take a license in Canada. The Company entered into license agreements for Canada with Chiron and Meditec. The Company's offer to enter into license agreements expired on September 1, 1995, and on September 5, 1995, the Company filed lawsuits in Canada against LaserSight, Summit and their respective customers. The Company has also taken action in Canada to add Nidek's customers to the lawsuit already pending there between the Company and Nidek. The Company is seeking injunctive relief and unspecified money damages against all defendants in Canada. The Canadian actions other than the Nidek proceedings are in the pleading stage. Europe. In 1993, both Carl Zeiss GmbH and Summit filed oppositions to several of VISX's European patents before the EPO. The Company has filed written submissions in response to these oppositions. The EPO has set October 17, 1995 for oral hearings in the first of these oppositions; no date has been set for the remaining oppositions. Due to the nature of the patent opposition process (in which claims can be reworded to overcome the opposition), it is impossible to predict the outcome of these opposition proceedings. In August 1995, the Company sued Herbert Schwind GmbH in Germany, alleging infringement of certain of the Company's European patents. In addition, Schwind has filed a nullity action in Germany against one of VISX's European patents. Although the Company believes it will prevail in this nullity action, there can be no assurance that such patent will survive the proceeding. Azema Patent. On August 30, 1995, Summit sued the Company in the United States for infringement of a United States patent held by Summit. Summit acquired the rights to the patent in 1993, and Pillar Point did not acquire rights to the patent from Summit. The lawsuit claims that the manufacture and export of VISX Systems from the United States is an infringement of the patent. The Company believes that the lawsuit is without merit and intends to vigorously defend its position. 29 31 Nevertheless, the cost of defending this action could be significant, and there can be no assurance that the VISX System will be held not to infringe the patent. In such event, the Company could be subject to significant liabilities to Summit and it could be necessary for the Company to seek a license from Summit in order for the Company to manufacture, market and sell products in the United States. There can be no assurance that a license would be available on acceptable terms or at all. It might also be necessary for the Company to attempt to redesign the VISX System so that it no longer infringes the patent, although there can be no assurance that any such redesign efforts would be successful. Additionally, a redesign of the VISX System, depending on its scope, could entail delays in FDA approval of the redesign. Stockholder Derivative Litigation In September 1994, an action was filed as a derivative action on behalf of the Company by CAP Advisers Limited, CAP Trust and Osterfak Limited (collectively, the "CAP Group"), who collectively owned in excess of 10% of the Company's outstanding Common Stock at the time the action was filed. The action names as defendants several former officers of the Company, present and former directors of the Company including representatives of Alcon, and Alcon and certain of its affiliates. The suit alleges, among other things, breaches of fiduciary duties involving the failure to exercise appropriate oversight over regulatory affairs and the Alcon marketing agreement by the named individual defendants including the Alcon representatives as well as breaches of certain of Alcon's marketing obligations under the Company's agreements with Alcon, and seeks monetary damages in excess of $2.25 billion from Alcon and the named individual defendants. Alcon has filed counterclaims against the CAP Group and the named individual defendants (other than the Alcon representatives) and two former directors of the Company not named in the original suit for interference with the Company's contractual relationship with Alcon. Alcon and the named individual defendants have also filed counterclaims against such two former directors for equitable indemnification and contribution. Because this action is a derivative suit, any recovery of monetary damages would be for the benefit of the Company. However, the Company has certain obligations to indemnify its officers and directors in the event of litigation, and, as a result, the Company has incurred and expects to continue to incur significant legal expenses in connection with the derivative litigation. The Company believes that the resolution of this matter will not have a material adverse effect on the Company's financial position or results of operations. However, this suit is currently in the pleading stage, and there can be no assurance as to the outcome of the litigation. Product Liability VISX requires all clinical investigators to advise persons treated in United States clinical trials that the procedure is investigational and has not been determined to be safe or effective by the FDA and requires that signed consents be obtained prior to treatment. Notwithstanding these requirements, three individuals who were treated in United States clinical trials of the VISX System have sued their ophthalmologists and VISX following their surgery. These suits are currently pending in Michigan, New Jersey and Pennsylvania. VISX believes that it has meritorious defenses to these actions, and that their resolution will not have a material adverse effect on the Company's financial position or results of operations. However, all three suits are in the early stages of discovery and there can be no assurance as their outcome. Securities Class Action Litigation In September 1994, various actions were filed in United States District Court against the Company and several former and current directors and officers of the Company alleging violations of federal securities laws involving the issuance of misleading statements and failure to make required disclosures regarding the Company's prospects and the FDA regulatory status of the VISX System. These actions were subsequently consolidated into a single class action. In June 1995, the Company reached a settlement (pending court approval) of the securities class action lawsuit against the Company. The net cost of settlement after insurance reimbursement is expected not to exceed $2,250,000. 30 32 MANAGEMENT The executive officers and directors of the Company are as follows:
NAME AGE POSITION - ----------------------------- --- --------------------------------------------------------- Mark B. Logan................ 57 Chairman of the Board, Chief Executive Officer and President Elizabeth H. Davila.......... 51 Executive Vice President, Chief Operating Officer Katrina J. Church............ 34 Vice President, General Counsel and Secretary Terrance N. Clapham.......... 48 Vice President, Research and Development Jordan D. Haller, M.D. ...... 63 Vice President, Regulatory and Clinical Affairs Timothy R. Maier............. 47 Vice President, Chief Financial Officer Judith A. Somerville......... 52 Vice President, Human Resources W. Michael Wilson............ 51 Vice President, Operations Glendon E. French............ 61 Director Robert B. Samuels............ 55 Director Richard B. Sayford........... 64 Director
Mark B. Logan. Mr. Logan has served as Chairman of the Board, President and Chief Executive Officer of the Company since November 1994. From January 1992 to July 1994, Mr. Logan was Chairman of the Board, President and Chief Executive Officer of Insmed Pharmaceuticals, Inc., a development-stage biopharmaceutical company, and has served on its board of directors since its founding in 1988. Prior to 1992, Mr. Logan was a Principal Associate with McManis Associates, Inc., a Washington, D.C. based research and management firm specializing in the health care field. From 1981 to 1985, Mr. Logan was employed by Bausch & Lomb, Inc. as President, Health Care and Consumer Group, and was a member of Bausch & Lomb's board of directors. From 1975 to 1981, he was employed by Becton, Dickinson & Co. where he held the position of Consumer Group President, and was responsible for that Company's worldwide diabetes syringe business. From 1967 to 1974, Mr. Logan held various management positions with American Home Products Corporation. Elizabeth H. Davila. Ms. Davila has been Executive Vice President and Chief Operating Officer since May 1995. From 1977 to 1994, Ms. Davila held senior management positions with Syntex Corporation which included Vice President of Quality and Reengineering, Vice President and Director of the Company's Drug Development Optimization Program, Vice President of Marketing and Sales for the Syva Company Diagnostics Division and Vice President of Marketing and Sales of the Syntex Ophthalmics Division. Katrina J. Church. Ms. Church has been Vice President, General Counsel since January 1995 and corporate counsel since June 1991. She has served as Secretary of the Company since May 1994. Before joining the Company in 1991, Ms. Church practiced law with the firm Hopkins & Carley in San Jose, California. Terrance N. Clapham. Mr. Clapham has been Vice President, Research and Development since March 1993. He also served as Secretary of the Company from November 1990 to May 1994 and Vice President, Engineering and Product Development from November 1990 to March 1993. He was a founder, Vice President, Secretary and director of one of the Company's predecessors from its inception in August 1987 until November 1990, when it was merged with the Company. Jordan D. Haller, M.D. Dr. Haller has been Vice President, Regulatory and Clinical Affairs since July 1995. Prior to joining VISX, Dr. Haller was Medical Director of Quantum Bio-Medical Technologies from 1990. Dr. Haller also served on the faculty at Columbia University and taught courses in technology assessment, with emphasis on government and FDA regulation. From 1985 to 1990, he was Medical Director for C.R. Bard Company. In 1984 he founded The Laser Institute of Pittsburgh. Prior 31 33 to 1984, Dr. Haller was Director of Cardiovascular Surgery at Maimonides Medical Center and a practicing cardiovascular surgeon. Timothy R. Maier. Mr. Maier has been Vice President, Chief Financial Officer since June 1995. From 1991 to June 1995, he served as Vice President, Chief Financial Officer of GenPharm, International, Inc., a privately held international biotechnology company. From 1976 to 1991, Mr. Maier held various positions with Spectra-Physics, Inc., an international manufacturer of scientific and commercial laser products. His positions included Operations Manager, International Finance and Administration Manager, and Vice President of Finance. Judith A. Somerville. Ms. Somerville has been Vice President, Human Resources since September 1995 and Director, Human Resources since March 1995. From 1993 to March 1995, she served as Corporate Director, Compensation and Benefits at VLSI Technology, Inc., a publicly held semiconductor company. From 1990 to 1993, she was Director, Corporate Compensation and Benefits at Conner Peripherals, Inc., an international manufacturer of disk drives. From 1989 to 1990, she was Corporate Compensation Manager at Hexcel Corporation. From 1980 to 1989, Ms. Somerville was employed by United Technologies Corporation in a variety of Human Resource positions. W. Michael Wilson. Mr. Wilson has been Vice President, Operations since January 1992 and served as Director of Operations from December 1991 to January 1993. He was Manufacturing Manager with one of the Company's predecessors from January to November 1990 and Manufacturing Manager of the Company from November 1990 to December 1991. Glendon E. French. Mr. French has served as a director of the Company since May 1995. Mr. French served as Chairman and Chief Executive Officer of Imagyn Medical, Inc. ("Imagyn") from February 1992 until his retirement as Chief Executive Officer in December 1994. He continued to serve as Chairman of Imagyn until April 1995 and as a director of Imagyn until September 1995. From 1989 until he joined Imagyn in February 1992, Mr. French was Chairman, Chief Executive Officer and a director of Applied Immune Sciences, Inc. From 1982 to 1988, Mr. French was President of the Health and Education Services Sector of ARA Services, Inc., and from 1972 to 1982, he was President of American Critical Care (formerly a division of American Hospital Supply Corp., now known as Dupont Critical Care). Mr. French is also a director of Pacific Physician Services, Inc. Robert B. Samuels. Dr. Samuels has served as a director of the Company since February 1993. He is Chairman of TEC, Inc., an organization that specializes in business skills development for chief executive officers. He served as President of Allergan Humphrey, a supplier of eye care diagnostic instruments, from 1987 through December 1991. He has 26 years experience in the health care industry, including corporate executive positions with Smith Kline Beckman, Inc. and Allergan, Inc. Richard B. Sayford. Mr. Sayford has served as a director of the Company since May 1995. Mr. Sayford has been President of Strategic Enterprises, Inc., a private business consulting firm specializing in work with high technology and venture firms since 1979. He is a founding investor of MCI Communications Co. and has served as a member of the Board of Directors of MCI since 1980. He is also a director of Medtrac, Inc. and Laser Technologies, Inc. He is former President of Amdahl International, Ltd. and Corporate Vice President of Amdahl Corporation. 32 34 UNDERWRITING The names of the Underwriters of the shares of Common Stock offered hereby and the aggregate number of shares which each has severally agreed to purchase from the Company (subject to the terms and conditions specified in the Underwriting Agreement) are as follows:
UNDERWRITERS NUMBER OF SHARES -------------------------------------------------------------------- ---------------- Dillon, Read & Co. Inc. ............................................ PaineWebber Incorporated............................................ --------- Total..................................................... 2,500,000 =========
The Managing Underwriters are Dillon, Read & Co. Inc. and PaineWebber Incorporated. If any shares of Common Stock offered hereby are purchased by the Underwriters, all such shares will be so purchased. The Underwriting Agreement contains certain provisions whereby if any Underwriter defaults in its obligation to purchase such shares and if the aggregate obligations of the Underwriters so defaulting do not exceed 10% of the shares hereby, the remaining Underwriters, or some of them, must assume such obligations. The shares of Common Stock offered hereby are being offered severally by the Underwriters for sale at the price set forth on the cover page hereof, or at such price less a concession not to exceed $ per share on sales to certain dealers. The Underwriters may allow, and such dealers may reallow, a concession not to exceed $ per share on sales to certain dealers. The offering of the shares of Common Stock is made for delivery when, as, and if accepted by the Underwriters and subject to prior sale and to withdrawal, cancellation or modification of the offer without notice. The Underwriters reserve the right to reject any order for the purchase of the shares. After the shares are released for sale to the public, the public offering price, the concession and the reallowance may be changed by the Managing Underwriters. The Company has granted to the Underwriters an option to purchase up to an additional 375,000 shares of Common Stock on the same terms per share. If the Underwriters exercise this option, each of the Underwriters will have a firm commitment, subject to certain conditions, to purchase approximately the same proportion of the aggregate shares so purchased as the number of shares to be purchased by it shown in the above table bears to the total number of shares in such table. The Underwriters may exercise such option on or before the thirtieth day from the date of the public offering of the shares offered hereby and only to cover over-allotments made of the shares in connection with this Offering. The Company has agreed that it will not, without the prior written consent of Dillon, Read & Co. Inc., sell, grant any option to sell, transfer or otherwise dispose of, directly or indirectly, any shares of the Common Stock, or any securities convertible into, or exercisable or exchangeable for, Common Stock or warrants or other rights to purchase Common Stock, prior to the expiration of 90 days from the date of the consummation of this Offering, except (i) shares of Common Stock issued upon the exercise of options issued under its existing stock option plans and (ii) options granted to its employees, officers and directors under its stock option plans and (iii) shares of Common Stock offered and sold pursuant to its existing stock purchase plan. The Company's officers and directors and certain stockholders who will hold in the aggregate shares of Common Stock after this Offering and who hold certain options to purchase Common Stock have agreed that they will not, without the prior written consent of Dillon, Read & Co. Inc., sell, grant any option to sell, transfer or otherwise dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into, or exercisable or exchangeable for, Common Stock or warrants or other rights to purchase Common Stock, prior to the expiration of 90 days from the date of the consummation of this Offering. 33 35 The Company has agreed in the Underwriting Agreement to indemnify the Underwriters against certain civil liabilities, including liabilities under the Securities Act, or to contribute to payments that the Underwriters may be required to make in respect thereof. In connection with the Company's private placement of 1,200,000 shares of its Common Stock completed in February 1995, PaineWebber Growth Fund and PaineWebber Growth Portfolio, affiliates of PaineWebber Incorporated, purchased from the Company an aggregate of 100,000 shares of the Common Stock at a price of $10.854 per share. In connection with this Offering, certain Underwriters and selling group members or their affiliates may engage in passive marketing making transactions in the Common Stock on the Nasdaq National Market in accordance with Rule 10b-6A under the Exchange Act during the two business day period before the commencement of sales in this Offering. Passive market making consists of, among other things, displaying bids on the Nasdaq National Market limited by the bid prices of independent market makers and purchases limited by such prices and effected in response to order flow. Net purchases by a passive market maker on each day are limited to a specified percentage of the passive market maker's average daily trading volume in the Common Stock during a specified prior period and all possible market making activity must be discontinued when such limit is reached. Passive market making may stabilize the market price of the Common Stock at a level above that which might otherwise prevail and, if commenced, may be discontinued at any time. LEGAL MATTERS The validity of the Common Stock offered hereby will be passed upon for the Company by Wilson Sonsini Goodrich & Rosati, Professional Corporation, Palo Alto, California. Certain legal matters in connection with this Offering will be passed upon for the Underwriters by Gibson, Dunn & Crutcher, Los Angeles, California. EXPERTS The audited financial statements as of December 31, 1993 and 1994 and for each of the three years in the period ended December 31, 1994 included in this Prospectus have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their report with respect thereto, and are included herein in reliance upon the authority of said firm as experts in giving said report. 34 36 AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files reports and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information can be inspected and copied at the public reference facilities maintained by the Commission at its office at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices at Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and Seven World Trade Center, 13th Floor, New York, New York 10048. Copies of such materials can be obtained from the Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. The Common Stock is quoted on the Nasdaq National Market and reports, proxy statements and other information concerning the Company may be inspected at the offices of the Nasdaq Stock Market, 1735 K Street, N.W., Washington, D.C. 20006-1500. The Company has filed with the Commission, Washington, D.C. 20549, a Registration Statement under the Securities Act with respect to the shares of Common Stock offered hereby. This Prospectus does not contain all of the information set forth in the Registration Statement and the exhibits and schedules thereto. For further information with respect to the Company and the Common Stock offered hereby, reference is made to the Registration Statement and the exhibits and schedules filed therewith. Statements contained in this Prospectus as to the contents of any contract or any other document referred to are not necessarily complete, and in each instance reference is made to the copy of such contract or other document filed as an exhibit to the Registration Statement, each such statement being qualified in all respects by such reference. A copy of the Registration Statement may be inspected without charge at the Commission's principal office, and copies of all or any part of the Registration Statement may be obtained from such office upon the payment of the fees prescribed by the Commission. INFORMATION INCORPORATED BY REFERENCE The following documents, heretofore filed by the Company with the Commission pursuant to the Exchange Act, are hereby incorporated by reference: (1) The Company's Annual Report on Form 10-K for the year ended December 31, 1994. (2) The Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995 and June 30, 1995. (3) The description of the Company's Common Stock contained in its Registration Statement on Form 8-A filed with the Commission on February 4, 1991, as amended. All reports and other documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of this Offering shall be deemed to be incorporated by reference into this Prospectus and shall be a part hereof from the date of filing of such reports and documents. Any statement incorporated herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. The Company will provide without charge to each person to whom a copy of this Prospectus is delivered, upon the written or oral request of any such person, a copy of any report or document described above (other than exhibits, unless such exhibits are specifically incorporated by reference herein). Requests for such copies should be directed to VISX at its principal executive offices located at 3400 Central Expressway, Santa Clara, California 95051, telephone (408) 733-2020, attention, Investor Relations. 35 37 VISX, INCORPORATED AND SUBSIDIARIES INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
PAGE ---- Report of Independent Public Accountants.............................................. F-1 Consolidated Balance Sheets........................................................... F-2 Consolidated Statements of Operations................................................. F-3 Consolidated Statements of Stockholders' Equity....................................... F-4 Consolidated Statements of Cash Flows................................................. F-5 Notes to Consolidated Financial Statements............................................ F-6
36 38 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS TO VISX, INCORPORATED: We have audited the accompanying consolidated balance sheets of VISX, Incorporated (a Delaware corporation) and subsidiaries as of December 31, 1993 and 1994, and the related consolidated statements of operations, stockholders' equity and cash flows for each of the three years in the period ended December 31, 1994. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of VISX, Incorporated and subsidiaries as of December 31, 1993 and 1994, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 1994 in conformity with generally accepted accounting principles. /s/ ARTHUR ANDERSEN LLP ----------------------------------- Arthur Andersen LLP San Jose, California February 14, 1995 F-1 39 VISX, INCORPORATED AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
DECEMBER 31, --------------------- JUNE 30, 1993 1994 1995 -------- -------- ----------- (UNAUDITED) ASSETS CURRENT ASSETS Cash and cash equivalents.............................. $ 11,847 $ 11,161 $ 6,796 Short-term investments................................. -- -- 8,049 Accounts receivable: Trade............................................... 1,059 268 4,160 Alcon, a related party.............................. 3,690 2,659 -- Inventories............................................ 3,206 3,792 5,308 Prepaid expenses....................................... 165 187 253 -------- -------- -------- Total current assets................................ 19,967 18,067 24,566 PROPERTY AND EQUIPMENT, NET.............................. 1,590 1,450 1,884 OTHER ASSETS............................................. 1,360 1,110 894 -------- -------- -------- $ 22,917 $ 20,627 $ 27,344 ======== ======== ======== LIABILITIES & STOCKHOLDERS' EQUITY CURRENT LIABILITIES Accounts payable....................................... $ 1,014 $ 2,058 $ 3,092 Accrued liabilities.................................... 3,220 4,167 3,686 -------- -------- -------- Total current liabilities........................... 4,234 6,225 6,778 -------- -------- -------- DEFERRED REVENUE & OTHER LONG-TERM OBLIGATIONS........... 659 409 409 -------- -------- -------- COMMITMENTS AND CONTINGENCIES (NOTES 7 AND 8) STOCKHOLDERS' EQUITY: Common stock -- $.01 par value, 30,000,000 shares authorized; 10,686,572, 11,024,808 and 12,571,142 shares outstanding at December 31, 1993, 1994 and June 30, 1995, respectively......................... 107 110 125 Additional paid-in capital............................. 48,459 50,689 65,117 Accumulated deficit.................................... (30,539) (36,803) (45,082) Less: 500,000 common stock treasury shares, at cost.... (3) (3) (3) -------- -------- -------- Total stockholders' equity.......................... 18,024 13,993 20,157 -------- -------- -------- $ 22,917 $ 20,627 $ 27,344 ======== ======== ========
The accompanying notes are an integral part of these balance sheets. F-2 40 VISX, INCORPORATED AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS (IN THOUSANDS, EXCEPT PER SHARE DATA)
SIX MONTHS ENDED YEAR ENDED DECEMBER 31, JUNE 30, -------------------------------- ------------------- 1992 1993 1994 1994 1995 -------- ------- ------- ------- ------- (UNAUDITED) REVENUES: Product sales....................... $ 9,368 $ 1,092 $ 1,240 $ 940 $ 2,800 Product sales to Alcon, a related party............................ 9,566 18,450 13,993 8,067 1,680 Service and other revenues.......... 1,351 2,532 2,663 1,230 1,995 -------- ------- ------- ------- ------- Total revenues.............. 20,285 22,074 17,896 10,237 6,475 -------- ------- ------- ------- ------- COSTS AND EXPENSES: Cost of revenues.................... 12,551 12,030 10,274 5,250 4,438 Marketing, general and administrative................... 6,846 5,272 6,371 2,495 3,916 Research, development and regulatory....................... 5,445 4,964 7,085 2,978 4,608 Reserve for product line disposition...................... -- -- 1,500 -- -- Purchased research and development.. 6,017 -- -- -- -- -------- ------- ------- ------- ------- Total costs and expenses.... 30,859 22,266 25,230 10,723 12,962 -------- ------- ------- ------- ------- LOSS FROM OPERATIONS.................. (10,574) (192) (7,334) (486) (6,487) -------- ------- ------- ------- ------- OTHER INCOME (EXPENSE): Interest income..................... 767 295 472 206 376 Other income........................ 276 76 598 23 82 Interest expense.................... (20) -- -- -- -- Litigation settlement............... -- -- -- -- (2,250) -------- ------- ------- ------- ------- Other income (expense), net...... 1,023 371 1,070 229 (1,792) -------- ------- ------- ------- ------- NET INCOME (LOSS)..................... $ (9,551) $ 179 $(6,264) $ (257) $(8,279) ======== ======= ======= ======= ======= NET INCOME (LOSS) PER SHARE........... $ (.98) $ .02 $ (.60) $ (.03) $ (.71) ======== ======= ======= ======= ======= Weighted average number of shares and equivalents outstanding............. 9,706 10,540 10,372 10,271 11,654 ======== ======= ======= ======= =======
The accompanying notes are an integral part of these financial statements. F-3 41 VISX, INCORPORATED AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (IN THOUSANDS)
COMMON STOCK ADDITIONAL TOTAL --------------- PAID-IN ACCUMULATED TREASURY STOCKHOLDERS' SHARES AMOUNT CAPITAL DEFICIT STOCK EQUITY ------ ------ ---------- ----------- -------- ------------- BALANCE, DECEMBER 31, 1991............. 9,827 $ 98 $ 40,675 $ (21,167) $ (3) $19,603 Exercise of stock options.............. 66 1 380 -- -- 381 Issuance of common stock and stock options in connection with the acquisition of VISX-Massachusetts.... 7 -- 245 -- -- 245 Sale of common stock in a public offering, net of issuance costs...... 496 5 5,524 -- -- 5,529 Net loss............................... -- -- -- (9,551) -- (9,551) ------ ---- ------- -------- ---- ------- BALANCE, DECEMBER 31, 1992............. 10,396 104 46,824 (30,718) (3) 16,207 Exercise of stock options.............. 177 2 682 -- -- 684 Exercise of warrants and options issued to Underwriters...................... 114 1 953 -- -- 954 Net income............................. -- -- -- 179 -- 179 ------ ---- ------- -------- ---- ------- BALANCE, DECEMBER 31, 1993............. 10,687 107 48,459 (30,539) (3) 18,024 Exercise of stock options.............. 265 3 1,488 -- -- 1,491 Exercise of warrants issued to Underwriters......................... 35 -- 350 -- -- 350 Issuance of common stock under the Employee Stock Purchase Plan......... 38 -- 392 -- -- 392 Net loss............................... -- -- -- (6,264) -- (6,264) ------ ---- ------- -------- ---- ------- BALANCE, DECEMBER 31, 1994............. 11,025 110 50,689 (36,803) (3) 13,993 Exercise of stock options.............. 331 3 2,067 -- -- 2,070 Sale of common stock in a private placement, net of issuance costs..... 1,200 12 12,222 -- -- 12,234 Issuance of common stock under the Employee Stock Purchase Plan......... 15 -- 139 -- -- 139 Net loss............................... -- -- -- (8,279) -- (8,279) ------ ---- ------- -------- ---- ------- BALANCE, JUNE 30, 1995 (UNAUDITED)..... 12,571 $125 $ 65,117 $ (45,082) $ (3) $20,157 ====== ==== ======= ======== ==== =======
The accompanying notes are an integral part of these financial statements. F-4 42 VISX, INCORPORATED AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (IN THOUSANDS)
SIX MONTHS ENDED YEAR ENDED DECEMBER 31, JUNE 30, ------------------------------- -------------------- 1992 1993 1994 1994 1995 ------- ------- ------- ------- -------- (UNAUDITED) CASH FLOWS FROM OPERATING ACTIVITIES: Net income (loss)......................... $(9,551) $ 179 $(6,264) $ (257) $ (8,279) Adjustments to reconcile net income (loss) to net cash provided by (used for) operating activities: Depreciation and amortization........... 409 550 609 287 322 Purchased research and development...... 6,017 -- -- -- -- CHANGES IN ASSETS AND LIABILITIES: Decrease (increase) in trade accounts receivable........................... 1,577 478 791 22 (3,892) Decrease (increase) in accounts receivable from Alcon................ (4,071) 1,589 1,031 (357) 2,659 Decrease (increase) in inventories...... (1,400) 519 (586) (215) (1,516) Decrease (increase) in prepaid expenses............................. (61) 324 (22) (169) (66) Decrease (increase) in other assets..... (63) (12) 228 205 205 Increase (decrease) in accounts payable.............................. 142 (940) 1,044 777 1,034 Decrease in amounts payable to Alcon.... (1,000) -- -- -- -- Increase (decrease) in accrued liabilities.......................... 34 (988) 947 (348) (481) Decrease in deferred revenue and other long-term obligations................ (24) -- (250) -- -- ------- ------- ------- ------- -------- Net cash provided by (used for) operating activities............... (7,991) 1,699 (2,472) (55) (10,014) ------- ------- ------- ------- -------- CASH FLOWS FROM INVESTING ACTIVITIES: Capital expenditures.................... (1,353) (620) (447) (220) (745) Acquisition of VISX-Massachusetts....... (5,932) -- -- -- -- Purchase of short-term investments...... -- -- -- -- (8,712) Proceeds from maturities of short-term investments.......................... 1,061 -- -- -- 663 Decrease in long-term investments....... 11,697 -- -- -- -- ------- ------- ------- ------- -------- Net cash provided by (used for) investing activities............... 5,473 (620) (447) (220) (8,794) ------- ------- ------- ------- -------- CASH FLOWS FROM FINANCING ACTIVITIES: Net proceeds from issuance of common stock................................ 5,910 1,638 2,233 1,236 14,443 Repayments of long-term obligations and capital leases....................... (19) (5) -- -- -- ------- ------- ------- ------- -------- Net cash provided by financing activities......................... 5,891 1,633 2,233 1,236 14,443 ------- ------- ------- ------- -------- Net increase (decrease) in cash and cash equivalents................... 3,373 2,712 (686) 961 (4,365) Cash and cash equivalents, beginning of period............................... 5,762 9,135 11,847 11,847 11,161 ------- ------- ------- ------- -------- Cash and cash equivalents, end of period............................... $ 9,135 $11,847 $11,161 $12,808 $ 6,796 ======= ======= ======= ======= ======== Cash paid for interest expense.......... $ 20 $ -- $ -- $ -- $ -- ======= ======= ======= ======= ========
The accompanying notes are an integral part of these financial statements. F-5 43 VISX, INCORPORATED AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (INFORMATION RELATING TO THE SIX MONTHS ENDED JUNE 30, 1994 AND 1995 IS UNAUDITED) NOTE 1. THE COMPANY VISX, Incorporated (the "Company" or "VISX") was incorporated in Delaware in 1988 as Taunton Technologies Inc. The Company changed its name to VISX, Incorporated in 1990 when it acquired VISX, Incorporated ("VISX California"). The Company is engaged in the design and development of proprietary technologies and systems for laser vision correction ("LVC"). The Company has developed and manufactures a device (the "VISX System") which utilizes an excimer laser to reshape the surface of the cornea to treat nearsightedness, astigmatism and farsightedness and is intended to reduce or eliminate the patient's dependence on corrective lenses. The device is also intended to treat other eye disorders, such as opacities and superficial scars. In 1992, the Company acquired VISX-Massachusetts, Inc. ("VISX-Massachusetts"), formerly known as Questek, Inc., a manufacturer of excimer lasers and related products for medical, scientific and industrial applications. VISX-Massachusetts was the Company's sole supplier of lasers for the VISX System. The Company acquired VISX-Massachusetts for approximately $5,932,000 in cash, assumed VISX-Massachusetts' outstanding stock options, and forgave the intercompany balances between VISX and VISX-Massachusetts. The acquisition was accounted for using the purchase method of accounting. The Company incurred a charge against earnings of $6,017,000 in 1992, which it allocated to VISX-Massachusetts' research and development projects that were in process at the time of the acquisition. In 1993, VISX sold the non-medical technology of VISX-Massachusetts to Lambda-Physik for $850,000, to be paid in four installments over three years. The Company accounted for the proceeds from the sale of this technology as a re-allocation of the initial purchase price of VISX-Massachusetts. VISX retained certain rights to the technology which is incorporated into the VISX System. The Company's consolidated statements of operations include the results of operations of VISX-Massachusetts since the date of acquisition. For 1992, the combined results of operations on an unaudited pro forma basis, as though the acquisition of VISX-Massachusetts had occurred at the beginning of the period, were (in thousands, except per share data):
1992 ------- Revenues........................................................... $20,978 Net loss........................................................... $(9,821) Net loss per share................................................. $ (1.01)
Although further along in the development stage, the Company continues to be subject to a number of risks similar to other companies in a comparable stage of development. The success of the Company's future operations is affected by a number of significant risk factors including, but not limited to, the following: (1) the Company expects to collect per procedure fees or some other type of payment from users of its equipment in foreign countries, based upon the Company's patents, which is innovative and may encounter resistance; (2) until the Food and Drug Administration (FDA) grants pre-market approval for the sale of the VISX System for LVC, the Company will be dependent upon international sales to Alcon Laboratories, Inc. to sustain or increase product sales, which are also subject to international regulations and restrictions; (3) although the FDA has authorized VISX to conduct clinical trials on humans for the VISX System, there can be no assurance that the FDA will determine that the data derived from these studies supports the safety and efficacy of the VISX System for LVC; and (4) the Company may need additional financing to complete the testing and development required for regulatory approval and to ultimately manufacture the VISX System on a commercial basis; there can be no assurance that such financing will be available when needed or, if available, that the terms for F-6 44 VISX, INCORPORATED AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) (INFORMATION RELATING TO THE SIX MONTHS ENDED JUNE 30, 1994 AND 1995 IS UNAUDITED) obtaining such financing will be favorable to the Company. See "Risk Factors" included elsewhere in this Prospectus for a discussion of certain factors affecting the Company. NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES Unaudited Interim Financial Data. The unaudited interim financial statements as of June 30, 1995 and for the six months ended June 30, 1994 and 1995 have been prepared on the same basis as the audited financial statements and, in the opinion of management, include all adjustments (consisting of only normal recurring adjustments) necessary to present fairly the financial information set forth therein, in accordance with generally accepted accounting principles. The data disclosed in the notes to the financial statements for these periods are unaudited. The Company believes the results of operations for the interim periods are not necessarily indicative of the results to be expected for any future period. Principles of Consolidation. The consolidated financial statements include the accounts of the Company and its subsidiaries after the elimination of significant intercompany accounts and transactions. Cash and Cash Equivalents. The Company considers all highly liquid debt instruments purchased with an original maturity of 90 days or less to be cash equivalents. Short-term Investments. In 1994, the Company adopted Statement of Financial Accounting Standards No. 115 ("SFAS No. 115") "Accounting for Certain Investments in Debt and Equity Securities." In 1995, the Company's short-term investments consist of U.S. Treasury Bills with original maturities of between three and twelve months that will be held-to-maturity and are thus accounted for at amortized cost in accordance with SFAS No. 115. At June 30, 1995, the amortized cost of short-term investments approximated the aggregate fair market value and the investments mature through May 1996. Inventories. Inventories consist of purchased parts and systems and are stated at the lower of cost or market, using the first-in, first-out method. Work-in-process and finished goods include material, labor, and overhead. Inventories consisted of the following at (in thousands):
DECEMBER 31, ----------------- JUNE 30, 1993 1994 1995 ------ ------ -------- Raw Materials and Component Stock....................... $ 851 $1,394 $ 1,556 Work-in-Process......................................... 1,683 2,398 3,209 Finished Goods.......................................... 672 -- 543 ------ ------ ------ $3,206 $3,792 $ 5,308 ====== ====== ======
Property and Equipment. Property and equipment is depreciated using the straight-line method over estimated useful lives of the assets, generally three to seven years or, in the case of leasehold F-7 45 VISX, INCORPORATED AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) (INFORMATION RELATING TO THE SIX MONTHS ENDED JUNE 30, 1994 AND 1995 IS UNAUDITED) improvements, the term of the related lease. Property and equipment is stated at cost and consisted of the following at (in thousands):
DECEMBER 31, ------------------- JUNE 30, 1993 1994 1995 ------- ------- -------- Furniture and fixtures............................... $ 791 $ 813 $ 946 Machinery and equipment.............................. 1,995 2,676 3,201 Leasehold improvements............................... 62 103 112 ------- ------- ------- 2,848 3,592 4,259 Less -- accumulated depreciation and amortization.... (1,258) (2,142) (2,375) ------- ------- ------- Property and equipment, net.......................... $ 1,590 $ 1,450 $ 1,884 ======= ======= =======
Revenue Recognition. The Company recognizes revenue on product sales when the products are shipped. Service revenue is recognized as the services are performed. An allowance for installation and training costs is made at the time sales are recognized. Net Income (Loss) Per Share. Net income per share data for 1993 has been computed using the weighted average number of common shares outstanding, after giving effect to dilutive common stock equivalents. Common stock equivalents consist of the dilutive shares issuable upon the exercise of stock options and warrants (using the treasury stock method). Net loss per share data has been computed using the weighted average number of shares outstanding during each period; dilutive common stock equivalents have been excluded from the computation as their effect would be to reduce the net loss per share amount. Concentration of Credit Risk; Major Customers and Export Revenues. The Company's credit risk in its accounts receivable is concentrated primarily in sales to Alcon. Internationally, Alcon buys product from the Company and sells direct to end-users. The Company recognized $9,566,000, $18,450,000, $13,993,000, $8,067,000 and $4,480,000 in revenues from the sale of VISX Systems to Alcon for the years ended December 31, 1992, 1993 and 1994, and for the six months ended June 30, 1994 and 1995, respectively. Including sales of parts and VisionKey cards, Alcon accounted for 48%, 87%, 86%, 84% and 90% of total revenues for the years ended December 31, 1992, 1993 and 1994, and for the six months ended June 30, 1994 and 1995, respectively. The Company's marketing agreements with Alcon require the Company to nominate two representatives of Alcon for election to the Company's Board of Directors. Alcon was a related party to the Company due to its representation on the Company's Board of Directors. Alcon representatives did not stand for reelection at the Company's 1995 stockholders' meeting on May 26, 1995. Accordingly, after such date, Alcon is no longer considered a related party to the Company. The accompanying financial statements reflect transactions with Alcon up until May 26, 1995 as related party transactions (see Note 3). Export revenues accounted for 86%, 86%, 85%, 88% and 69% of revenues for the years ended December 31, 1992, 1993 and 1994, and for the six months ended June 30, 1994 and 1995, respectively. F-8 46 VISX, INCORPORATED AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) (INFORMATION RELATING TO THE SIX MONTHS ENDED JUNE 30, 1994 AND 1995 IS UNAUDITED) The following table represents export revenues by geographic region for the periods ended (in thousands):
YEAR ENDED SIX MONTHS ENDED DECEMBER 31, JUNE 30, ------------------------------- ----------------- 1992 1993 1994 1994 1995 ------- ------- ------- ------ ------ Europe................................... $10,365 $18,450 $12,653 $7,732 $4,200 Canada................................... 1,444 -- 1,790 485 280 Far East................................. 5,586 453 790 790 -- ------- ------- ------- ------ ------ $17,395 $18,903 $15,233 $9,007 $4,480 ======= ======= ======= ====== ======
NOTE 3. RELATIONSHIP WITH ALCON Marketing Agreement. In 1987, the Company amended its then-existing agreement with Alcon Laboratories, Inc. and Alcon Pharmaceuticals Ltd. (collectively "Alcon") whereby the Company granted a license and exclusive marketing rights for the VISX System to Alcon, and in 1988, Alcon advanced $2,500,000 to the Company to defray development costs. In January 1990, the Company and Alcon entered into a Second Amended and Restated Marketing Agreement ("Marketing Agreement") which amended and restated the marketing agreement, as it pertained to domestic marketing. The Marketing Agreement grants Alcon a license and exclusive marketing rights for the Company's VISX System in the U.S., and Alcon is required to collect a per-procedure fee and remit it to the Company. The Marketing Agreement contains provisions to repay the $2,500,000 previously advanced to defray development costs. The Company repaid $1,000,000 of that amount in 1992. Alcon is compensated for its duties under the Marketing Agreement as follows: (1) The Company reimburses Alcon for costs it incurs throughout the year on behalf of the Company. The Company recorded expenses of $905,000, $90,000 and $120,000, $60,000 and $400,000 for the years ended December 31, 1992, 1993 and 1994, and for the six months ended June 30, 1994, and 1995, respectively, related to the reimbursement of these costs. These expenses are recorded in marketing, general and administrative expenses in the accompanying consolidated statements of operations. (2) VISX is contingently liable to Alcon for $1,500,000, the balance of the $2,500,000 previously advanced. This payment will be made at the end of each year, to the extent VISX has Annual Cash Flow, as defined in the Marketing Agreement. (3) VISX reimburses Alcon for certain additional approved costs not previously reimbursed, to the extent the Company has Annual Cash Flow. (4) Thereafter, Alcon would receive 25% of the Company's Excess Cash Flow, as defined in the Marketing Agreement. To date, no payments have accrued or become due and payable under these segments of the Marketing Agreement described in (2), (3) and (4), above. The Marketing Agreement will remain in effect until the expiration of the last patent licensed under the agreement, unless earlier terminated by Alcon or VISX in accordance with the terms of the Marketing Agreement. Insurance/Indemnification. Under the Marketing Agreement, the Company will be required to indemnify Alcon, its affiliates and their respective officers, directors, partners, employees and stockholders for damages, up to an aggregate of $4,000,000, arising out of the design, manufacture or authorized use of the VISX Systems or any claim that the manufacture, design, use, marketing or sale of the VISX Systems infringes any patent owned or controlled by any third party. The indemnity does not cover damages resulting from negligence, recklessness, willful misconduct or unauthorized act of any party seeking indemnification. VISX maintains a product liability policy in the amount of $4,000,000. Clinical and Regulatory. In September 1994, VISX and Alcon signed a letter of intent pursuant to which Alcon agreed to provide interim regulatory and clinical assistance to the Company. During 1994, F-9 47 VISX, INCORPORATED AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) (INFORMATION RELATING TO THE SIX MONTHS ENDED JUNE 30, 1994 AND 1995 IS UNAUDITED) the Company recognized expenses of $400,000 related to these services provided by Alcon. Effective February 1995, the Company terminated the interim regulatory and clinical agreement with Alcon. NOTE 4. ACCRUED LIABILITIES Accrued liabilities consisted of the following at (in thousands):
DECEMBER 31, ----------------- JUNE 30, 1993 1994 1995 ------ ------ -------- Payroll and related accruals............................ $1,081 $ 729 $ 804 Accrued installation/training........................... 1,235 657 473 Product line disposition................................ -- 1,437 1,223 Accrued royalties....................................... 188 318 265 Deferred revenue........................................ 258 101 93 Other................................................... 458 925 828 ------ ------ ------ $3,220 $4,167 $ 3,686 ====== ====== ======
NOTE 5. STOCKHOLDERS' EQUITY Common Stock. On February 14, 1995, the Company concluded a private placement of 1,200,000 shares of its Common Stock at a price of $10.85 per share and received net proceeds of approximately $12,234,000. Certain holders of the shares purchased in the private placement demanded registration of those shares for resale under the Securities Act of 1933, pursuant to the terms of the private placement agreement. The Company filed for registration of those shares in April 1995. Stock Option Plans. The Company has reserved shares of its common stock for issuance upon the exercise of stock options granted to the Company's employees under five separate option plans. In 1993, the Company adopted a Flexible Stock Incentive Plan (the "1993 Plan") and reserved 1,000,000 shares. The 1993 Plan permits the issuance of incentive or non-qualified stock options and stock grants to employees, consultants and non-employee directors of the Company with an exercise price not less than 85% of the fair market value on the date of grant (100% for incentive stock options). Options granted under the 1993 Plan generally vest 25% one year after the date of grant and ratably thereafter over three years and expire ten years from the date of grant. In addition to the 1993 Plan, the Company has options outstanding under its 1983, 1987, 1988 and 1990 option plans, which have generally the same eligibility and vesting terms as options granted under the 1993 Plan. The Company grants 2,000 shares of the Company's common stock annually to each non-employee director of the Company. Options granted to non-employee directors of the Company become fully exercisable six months after the date of grant; however, unvested shares are subject to repurchase as set forth in the agreement. F-10 48 VISX, INCORPORATED AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) (INFORMATION RELATING TO THE SIX MONTHS ENDED JUNE 30, 1994 AND 1995 IS UNAUDITED) A summary of stock option activity for all plans follows:
SHARES EXERCISE UNDER OPTION PRICE ------------ --------------- December 31, 1991............................................ 1,024,966 $ 1.70-$14.88 Granted.................................................... 306,788 10.52-16.15 Exercised.................................................. (49,789) 1.70-10.52 Canceled................................................... (83,001) 5.25-16.15 --------- -------------- December 31, 1992............................................ 1,198,964 1.70-16.15 Granted.................................................... 320,755 9.88-14.75 Exercised.................................................. (176,531) 1.70-16.15 Canceled................................................... (93,301) 5.25-16.15 --------- -------------- December 31, 1993............................................ 1,249,887 3.00-16.15 Granted.................................................... 545,910 11.25-19.25 Exercised.................................................. (262,642) 5.25-16.15 Canceled................................................... (59,340) 5.25-17.125 --------- -------------- December 31, 1994............................................ 1,473,815 3.00-19.25 Granted.................................................... 432,500 11.375-13.875 Exercised.................................................. (340,830) 5.25-12.40 Canceled................................................... (63,092) 10.84-19.25 --------- -------------- June 30, 1995................................................ 1,502,393 $ 3.00-$16.50 ========= ==============
Employee Stock Purchase Plan. The Company has an Employee Stock Purchase Plan ("the Purchase Plan"). The Purchase Plan is available to all eligible full-time employees, excluding those owning 5% or more of the Company's stock. Pursuant to the Purchase Plan, employees can purchase the Company's common stock at 85% of fair market value, in an amount up to 10% of the employee's wages during the semiannual plan purchase period. At June 30, 1995, 53,110 shares had been issued under the Purchase Plan. Option Agreement. The Company has also assumed a stock option that VISX California granted to an officer to purchase 66,195 shares of common stock at $5.70 per share. These options were exercised during 1994. Warrants and Stock Options Issued to Underwriters. In December 1993, Noel Group, Inc. ("Noel"), which had two representatives on the Company's Board of Directors, exercised a warrant to purchase 100,000 shares of the Company's common stock at a purchase price of $8.40 per share, which resulted in net proceeds to the Company of $840,000. Noel purchased the warrant in 1991 from the underwriter that received the warrant in 1988 in connection with the Company's initial public offering. Also in 1993, options to purchase an additional 14,000 shares of common stock were exercised at a purchase price of $8.16 per share, resulting in net proceeds to the Company of $114,000. The options were initially issued to the underwriters in connection with the initial public offering of VISX California. The Company assumed the options in connection with the 1990 acquisition of VISX California. In January 1990, in connection with the private placement of 800,000 shares of its common stock, the Company issued to its private placement agent a warrant to purchase up to 35,000 shares of the Company's common stock at a purchase price of $10.00 per share. The warrant became exercisable in January 1991, and was exercised during 1994, resulting in proceeds to the Company of $350,000. F-11 49 VISX, INCORPORATED AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) (INFORMATION RELATING TO THE SIX MONTHS ENDED JUNE 30, 1994 AND 1995 IS UNAUDITED) At June 30, 1995, there were no remaining warrants or stock options outstanding outside of the Company's Stock Option and Purchase plans. The following table summarizes the share information at June 30, 1995 related to all Stock Option plans and the Purchase Plan.
AVAILABLE SHARES FOR RESERVED OUTSTANDING FUTURE GRANT EXERCISABLE --------- ----------- ------------ ----------- All Option Plans.......................... 2,278,532 1,502,393 125,082 530,869 Purchase Plan............................. 500,000 -- 446,890 -- --------- --------- ------- ------- Total..................................... 2,778,532 1,502,393 571,972 530,869 ========= ========= ======= =======
NOTE 6. INCOME TAXES In January 1993, the Company adopted on a prospective basis Statement of Financial Accounting Standards No. 109 ("SFAS No. 109"), "Accounting for Income Taxes." SFAS No. 109 is an asset and liability approach for computing deferred income taxes. This method requires that the statement of operations reflect any changes in tax laws and rates enacted during the period affecting events that have been recognized in the Company's financial statements or tax returns. In estimating future tax consequences, SFAS No. 109 generally considers all expected future events other than enactments of changes in the tax law or rates. The Company has not had any taxable income or related tax liabilities for any period and accordingly, there is no provision for income taxes in the accompanying statements of operations. As a result, the implementation of SFAS No. 109 did not have any effect on the Company's financial position or results of operations. At December 31, 1994, the Company had net operating loss carryforwards of approximately $34,000,000 available to offset future Federal taxable income. These loss carryforwards expire through the year 2009. The availability and timing of the amount of prior losses to be used to offset taxable income in future years will be limited due to various provisions, including any change in ownership interest of the Company resulting from significant stock transactions. The components of the net deferred income tax asset as of December 31, 1993 and 1994 were as follows (in thousands):
1993 1994 -------- -------- Net operating loss carryforwards............................. $ 8,700 $ 12,700 Cumulative temporary differences (reserves).................. 1,500 1,900 Tax credit carryforwards..................................... 1,200 1,400 -------- -------- 11,400 16,000 Valuation allowance.......................................... (11,400) (16,000) -------- -------- Net deferred income tax asset................................ $ -- $ -- ======== ========
The valuation allowance consisted of net operating losses, deferred tax assets and tax credit carryforwards which may expire before the Company can use them. The Company believes sufficient uncertainty exists regarding the realizability of these items, and accordingly, a valuation allowance has been established. F-12 50 VISX, INCORPORATED AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) (INFORMATION RELATING TO THE SIX MONTHS ENDED JUNE 30, 1994 AND 1995 IS UNAUDITED) NOTE 7. COMMITMENTS The Company leases its facilities under operating leases which expire through 1997. Rent expense was $408,000, $657,000, $529,000, $270,000 and $269,000 for the years ended December 31, 1992, 1993 and 1994 and for the six months ended June 30, 1994 and 1995, respectively. Future minimum lease commitments are as follows (in thousands):
YEAR ENDED DECEMBER 31, 1995.............................................................. $ 586 1996.............................................................. 585 1997.............................................................. 427 ------ Total minimum lease payments...................................... $1,598 ======
NOTE 8. LITIGATION Securities Class Action Litigation In September 1994, various actions were filed in United States District Court for the Northern District of California against the Company and several former and current directors and officers of the Company alleging violations of federal securities laws. These actions were consolidated into a single class action. The plaintiffs in the class action allege that from periods ranging from November 1993 to October 1994, the Company issued misleading statements and failed to make required disclosures about the Company's business prospects and the status of FDA process relating to approval of the VISX System, in violation of certain Federal securities laws. The amount of damages sought was unspecified. In June 1995, the Company reached a settlement (pending court approval) of the securities class action lawsuit against the Company. The net cost of settlement after insurance reimbursement was $2,250,000, which has been paid into an escrow account as of June 30, 1995. Stockholder Derivative Litigation In September 1994, an action was filed as a derivative action on behalf of the Company by CAP Advisers Limited, CAP Trust and Osterfak Limited (collectively, the "CAP Group"), who collectively owned in excess of 10% of the Company's outstanding Common Stock at the time the action was filed. The action names as defendants several former officers of the Company, present and former directors of the Company including representatives of Alcon, and Alcon and certain of its affiliates. The suit alleges, among other things, breaches of fiduciary duties involving the failure to exercise appropriate oversight over regulatory affairs and the Alcon marketing agreements by the named individual defendants including the Alcon representatives as well as breaches of certain of Alcon's marketing obligations under the Company's agreements with Alcon, and seeks monetary damages in excess of $2.25 billion from Alcon and the named individual defendants. Alcon has made counterclaims against the CAP Group and the named individual defendants (other than the Alcon representatives) and two former directors of the Company not named in the original suit for interference with the Company's contractual relationship with Alcon. Because this action is a derivative suit, any recovery of monetary damages would be for the benefit of the Company. However, the Company has certain obligations to indemnify its officers and directors in the event of litigation, and the Company has incurred and expects to continue to incur significant legal expenses in connection with the derivative litigation. The Company believes that the resolution of this matter will not have a material adverse effect on the Company's financial position or results of operations. However, this suit is currently in the pleading stage, and there can be no assurance as to the outcome of the litigation. F-13 51 VISX, INCORPORATED AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) (INFORMATION RELATING TO THE SIX MONTHS ENDED JUNE 30, 1994 AND 1995 IS UNAUDITED) Azema Patent Litigation On August 30, 1995, Summit Technology, Inc. ("Summit") sued the Company in the United States for infringement of a U.S. patent held by Summit. Summit acquired the rights to the patent in 1993, and Pillar Point Partners, a partnership consisting of entities controlled by VISX and Summit, has not acquired rights to the patent. The lawsuit claims that the manufacture and export of VISX Systems from the United States is an infringement of the patent. A preliminary analysis of these patents by the Company leads the Company to believe that the current VISX System does not infringe these patents. The Company believes that the lawsuit is without merit and intends to vigorously defend its position and believes that the resolution of this matter will not have a material adverse effect on the Company's financial position or results of operations. F-14 52 [Photo of ophthalmologist treating a patient with the VISX System] [Photo of VISX System] [Photo of VisionKey card] A VisionKey card, which is sold separately and is encoded with proprietary software, is required for each procedure performed using the VISX System. CAUTION: The excimer laser is an investigational device for LVC indications. Limited by United States law to investigational use within the United States. 53 - ------------------------------------------------------ - ------------------------------------------------------ NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER CONTAINED HEREIN, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR SOLICITATION OF AN OFFER TO BUY, SHARES OF COMMON STOCK IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS NOT LAWFUL TO MAKE ANY SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. ------------------------ TABLE OF CONTENTS
PAGE ----- Prospectus Summary...................... 3 Risk Factors............................ 5 The Company............................. 11 Use of Proceeds......................... 11 Price Range of Common Stock and Dividend Policy................................ 11 Capitalization.......................... 12 Selected Consolidated Financial Data.... 13 Management's Discussion and Analysis of Financial Condition and Results of Operations............................ 14 Business................................ 18 Management.............................. 31 Underwriting............................ 33 Legal Matters........................... 34 Experts................................. 34 Available Information................... 35 Information Incorporated by Reference... 35 Index to Consolidated Financial Statements............................ 36 - ---------------------------------------------- - ----------------------------------------------
- ------------------------------------------------------ - ------------------------------------------------------ [LOGO] ------------------------ 2,500,000 SHARES COMMON STOCK PROSPECTUS , 1995 ------------------------ DILLON, READ & CO. INC. PAINEWEBBER INCORPORATED - ------------------------------------------------------ - ------------------------------------------------------ 54 PART II INFORMATION NOT REQUIRED THE PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The following table sets forth the costs and expenses, other than underwriting discounts and commissions, payable by Registrant in connection with the sale of the Common Stock being registered. All amounts are estimates except for the SEC registration fee, NASD filing fee and Nasdaq listing fee. SEC registration fee...................................................... $ 22,059 NASD filing fee........................................................... 6,897 Nasdaq listing fee........................................................ 17,500 Accounting fees and expenses.............................................. 45,000 Legal fees and expenses................................................... 125,000 Printing expenses......................................................... 85,000 Blue Sky fees and expenses................................................ 5,000 Transfer agent and registrar fees and expenses............................ 5,000 Miscellaneous............................................................. 38,544 -------- Total................................................................... $350,000 ========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law (the "DGCL") provides for, among other things: (i) permissive indemnification for specified expenses incurred by directors and officers of a corporation, in the event such persons are parties to litigation or are parties to stockholder derivative actions, if certain conditions are met; and (ii) mandatory indemnification for expenses actually and reasonably incurred by directors and officers of a corporation in the event such persons are successful on the merits or otherwise in litigation covered by (i) above. Section 145 also states that these indemnification provisions shall not be deemed exclusive of any other rights which may be provided under a corporation's by-laws, an agreement, a stockholder or disinterested director vote, or otherwise. The Company's Amended and Restated Certificate of Incorporation, Ninth Section, part (a), "Right to Indemnification," states that each person who is involved (or threatened to be involved) in any action, suit or proceeding by reason of the fact that he or she is or was a director or officer of the Corporation shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement reasonably incurred by such person in connection therewith). This Ninth Section, part (a) also states that the Corporation shall indemnify and hold harmless any person who is made a party or threatened to be made a party to a proceeding by reason of the fact that, at the request of the Corporation, he or she is or was serving as a director, officer, employee or agent of another corporation or other enterprise; provided, however, that the Corporation shall indemnify this person in connection with a proceeding initiated by such person only if the proceeding was authorized by the board of directors of the Corporation. This right to indemnification includes the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition, limited, however, by any provisions of DGCL. In addition, the Ninth Section, part (d) "Insurance," states that the Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under DGCL. This section also states that these rights are not exclusive of other rights that these persons might have. II-1 55 The Company's Amended and Restated Bylaws, Article X, Section 1, states that any and every person made a party to any action by reason of the fact that he or she is or was a director, officer, employee or agent of the Corporation, or of any corporation or other enterprise which he served at the request of the Corporation, shall be indemnified by the Corporation, to the fullest extent permissible under DGCL, against any and all reasonable expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and necessarily incurred by such person in connection with the defense of any such action. This section also states that this right is not exclusive of other rights that these persons might have. The form of Underwriting Agreement filed as an exhibit to this Registration Statement also provides for indemnification of the Registrant's directors and officers who sign the Registration Statement against certain liabilities under the Securities Act of 1933, as amended (the "Securities Act"). The Company also carries director and officer liability insurance. ITEM 16. EXHIBITS. The following exhibits are filed herewith:
EXHIBIT NUMBER DESCRIPTION 1.1 -- Form of Underwriting Agreement *4.1 -- Amended and Restated Certificate of Incorporation, as amended **4.2 -- Amended and Restated Bylaws 5.1 -- Opinion of Wilson, Sonsini, Goodrich & Rosati, Professional Corporation 23.1 -- Consent of Independent Public Accountants (see page II-4) 23.2 -- Consent of Wilson, Sonsini, Goodrich & Rosati, Professional Corporation (included in Exhibit 5.1) 24.1 -- Power of Attorney (see Page II-4 of this Registration Statement)
- --------------- * Previously filed as Exhibit 3.1 to Registration Statement on Form S-1 (File No. 33-41621) as amended in Registration Statement on Form S-8 (File No. 33-53806). ** Previously filed as Exhibit 3.2 to Registration Statement on Form S-1 (File No. 33-46311). ITEM 17. UNDERTAKINGS. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described under Item 15 above, or otherwise, the Registrant has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. The undersigned Registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (2) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. (3) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-2 56 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Santa Clara, State of California, on this 5th day of October, 1995. VISX, Incorporated By: /s/ MARK B. LOGAN ------------------------------------ Mark B. Logan President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below hereby constitutes and appoints Mark B. Logan and Timothy R. Maier, and each of them, his attorneys-in-fact, each with the power of substitution, for him in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to sign any registration statement for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933 (and all post-effective amendments thereto), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact, or his substitute or substitutes, the power and authority to perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
NAME TITLE DATE /s/ MARK B. LOGAN President, Chief Executive October 5, 1995 - ------------------------------------------ Officer and Chairman of the Mark B. Logan Board (Principal Executive Officer) /s/ TIMOTHY R. MAIER Vice President and Chief October 5, 1995 - ------------------------------------------ Financial Officer (Principal Timothy R. Maier Financial and Accounting Officer) /s/ GLENDON E. FRENCH Director October 5, 1995 - ------------------------------------------ Glendon E. French /s/ ROBERT B. SAMUELS Director October 5, 1995 - ------------------------------------------ Robert B. Samuels /s/ RICHARD B. SAYFORD Director October 3, 1995 - ------------------------------------------ Richard B. Sayford
II-3 57 EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the use of our report and to all references to our Firm included in or made a part of this Registration Statement. /s/ ARTHUR ANDERSEN LLP -------------------------------------- ARTHUR ANDERSEN LLP San Jose, California October 4, 1995 II-4 EX-1.1 2 UNDERWRITING AGREEMENT 1 VISX, INCORPORATED COMMON STOCK ($.01 PAR VALUE) UNDERWRITING AGREEMENT , 1995 2 UNDERWRITING AGREEMENT , 1995 Dillon, Read & Co. Inc. 535 Madison Avenue New York, New York 10022 PaineWebber Incorporated 1285 Avenue of the Americas New York, New York 10009 as Managing Underwriters Dear Sirs: VISX Incorporated, a Delaware corporation (the "Company"), proposes to issue and sell to the underwriters named in Schedule A (the "Underwriters") 2,500,000 shares (the "Firm Shares") of Common Stock, par value $.01 per share (the "Common Stock"), of the Company. In addition, solely for the purpose of covering overallotments, the Company proposes to issue and sell, at the Underwriters' option, up to 375,000 additional shares of the Common Stock (the "Additional Shares"). The Additional Shares and the Firm Shares are collectively referred to as the "Shares". The Shares are described in the Prospectus which is referred to below. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively, the "Act"), with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3, including a prospectus, relating to the Shares, which incorporates by reference certain documents that the Company has filed in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the "Exchange Act"). The Company has furnished to you, for use by the Underwriters and by dealers, copies of one or more preliminary prospectuses and all documents incorporated by reference therein (collectively, the "Preliminary Prospectus") relating to the Shares. Except where the context otherwise requires, the registration statement as in effect at the time of execution of this Agreement or, if the registration statement is not yet effective, as amended when it becomes effective, including all documents filed as a part thereof or incorporated by reference therein, and including any information contained in a prospectus subsequently filed with the Commission pursuant to Rule 424(b) under the Act and deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A under the Act, is herein called the "Registration Statement", and the prospectus, including all documents incorporated therein by reference, in the form filed by the Company with the Commission pursuant to Rule 424(b) under the Act or, if no such filing is required, in the form of final prospectus included in the Registration Statement at the time it became effective, is herein called the "Prospectus". The Company and the Underwriters agree as follows: 1. Sale and Purchase. On the basis of the representations and warranties and the other terms and conditions herein set forth, the Company agrees to sell to the respective Underwriters and each of the Underwriters, severally and not jointly, agrees to purchase from the Company, the number of Firm Shares set forth opposite the name of such Underwriter on Schedule A, at a purchase price of $ per Share. You may release the Firm Shares for public sale promptly after this Agreement becomes effective. You may from time to time increase or decrease the public offering price after the initial public offering to such extent as you may determine. In addition, on the basis of the representations and warranties and the other terms and conditions herein set forth, the Company hereby grants to the several Underwriters an option to purchase, and the Underwriters shall have the right to purchase, severally and not jointly, from the Company all or a portion of the Additional 3 Shares as may be necessary to cover overallotments made in connection with the offering of the Firm Shares, at the same purchase price per share to be paid by the several Underwriters to the Company for the Firm Shares. This option may be exercised at any time or from time to time on or before the thirtieth day following the date hereof, by written notice to the Company. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised, and the date and time when the Additional Shares are to be delivered (such date and time being herein referred to as an "additional time of purchase"); provided, however, that no additional time of purchase shall occur earlier than the time of purchase (as defined below) nor earlier than the second business day* after the date on which the option shall have been exercised nor later than the eighth business day after the date on which the option shall have been exercised. The number of Additional Shares to be sold to each Underwriter at an additional time of purchase shall be the number which bears the same proportion to the aggregate number of Additional Shares being purchased at such additional time of purchase as the number of Firm Shares set forth opposite the name of such Underwriter on Schedule A bears to the total number of Firm Shares (subject, in each case, to such adjustment as you may determine to eliminate fractional shares). 2. Payment and Delivery. Payment of the purchase price for the Firm Shares shall be made to the Company by certified or official bank check, in New York Clearing House funds, at the office of Dillon, Read & Co. Inc. in New York City, against delivery of the certificates for the Firm Shares to you for the respective accounts of the Underwriters. Such payment and delivery shall be made at 9:30 A.M., New York City time, on , 1995 (unless another time shall be agreed to by you and the Company or unless postponed in accordance with the provisions of Section 8). The time at which such payment and delivery are actually made is called the "time of purchase". Certificates for the Firm Shares shall be delivered to you in definitive form in such names and in such denominations as you shall specify on the second business day preceding the time of purchase. For the purpose of expediting the checking of the certificates for the Firm Shares by you, the Company agrees to make such certificates available to you for such purpose at least one full business day preceding the time of purchase. Payment of the purchase price for the Additional Shares shall be made to the Company at the additional time of purchase in the same manner and at the same office as the payment for the Firm Shares. Certificates for the Additional Shares shall be delivered to you in definitive form in such names and in such denominations as you shall specify on the second business day preceding the additional time of purchase. For the purpose of expediting the checking of the certificates for the Additional Shares by you, the Company agrees to make such certificates available to you for such purpose at least one full business day preceding the additional time of purchase. 3. Representations and Warranties of the Company. The Company represents and warrants to each of the Underwriters that: (a) Each Preliminary Prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the Act; when the Registration Statement becomes or became effective and at all times subsequent thereto up to the time of purchase and the additional time of purchase, the Registration Statement and the Prospectus, and any supplements or amendments thereto, complied and will comply in all material respects with the provisions of the Act; and the Registration Statement at all such times did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus at all such times did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation or warranty with respect to any statement contained in the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning the Underwriters and furnished in writing by or on behalf of any Underwriter through you to the Company expressly for use in - --------------- * As used herein, "business day" shall mean a day on which the New York Stock Exchange is open for trading. 2 4 the Registration Statement or the Prospectus and set forth in the section of the Registration Statement and the Prospectus entitled "Underwriting"; the documents incorporated by reference in the Prospectus, at the time they were filed with the Commission, complied in all material respects with the requirements of the Exchange Act, and do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (b) As of the date of this Agreement, the Company has an authorized capitalization as set forth under the column entitled "June 30, 1995 Actual" in the section of the Registration Statement and the Prospectus entitled "Capitalization" and, as of the time of purchase, the capitalization of the Company will be as set forth under the column entitled "June 30, 1995 As Adjusted" in the section of the Registration Statement and the Prospectus entitled "Capitalization"; all of the issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware with full power and authority to (i) own its properties and conduct its business as described in the Registration Statement and the Prospectus and (ii) execute and deliver this Agreement and to issue, sell and deliver the Shares as herein contemplated. (c) The Company does not own any interest in any corporation, joint venture or partnership except VISX Partner, Inc., a Delaware corporation (the "Subsidiary"). VISX Partner, Inc. does not own any interest in any corporation, joint venture or partnership, except that it is a general partner of Pillar Point Partners, a Delaware general partnership (the "Partnership"). All of the issued and outstanding shares of capital stock of the Subsidiary are owned directly by the Company; all of such shares have been duly authorized and validly issued and are fully paid and nonassessable and, except as described in the Prospectus, are owned free and clear of any pledge, lien, encumbrance, security interest or other claim; there are no outstanding rights, subscriptions, warrants, calls, preemptive rights, options or other agreements of any kind with respect to the capital stock of the Subsidiary. (d) The Subsidiary owns the general partnership interests (the "Partnership Interests") of the Partnership contemplated by the General Partnership Agreement dated as of June 3, 1992 between the Subsidiary and Summit Partner, Inc.; the Partnership Interests are owned free and clear of any pledge, lien, encumbrance, security interest or other claim; there are no outstanding rights, subscriptions, warrants, calls, preemptive rights, options or other agreements of any kind with respect to the partnership interests of the Partnership. (e) The Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to own its properties and to conduct its businesses. (f) The Partnership has been duly organized and is validly existing as a general partnership under the laws of Delaware, with full power and authority to own its properties and to conduct its business. (g) Each of the Company and the Subsidiary is duly qualified or licensed by and is in good standing in each jurisdiction in which it owns or leases property or conducts its business and in each other jurisdiction in which the failure, individually or in the aggregate, to be so qualified or licensed could have a material adverse effect on the properties, assets, operations, business, business prospects or condition (financial or other) of the Company and the Subsidiary taken as a whole; each of the Company and the Subsidiary is in compliance in all material respects with the laws, orders, rules, regulations and directives issued or administered by each such jurisdiction; the Partnership is in compliance in all material respects with the laws, orders, rules, regulations and directives issued or administered by each jurisdiction in which it owns or leases property or conducts its business. (h) Neither the Company nor the Subsidiary is in breach of, or in default under (nor has any event occurred which with notice, lapse of time or both would constitute a breach of, or default under), its charter or bylaws, or in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, lease, mortgage, deed of trust, bank loan or credit 3 5 agreement, material supply agreement or other agreement or instrument to which the Company or the Subsidiary is a party or by which either of them may be bound or affected. The execution, delivery and performance of this Agreement, the issuance of the Shares and the consummation of the transactions contemplated hereby will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would constitute a breach of, or default under), the charter or bylaws of the Company or the Subsidiary or under any provision of any license, indenture, lease, mortgage, deed of trust, bank loan or credit agreement, material supply agreement or other agreement or instrument to which the Company or the Subsidiary is a party or by which either of them or their properties may be bound or affected, or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or the Subsidiary. (i) The Partnership is not in breach of, or in default under (nor has any event occurred which with notice, lapse of time or both would constitute a breach of, or default under), in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, lease, mortgage, deed of trust, bank loan or credit agreement, material supply agreement or other agreement or instrument to which the Partnership is a party or by which it may be bound or affected. (j) The Firm Shares and the Additional Shares, when issued and delivered to and paid for by the Underwriters as contemplated hereby, will be duly authorized and validly issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security interest, preemptive right or other claim. (k) This Agreement has been duly authorized, executed and delivered by the Company. (l) The capital stock of the Company, including the Shares, conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus; and the certificates for the Shares are in due and proper form and the holders of the Shares after making payment therefor will not be subject to personal liability under the General Corporation Law of Delaware by reason of being such holders. (m) No approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the issuance and sale of the Shares as contemplated hereby, other than registration of the Shares under the Act, clearance of the offering of the Shares with the National Association of Securities Dealers, Inc. (the "NASD") and any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters. (n) No person has the right, contractual or otherwise, to cause the Company to issue to it, or (except for such rights as have been satisfied or waived) register pursuant to the Act, any securities of the Company in consequence of the issue and sale of the Shares to the Underwriters hereunder, nor does any person have preemptive rights, rights of first refusal or other rights to purchase any of the Shares. (o) Arthur Andersen LLP, whose reports on the consolidated financial statements of the Company and the Subsidiary are included or incorporated by reference in the Registration Statement and the Prospectus, are independent public accountants with respect to the Company as required by the Act and the applicable published rules and regulations thereunder. (p) Each of the Company, the Subsidiary and the Partnership has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents, licenses and approvals from other persons, in order to conduct its business; neither the Company, the Subsidiary nor the Partnership is in violation of, or in default under, any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company, the Subsidiary or the Partnership the result of which could have a material adverse effect on the properties, assets, operations, business, business prospects or condition (financial or other) of the Company and the Subsidiary taken as a whole. 4 6 (q) All legal or governmental proceedings, contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement have been so described or filed as required. (r) Except as set forth in the Registration Statement and the Prospectus, there is no action, suit or proceeding pending or threatened against the Company, the Subsidiary or the Partnership or any of their properties, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency that could result in a judgment, decree or order having a material adverse effect on the properties, assets, operations, business, business prospects or condition (financial or other) of the Company and the Subsidiary taken as a whole. (s) The audited and unaudited financial statements included in the Registration Statement and the Prospectus present fairly the consolidated financial condition of the Company and the Subsidiary as of the dates indicated and the consolidated results of operations and cash flows of the Company and the Subsidiary for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved. (t) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, and except as may be otherwise stated in the Registration Statement or the Prospectus, there has not been: (A) any material adverse change in the properties, assets, operations, business, business prospects or condition (financial or other), present or prospective, of the Company and the Subsidiary taken as a whole; (B) any transaction, that is material to the Company and the Subsidiary taken as a whole, contemplated or entered into by the Company, the Subsidiary or the Partnership; or (C) any obligation, contingent or otherwise, directly or indirectly incurred by the Company, the Subsidiary or the Partnership that is material to the Company and the Subsidiary taken as a whole. (u) The Company has obtained the agreement of the stockholders listed on Schedule B not to sell, contract to sell, grant any option to sell, transfer or otherwise dispose of, directly or indirectly, any shares of Common Stock, or securities convertible into or exchangeable for Common Stock or warrants or other rights to purchase Common Stock for a period of 90 days from the date of the Prospectus. (v) The business, operations and facilities of the Company and the Subsidiary have been and are being conducted in compliance in all material respects with all applicable laws, ordinances, rules, regulations, licenses, permits, approvals, plans, authorizations or requirements relating to occupational safety and health, or pollution, or protection of health or the environment, or reclamation (including without limitation those relating to emissions, discharges, releases or threatened releases of pollutants, contaminants or hazardous or toxic substances, materials or wastes into ambient air, surface water, groundwater or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of chemical substances, pollutants, contaminants or hazardous or toxic substances, materials or wastes, whether solid, gaseous or liquid in nature) or otherwise relating to remediating real property in which the Company or the Subsidiary has any interest, whether owned or leased, of any governmental department, commission, board, bureau, agency or instrumentality of the United States, any state or political subdivision thereof or any foreign jurisdiction and all applicable judicial or administrative agency or regulatory decrees, awards, judgments and orders relating thereto; and neither the Company nor the Subsidiary has received any notice from a governmental instrumentality or any third party alleging any violation thereof or liability thereunder (including without limitation liability for costs of investigating or remediating sites containing hazardous substances or damages to natural resources). (w) Neither the Company nor the Subsidiary, nor any employee of the Company or the Subsidiary, has made any payment of funds of the Company or the Subsidiary prohibited by law, and no funds of the Company or the Subsidiary have been set aside to be used for any payment prohibited by law. (x) The Company, the Subsidiary and the Partnership have filed all federal or state income or franchise tax returns required to be filed and have paid all taxes shown thereon as due, and there is no material tax deficiency which has been or might be asserted against the Company, the Subsidiary or the Partnership; all material tax liabilities are adequately provided for on the books of the Company, the Subsidiary and the Partnership. 5 7 (y) The Company has not incurred any liability for any finder's fees or similar payments in connection with the transactions herein contemplated. (z) The Company, the Subsidiary and the Partnership have good title to all properties and assets owned or leased by them, in each case free and clear of all liens, security interests, pledges, charges, encumbrances, mortgages and defects (except such as are described or referred to in the Prospectus and the financial statements and the notes thereto contained therein or such as do not interfere with the use made and proposed to be made of such property by the Company, the Subsidiary and the Partnership). (aa) Neither the Company nor the Subsidiary is an "investment company" within the meaning of the Investment Company Act of 1940, as amended, or is subject to regulation under such Act. 4. Certain Covenants of the Company. The Company hereby agrees: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states as you may designate and to maintain such qualifications in effect as long as required for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares); promptly to advise you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and to use its best efforts to obtain the withdrawal of any order of suspension at the earliest practicable moment; (b) to make available to you in New York City, as soon as practicable after the Registration Statement becomes effective, and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendment or supplement thereto after the effective date of the Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; (c) to advise you promptly and if requested by you to confirm such advice in writing, (i) when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective and (ii) when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act, if required under the Act (which the Company agrees to file in a timely manner under such Rule); (d) to advise you promptly, confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for or the entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise you promptly of any proposal to amend or supplement the Registration Statement or the Prospectus, including by filing any document that would be incorporated therein by reference, and to file no such amendment or supplement to which you shall object in writing; (e) to furnish to you and, upon request to each of the other Underwriters, for a period of five years from the date of this Agreement (i) copies of all reports or other communications that the Company shall send to its stockholders or from time to time shall publish or publicly disseminate and (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, and any other document filed by the Company pursuant to Section 12, 13, 14 or 15(d) of the Exchange Act; (f) to advise the Underwriters promptly of the happening of any event known to the Company within the time during which a prospectus relating to the Shares is required to be delivered under the Act that, in the reasonable judgment of the Company, would require the making of any change in the Prospectus then being used, or in the information incorporated therein by reference, so that the Prospectus, as then supplemented, would not include an untrue statement of a material fact or omit to 6 8 state a material fact necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading and, during such time, promptly to prepare and furnish, at the Company's expense, to the Underwriters such amendments or supplements to such Prospectus as may be necessary to reflect any such change in such quantities as requested by the Underwriters, and to furnish to you a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to make generally available to its security holders, and to deliver to you, an earnings statement of the Company (which need not be audited and which will satisfy the provisions of Section 11(a) of the Act including, at the option of the Company, Rule 158) covering a period of 12 months beginning after the effective date of the Registration Statement but ending not later than 15 months after the date of the Registration Statement, as soon as is reasonably practicable after the termination of such 12-month period; (h) to furnish to you three signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and sufficient conformed copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters; (i) to furnish to you as early as practicable prior to the time of purchase and the additional time of purchase, as the case may be, but not later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of the Company and the Subsidiary that have been read by the Company's independent certified public accountants as stated in their letter to be furnished pursuant to Section 6(b); (j) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Registration Statement and the Prospectus; (k) to use its best efforts to cause the Shares to be included in the Nasdaq National Market; (l) whether or not the transactions contemplated in this Agreement are consummated or this Agreement otherwise becomes effective or is terminated, to pay all expenses, fees and taxes (other than (x) any transfer taxes and (y) fees and disbursements of your counsel except as set forth under Section 5 and clauses (iii) and (iv) below) in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and the printing and furnishing of copies of each thereof to you and to dealers (including costs of mailing and shipment), (ii) the issuance, sale and delivery of the Shares, (iii) the word processing or printing of this Agreement and any dealer agreements, and the reproduction or printing and furnishing of copies of each thereof to you and to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state laws as aforesaid (including legal fees and filing fees and other disbursements of your counsel) and the printing and furnishing of copies of any blue sky surveys to you and to dealers, (v) any listing of the Shares on any securities exchange or qualification of the Shares for inclusion in the Nasdaq National Market and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Shares by the NASD and (viii) the performance of the Company's other obligations hereunder; (m) not to sell, contract to sell, grant any option to sell, transfer or otherwise dispose of, directly or indirectly, any shares of Common Stock or securities convertible into or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or permit the registration under the Act of any shares of Common Stock, except for the registration of the Shares and the sales to you pursuant to this Agreement for a period commencing on the date hereof and continuing for days after the date of the Prospectus, without the prior written consent of Dillon, Read & Co. Inc., except for the issuance of shares of Common Stock (i) upon exercise of options granted prior to the date hereof under the Company's stock option plans to the extent such options become exercisable in accordance with their terms; and (ii) pursuant to the Company's Employee Stock Purchase Plan described in Note 5 to the Company's consolidated financial statements included in the Registration Statement; and 7 9 (n) to refrain from investing the proceeds from the sale of the Shares in a manner to cause the Company or the Subsidiary to become an "investment company" within the meaning of the Investment Company Act of 1940, as amended. 5. Reimbursement of Underwriters' Expenses. If the Shares are not delivered for any reason other than as provided in the second paragraph of Section 7, the Company will reimburse the Underwriters for all of their out-of-pocket expenses, including the fees and disbursements of their counsel. 6. Conditions of Underwriters' Obligations. The several obligations of the Underwriters hereunder are subject to the accuracy of the representations and warranties on the part of the Company on the date hereof and at the time of purchase (and the several obligations of the Underwriters at the additional time of purchase are subject to the accuracy of the representations and warranties on the part of the Company on the date hereof and at the time of purchase and at the additional time of purchase, as the case may be), the performance by the Company of its obligations hereunder and to the following conditions: (a) The Company shall furnish to you at the time of purchase and at the additional time of purchase, as the case may be, an opinion of Wilson, Sonsini, Goodrich & Rosati, counsel for the Company, addressed to the Underwriters, and dated the time of purchase or the additional time of purchase, as the case may be, with reproduced copies for each of the other Underwriters and in form satisfactory to Gibson, Dunn & Crutcher, counsel for the Underwriters, stating that: (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority (A) to own its properties and conduct its business as described in the Registration Statement and the Prospectus and (B) to execute and deliver this Agreement and to issue, sell and deliver the Shares as herein contemplated; (ii) to the best of such counsel's knowledge, the Company does not own any interest in any corporation, joint venture or partnership except the Subsidiary and the Partnership; the Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the state in which such Subsidiary is incorporated, with full corporate power and authority to own its properties and to conduct its business as described in the Registration Statement and the Prospectus; (iii) The Subsidiary owns the Partnership Interests; the Partnership Interests are owned free and clear of any pledge, lien, encumbrance, security interest or other claim; there are no outstanding rights, subscriptions, warrants, calls, preemptive rights, options or other agreements of any kind with respect to the partnership interests of the Partnership. (iv) each of the Company and the Subsidiary is duly qualified or licensed to do business by and is in good standing as a foreign corporation in each jurisdiction in which it conducts business or owns property and in which the failure, individually or in the aggregate, to be so licensed or qualified could have a material adverse effect on the properties, assets, operations, business, business prospects or condition (financial or other) of the Company and the Subsidiary taken as a whole; (v) the Partnership has been duly organized and is validly existing as a general partnership in good standing under the laws of Delaware, with full power and authority to own its properties and to conduct its business. (vi) all of the issued and outstanding shares of capital stock of the Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable and, except as set forth in the Prospectus, are owned, directly or indirectly, by the Company free and clear of any pledge, lien, encumbrance, security interest, preemptive right or other claim, and there are no rights, warrants, options or other agreements to acquire or instruments convertible into or exchangeable for any shares of capital stock or other equity interest of the Subsidiary, except as set forth in the Prospectus; (vii) this Agreement has been duly authorized, executed and delivered by the Company; 8 10 (viii) (a) the Shares, when issued and delivered to and paid for by the Underwriters, will be duly authorized, validly issued, fully paid and nonassessable, and will be free of any pledge, lien, encumbrance, claim or preemptive right; and (b) the certificates for the Shares are in due and proper form and the holders of the Shares will not be subject to personal liability by reason of being such holders; (ix) (a) the Company has an authorized capitalization as set forth under the heading "Capitalization" in the Registration Statement and the Prospectus, and (b) the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, nonassessable and free of statutory and contractual preemptive rights; (x) the capital stock of the Company, including the Shares, conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus; (xi) the Registration Statement and the Prospectus (except as to the financial statements and schedules contained or incorporated by reference therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; (xi) the Registration Statement has become effective under the Act and, to the best of such counsel's knowledge, no stop order proceedings with respect thereto are pending or threatened under the Act; (xiii) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the issuance or sale of the Shares as contemplated hereby other than registration of the Shares under the Act (except such counsel need express no opinion as to any necessary qualification under the state securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters); (xiv) the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby do not and will not conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time or both would constitute a breach of or default under), the charter or bylaws of the Company or the Subsidiary, or any provision of any license, indenture, lease, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Company or the Subsidiary is a party or by which the Company or the Subsidiary or their properties are bound or affected, or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or the Subsidiary; (xv) to the best of such counsel's knowledge, neither the Company, the Subsidiary nor the Partnership is in breach of or in default under (nor has any event occurred which with notice, lapse of time or both would constitute a breach of or default under) any license, indenture, lease, mortgage, deed of trust, bank loan or credit agreement or any other agreement or instrument to which the Company, the Subsidiary or the Partnership is a party or by which the Company, the Subsidiary or the Partnership or their properties are bound or affected or under any law, regulation or rule or any decree, judgment or order applicable to the Company, the Subsidiary or the Partnership, except for such matters as could not, individually or in the aggregate, have a material adverse effect on the properties, assets, operations, business, business prospects or condition (financial or other) of the Company and the Subsidiary taken as a whole; (xvi) all contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement have been so described or filed; (xvii) except as described in the Registration Statement and the Prospectus, there are no actions, suits or proceedings of which such counsel has knowledge pending or threatened against the Company, the Subsidiary or the Partnership, or any of their respective properties, at law or in equity, 9 11 or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency that individually or in the aggregate could result in a judgment, decree or order having a material adverse effect on the properties, assets, operations, business, business prospects or condition (financial or other) of the Company and the Subsidiary taken as a whole; (xviii) the documents incorporated by reference in the Registration Statement and Prospectus, when they were filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), complied as to form in all material respects with the Exchange Act (except as to the financial statements and schedules and other financial and statistical data contained or incorporated by reference therein, as to which such counsel need express no opinion); (xix) to the best of such counsel's knowledge, each person who has the right, contractual or otherwise, to request the Company to register pursuant to the Act securities of the Company upon the issue and sale of the Shares to the Underwriters hereunder or who has preemptive rights, rights of first refusal or other rights to purchase any of the Shares, except to the extent included in the Registration Statement, either waived such rights or was excluded from including any such shares in this offering, or from any preemptive rights, rights of first refusal or other purchase rights, in accordance with the terms thereof; (xx) the statements in the Registration Statement and the Prospectus under the captions ["Risk Factors -- Lack of FDA Approval; Government Regulation,"] "Risk Factors -- Dependence on Third-Party Sales and Marketing," ["Risk Factors -- Reliance on Patents and Proprietary Technology; Risk of Infringement and Litigation,"] "Risk Factors -- Risks Relating to Pillar Point Partners," "Risk Factors -- Potential Claims for Personal Injury," "Business -- Pillar Point and Other Licensing Agreements," "Business -- Marketing, Sales and Distribution," ["Business -- Government Regulation,"] ["Business -- Patents and Proprietary Rights,"] "Business -- Insurance and Indemnification," "Business -- Facilities" and "Business -- Legal Proceedings," insofar as they are descriptions of laws, regulations and rules, of legal and governmental proceedings or of contracts, agreements, leases and other legal documents, or refer to statements of law or legal conclusions, have been reviewed by such counsel and are accurate in all material respects [order and section names to be conformed to revised draft]; (xxi) neither the Company nor the Subsidiary is an "investment company" or a person "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended; (xxii) the sales of securities by the Company described in Item 15 of the Registration Statement were exempt from the registration requirements of the Act; and (xxiii) nothing has come to the attention of such counsel that causes them to believe that the Registration Statement or any amendment thereto at the time such Registration Statement or amendment became effective contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any supplement thereto at the date of such Prospectus or such supplement, and at all times up to and including the time of purchase contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and schedules included in the Registration Statement or Prospectus). (b) You shall have received from Arthur Andersen LLP letters dated, respectively, the date of this Agreement and the time of purchase and additional time of purchase, as the case may be, and addressed to the Underwriters (with reproduced copies for each of the Underwriters) in form and substance satisfactory to the Managing Underwriters. (c) You shall have received at the time of purchase and at the additional time of purchase, as the case may be, opinions from Gibson, Dunn & Crutcher in form and substance satisfactory to you. 10 12 (d) No amendment or supplement to the Registration Statement or the Prospectus, including documents deemed to be incorporated by reference therein, shall be filed prior to the time the Registration Statement becomes effective to which you shall have objected in writing. (e) The Registration Statement shall become effective at or before 5:00 P.M., New York City time, on the date of this Agreement and, if Rule 430A under the Act is used, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:00 P.M., New York City time, on the second full business day after the date of this Agreement; provided, however, that the Company and you and any group of Underwriters, including you, who have agreed hereunder to purchase in the aggregate at least 50% of the Firm Shares from time to time may agree in writing or by telephone, confirmed in writing, on a later date. (f) Prior to the time of purchase or the additional time of purchase, as the case may be: (i) no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration Statement and all amendments thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) the Prospectus and all amendments or supplements thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (g) Between the time of execution of this Agreement and the time of purchase or the additional time of purchase, as the case may be, there has not been: (i) any material and adverse change, present or prospective, in the properties, assets, operations, business, business prospects or condition (financial or other) of the Company and the Subsidiary taken as a whole, other than as described in the Registration Statement and the Prospectus; (ii) any transaction that is material to the Company and the Subsidiary taken as a whole contemplated or entered into by the Company or the Subsidiary, other than as described in the Registration Statement and the Prospectus; or (iii) any obligation, contingent or otherwise, directly or indirectly, incurred by the Company or the Subsidiary that is material to the Company and the Subsidiary taken as a whole, other than as described in the Registration Statement and the Prospectus. (h) The Company, at the time of purchase or additional time of purchase, as the case may be, will deliver to you a certificate of two of its executive officers to the effect that the representations and warranties of the Company as set forth in this Agreement are true and correct as of each such date and the conditions set forth in Section 6(f) and Section 6(g) have been met. (i) You shall have received a signed letter, dated the date of this Agreement, from each of the stockholders listed in Schedule B to the effect that such persons shall not sell, contract to sell, grant any option to sell, transfer or otherwise dispose of, directly or indirectly, any shares of Common Stock or securities convertible into or exchangeable for Common Stock or warrants or other rights to purchase Common Stock for a period of 90 days from the date of the Prospectus without the prior written consent of Dillon, Read & Co. Inc. (j) The Company shall have furnished to you such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement or the Prospectus as of the time of purchase and the additional time of purchase, as the case may be, as you reasonably may request. (k) The Company shall have performed such of its obligations under this Agreement as are to be performed by the terms hereof at or before the time of purchase and at or before the additional time of purchase, as the case may be. (l) The Shares shall have been approved for quotation through the Nasdaq National Market. 7. Effective Date of Agreement; Termination. This Agreement shall become effective (i) if Rule 430A under the Act is not used, when you shall have received notification of the effectiveness of the Registration 11 13 Statement, or (ii) if Rule 430A under the Act is used, when the parties hereto have executed and delivered this Agreement. The obligations of the several Underwriters hereunder shall be subject to termination in the absolute discretion of you or any group of Underwriters (which may include you) which has agreed to purchase in the aggregate at least 50% of the Firm Shares if, at any time prior to the time of purchase or, with respect to the purchase of any Additional Shares, the additional time of purchase, as the case may be, trading in securities on the New York Stock Exchange shall have been suspended or minimum prices shall have been established on the New York Stock Exchange, or if a banking moratorium shall have been declared either by the United States or New York State authorities, or if the United States shall have declared war in accordance with its constitutional processes or there shall have occurred any material outbreak or escalation of hostilities or other national or international calamity or crisis of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in your judgment, or in the judgment of such group of Underwriters, makes it impracticable to market the Shares. If you or any group of Underwriters elect to terminate this Agreement as provided in this Section 7, the Company and each other Underwriter shall be notified promptly by letter or telegram. If the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not carried out by the Underwriters for any reason permitted under this Agreement or if such sale is not carried out because the Company shall be unable to comply with any of the terms of this Agreement, the Company shall not be under any obligation or liability under this Agreement (except to the extent provided in Sections 4(l), 5 and 9), and the Underwriters shall be under no obligation or liability to the Company under this Agreement (except to the extent provided in Section 9). 8. Increase in Underwriters' Commitments. If any Underwriter shall default in its obligation to take up and pay for the Firm Shares to be purchased by it hereunder and if the number of Firm Shares which all Underwriters so defaulting shall have agreed but failed to take up and pay for does not exceed 10% of the total number of Firm Shares, the non-defaulting Underwriters shall take up and pay for (in addition to the aggregate principal amount of Firm Shares they are obligated to purchase pursuant to Section 1) the number of Firm Shares agreed to be purchased by all such defaulting Underwriters as hereinafter provided. Such Shares shall be taken up and paid for by such non-defaulting Underwriter or Underwriters in such amount or amounts as you may designate with the consent of each Underwriter so designated or, in the event no such designation is made, such Shares shall be taken up and paid for by all non-defaulting Underwriters pro rata in proportion to the aggregate number of Firm Shares set opposite the names of such non-defaulting Underwriters in Schedule A. Without relieving any defaulting Underwriter from its obligations hereunder, the Company agrees with the non-defaulting Underwriters that they will not sell any Firm Shares hereunder unless all of the Firm Shares are purchased by the Underwriters (or by substituted Underwriters selected by you with the approval of the Company or selected by the Company with your approval). If a new Underwriter or Underwriters are substituted by the Underwriters or by the Company for a defaulting Underwriter or Underwriters in accordance with the foregoing provision, the Company or you shall have the right to postpone the time of purchase for a period not exceeding five business days in order that any necessary change in the Registration Statement and the Prospectus and other documents may be effected. The term Underwriter as used in this Agreement shall refer to and include any Underwriter substituted under this Section 8 with like effect as if such substituted Underwriter had originally been named in Schedule A. 9. Indemnity by the Company and the Underwriters. (a) The Company agrees to indemnify, defend and hold harmless each Underwriter, each person that controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and each Underwriter's agents, employees, officers and directors and the agents, employees, officers and directors of any such controlling person (collectively, the "Underwriter indemnified parties") from and against any and 12 14 all losses, claims, damages, judgments, liabilities and expenses (including the fees and expenses of counsel and other expenses in connection with investigating, defending or settling any such action or claim) which, jointly or severally, any Underwriter indemnified party may incur as they are incurred (and regardless of whether such Underwriter indemnified party is a party to the litigation, if any) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement relating to the Shares or the Prospectus or any Preliminary Prospectus, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, judgments, liabilities or expenses arise out of, or are based upon, any such untrue statement or omission or alleged untrue statement or omission based upon and in conformity with information with respect to any Underwriter furnished in writing by any Underwriter through you to the Company expressly for use therein with reference to such Underwriter. This indemnity agreement will be in addition to any liability the Company otherwise may have. (b) If any action or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought or asserted against any Underwriter indemnified party, with respect to which indemnity may be sought against the Company pursuant to this Section 8, such Underwriter indemnified party shall promptly notify the Company in writing, and the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Underwriter indemnified party and payment of all fees and expenses; provided that the omission so to notify the Company shall not relieve it from any liability that it may have to any Underwriter indemnified party. An Underwriter indemnified party shall have the right to employ separate counsel in any such action or proceeding and to assume the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter indemnified party unless (i) the employment of such counsel has been authorized in writing by the Company, (ii) the Company has failed promptly to assume the defense and employ counsel satisfactory to the Underwriter indemnified party or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both the Underwriter indemnified party and the Company and such Underwriter indemnified party shall have reasonably concluded that there may be one or more legal defenses available to it that are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of such Underwriter indemnified party), in any of which events such fees and expenses shall be borne by the Company and reimbursed as they are incurred. It is understood, however, that the Company shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such Underwriter indemnified parties, which firm shall be designated in writing by Dillon, Read & Co. Inc., and that all such fees and expenses shall be reimbursed as they are incurred. The Company shall not be liable for any settlement of any such action effected without the written consent of the Company (which consent shall not be unreasonably withheld or delayed), but if settled with the written consent of the Company, or if there is a final judgment with respect thereto, the Company agrees to indemnify and hold harmless each Underwriter indemnified party from and against any loss or liability by reason of such settlement or judgment. (c) Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement, and any person that controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (collectively, the "Company indemnified parties") to the same extent as the foregoing indemnity from the Company to the Underwriter indemnified parties, but only with respect to information concerning such Underwriter furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use with respect to such Underwriter in the Registration Statement, any Preliminary Prospectus or the Prospectus. In case any action shall be brought against any Company indemnified party based on the Registration Statement, any Preliminary Prospectus or the Prospectus and in respect of which indemnity may be sought against any Underwriter pursuant to this Section 8(c), such Underwriter shall have the rights and duties given to the Company by Section 8(b) (except that if the Company shall have assumed the defense thereof such Underwriter shall not be required to do so, but may employ separate counsel therein and participate in the defense thereof, provided that the fees and expenses of such separate counsel shall be at the expense of such Underwriter), and the Company 13 15 indemnified parties shall have the rights and duties given to the Underwriter indemnified parties by Section 8(b). (d) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless any Underwriter indemnified party or any Company indemnified party, then the party required to indemnify such indemnified party under this Section 8, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, judgments, liabilities and expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand shall be deemed to be in the same proportion as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, judgments, liabilities and expenses referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any claim or action. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation or by any other method of allocation (even if the Underwriters were treated as one entity for such purpose) that does not take account of the equitable considerations referred to in this Section 8(d). Notwithstanding the provisions of this Section 8(d), no Underwriter indemnified party shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by such Underwriter indemnified party and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter indemnified party otherwise has been required to pay by reason of such untrue statement or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute pursuant to this Section 8 are several in proportion to their respective underwriting commitments and are not joint. The statements under the caption "Underwriting" in the Prospectus (to the extent such statements relate to an Underwriter) constitute the only information furnished to the Company in writing by such Underwriter expressly for use in the Registration Statement, any Preliminary Prospectus or the Prospectus. (e) The indemnity and contribution agreements contained in this Section 8 and the representations, warranties and covenants of the Company contained in this Agreement shall remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter indemnified party or by or on behalf of any Company indemnified party, and shall survive any termination of this Agreement or the issuance and delivery of the Shares. Subject to the provisions of Section 8(b) and Section 8(c), the Company and each Underwriter agree promptly to notify the other of the commencement of any litigation or proceeding against it in connection with the issuance and sale of the Shares or in connection with the Registration Statement or the Prospectus. 10. Notices. Except as otherwise herein provided, all statements, requests, notices and agreements shall be in writing or by telegram and, if to the Underwriters, shall be sufficient in all respects if delivered or sent to Dillon, Read & Co. Inc., 535 Madison Avenue, New York, New York 10022, Attention: Syndicate 14 16 Department, and if to the Company, shall be sufficient in all respects if delivered or sent to the Company at the offices of the Company at 3400 Central Expressway, Santa Clara, California 95051, Attention: Chief Financial Officer. 11. Construction. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE SECTION HEADINGS IN THIS AGREEMENT HAVE BEEN INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS AGREEMENT. 12. Parties at Interest. The Agreement herein set forth has been and is made solely for the benefit of the Underwriters, the Company, the Underwriter indemnified parties and the Company indemnified parties, and their respective successors, assigns, executors and administrators. No other person, partnership, association or corporation (including a purchaser, as such purchaser, from any of the Underwriters) shall acquire or have any right under or by virtue of this Agreement. 13. Counterparts. This Agreement may be signed by the parties in counterparts which together shall constitute one and the same agreement among the parties. If the foregoing correctly sets forth the understanding among the Company and the Underwriters, please so indicate in the space provided below for such purpose, whereupon this letter and your acceptance shall constitute a binding agreement among the Company and the Underwriters, severally. Very truly yours, VISX, INCORPORATED By: ------------------------------------ Name: Title: Accepted and agreed to as of the date first above written, on behalf of themselves, PaineWebber Incorporated and the other several Underwriters named in Schedule A DILLON, READ & CO. INC., as Managing Underwriter By: -------------------------------------------------------- Name: Title: 15 17 SCHEDULE A
NUMBER OF UNDERWRITER FIRM SHARES - --------------------------------------------------------------------------------- ----------- Dillon, Read & Co. Inc........................................................... PaineWebber Incorporated......................................................... --------- Total............................................................................ 2,500,000 =========
18 SCHEDULE B STOCKHOLDERS WHO HAVE EXECUTED LOCK-UP AGREEMENTS EX-5.1 3 OPINION OF WILSON, SONSINI, GOODRICH & ROSATI 1 EXHIBIT 5.1 [WILSON SONSINI GOODRICH & ROSATI LETTERHEAD] October 5, 1995 VISX, Incorporated 3400 Central Expressway Santa Clara, CA 95051 RE: REGISTRATION STATEMENT ON FORM S-3 Ladies and Gentlemen: We have examined the Registration Statement on Form S-3 to be filed by you with the Securities and Exchange Commission on or about October 6, 1995 (as such may thereafter be amended or supplemented, the "Registration Statement"), in connection with the registration under the Securities Act of 1933, as amended, of 2,875,000 shares of your Common Stock, $0.01 par value (the "Shares"). The Shares include an over-allotment option granted to the Underwriters to purchase 375,000 shares. We understand that the Shares are to be sold to the Underwriters for resale to the public as described in the Registration Statement. As your legal counsel, we have examined the proceedings taken, and are familiar with the proceedings proposed to be taken, by you in connection with the sale and issuance of the Shares. It is our opinion that, upon completion of the proceedings being taken or contemplated by us, as your counsel, to be taken prior to the issuance of the Shares, including the proceedings being taken in order to permit such transaction to be carried out in accordance with applicable state securities laws, the Shares, when issued and sold in the manner described in the Registration Statement and in accordance with the resolutions adopted by the Board of Directors of the Company, will be legally and validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement, including the Prospectus constituting a part thereof, and any amendments thereto. Very truly yours, /s/ WILSON, SONSINI, GOODRICH & ROSATI -------------------------------------- WILSON, SONSINI, GOODRICH & ROSATI Professional Corporation -----END PRIVACY-ENHANCED MESSAGE-----