<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
---------------------------------
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM __________ TO __________
Commission File Number 1-10694
---------------------------------
VISX, INCORPORATED
(Exact name of registrant as specified in its charter)
---------------------------------
DELAWARE 06-1161793
------------------------------ -----------------
(State or other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
3400 CENTRAL EXPRESSWAY, SANTA CLARA, CALIFORNIA 95051-0703
-----------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(Registrant's telephone number, including area code): (408) 733-2020
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
Total number of shares of common stock outstanding as of July 31, 2000:
60,524,854
<PAGE> 2
VISX, INCORPORATED
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
PART I. FINANCIAL INFORMATION
ITEM 1. CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Condensed Consolidated Interim Balance Sheets as 3
of June 30, 2000 and December 31, 1999
Condensed Consolidated Interim Statements of Operations for the 4
Three Months Ended June 30, 2000 and 1999 and for the Six Months
Ended June 30, 2000 and 1999
Condensed Consolidated Interim Statements of Cash Flows for the 5
Six Months Ended June 30, 2000 and 1999
Notes to Condensed Consolidated Interim Financial Statements 6
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Overview 9
Results of Operations 9
Liquidity and Capital Resources 10
Business Risks and Fluctuations in Quarterly Results 11
PART II OTHER INFORMATION
ITEM 1. Legal Proceedings 12
ITEM 4. Submission of Matters to a Vote of Security Holders 13
ITEM 6. Exhibits and Reports on Form 8-K 14
SIGNATURES 15
</TABLE>
Page 2
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
VISX, INCORPORATED AND SUBSIDIARIES
CONDENSED CONSOLIDATED INTERIM BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
ASSETS
<TABLE>
<CAPTION>
June 30, December 31,
2000 1999
--------- ---------
(unaudited)
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents............................... $ 17,254 $ 25,842
Short-term investments.................................. 183,713 232,517
Accounts receivable, net of allowance for doubtful
accounts of $2,418 and $1,773, respectively........... 45,529 51,254
Inventories............................................. 9,812 10,669
Deferred tax assets and prepaid expenses................ 17,250 29,192
--------- ---------
Total current assets................................. 273,558 349,474
PROPERTY AND EQUIPMENT, NET................................ 5,371 5,681
LONG-TERM DEFERRED TAX AND OTHER ASSETS.................... 24,370 7,566
--------- ---------
$ 303,299 $ 362,721
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable........................................ $ 5,552 $ 5,156
Accrued liabilities..................................... 40,821 40,772
--------- ---------
Total current liabilities............................ 46,373 45,928
--------- ---------
STOCKHOLDERS' EQUITY:
Common stock:
$.01 par value, 180,000,000 shares authorized;
64,990,089 and 64,890,946 shares issued, respectively.. 650 649
Additional paid-in capital............................... 220,732 220,049
Treasury stock, at cost: 4,441,046 and 2,939 shares,
respectively........................................... (84,332) (153)
Accumulated comprehensive income (loss).................. (1,031) (947)
Retained earnings........................................ 120,907 97,195
--------- ---------
Total stockholders' equity.......................... 256,926 316,793
--------- ---------
$ 303,299 $ 362,721
========= =========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
interim financial statements.
Page 3
<PAGE> 4
VISX, INCORPORATED AND SUBSIDIARIES
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Three months ended Six months ended
June 30, June 30,
------------------------ ------------------------
2000 1999 2000 1999
--------- --------- --------- ---------
(unaudited)
<S> <C> <C> <C> <C>
REVENUES:
System sales ........................... $ 15,322 $ 14,848 $ 35,199 $ 26,762
License, service and other revenues .... 32,683 47,655 76,803 89,690
--------- --------- --------- ---------
Total revenues ....................... 48,005 62,503 112,002 116,452
--------- --------- --------- ---------
COSTS AND EXPENSES:
Cost of revenues ....................... 16,929 12,496 33,898 23,093
Marketing, general and administrative .. 12,596 12,968 27,184 22,061
Research, development and regulatory ... 3,341 3,316 6,851 6,951
--------- --------- --------- ---------
Total costs and expenses ............. 32,866 28,780 67,933 52,105
--------- --------- --------- ---------
INCOME FROM OPERATIONS .................... 15,139 33,723 44,069 64,347
Interest and other income .............. 3,311 2,532 6,978 4,414
Litigation settlement .................. (11,856) -- (11,856) --
--------- --------- --------- ---------
INCOME BEFORE PROVISION FOR INCOME TAXES .. 6,594 36,255 39,191 68,761
Provision for income taxes ............. 2,441 14,729 15,480 27,504
--------- --------- --------- ---------
NET INCOME ................................ $ 4,153 $ 21,526 $ 23,711 $ 41,257
========= ========= ========= =========
EARNINGS PER SHARE
Basic .................................. $ 0.07 $ 0.34 $ 0.38 $ 0.66
========= ========= ========= =========
Diluted ................................ $ 0.07 $ 0.32 $ 0.37 $ 0.61
========= ========= ========= =========
SHARES USED FOR EARNINGS PER SHARE
Basic .................................. 60,725 63,283 62,171 62,711
========= ========= ========= =========
Diluted ................................ 62,910 68,185 64,587 67,522
========= ========= ========= =========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
interim financial statements.
Page 4
<PAGE> 5
VISX, INCORPORATED AND SUBSIDIARIES
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
Six months ended
June 30,
----------------------
2000 1999
-------- --------
(unaudited)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income .................................................... $ 23,711 $ 41,257
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization .............................. 1,574 1,435
Increase (decrease) in cash flows from changes in
operating assets and liabilities:
Accounts receivable ..................................... 5,725 (8,604)
Inventories ............................................. 857 (2,256)
Deferred tax assets and prepaid expenses ................ 11,942 (5,438)
Long-term deferred tax and other assets ................. (16,804) (1,031)
Accounts payable ........................................ 396 3,227
Accrued liabilities ..................................... 50 5,687
-------- --------
Net cash provided by operating activities .................. 27,451 34,277
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures .......................................... (1,264) (1,953)
Purchase of short-term investments ............................ -- (87,322)
Proceeds from maturities of short-term investments ............ 48,721 47,016
-------- --------
Net cash (used in) investing activities .................... 47,457 (42,259)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Exercise of stock options, including income tax benefit ....... 3,126 45,317
Repurchase of common stock .................................... (86,622) (4,210)
-------- --------
Net cash provided by (used in) financing activities ........ (83,496) 41,107
-------- --------
Net increase (decrease) in cash and cash equivalents ............. (8,588) 33,125
Cash and cash equivalents, beginning of period ................... 25,842 29,870
-------- --------
Cash and cash equivalents, end of period ......................... $ 17,254 $ 62,995
======== ========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
interim financial statements.
Page 5
<PAGE> 6
VISX, INCORPORATED AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
JUNE 30, 2000
(UNAUDITED)
1. BASIS OF PRESENTATION:
We prepared our Condensed Consolidated Interim Financial Statements in
conformity with Securities and Exchange Commission rules and regulations.
Accordingly, we condensed or omitted certain information and footnote
disclosures normally included in financial statements prepared in accordance
with generally accepted accounting principles. Please read our 1999 Annual
Report and Form 10-K to gain a more complete understanding of these interim
financial statements.
We included in these interim financial statements all adjustments
(consisting primarily only of normal recurring adjustments) necessary to present
fairly our results for the interim period. Our interim financial statements have
not been audited.
2. EARNINGS PER SHARE:
Basic earnings per share ("EPS") equals net income divided by the
weighted average number of common shares outstanding. Diluted EPS equals net
income divided by the weighted average number of common shares outstanding plus
dilutive potential common shares calculated in accordance with the treasury
stock method. All amounts in the following table are in thousands, except per
share data.
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
------------------- -------------------
2000 1999 2000 1999
------- ------- ------- -------
<S> <C> <C> <C> <C>
NET INCOME ............................................... $ 4,153 $21,526 $23,711 $41,257
======= ======= ======= =======
BASIC EARNINGS PER SHARE
Income available to common shareholders ................. $ 4,153 $21,526 $23,711 $41,257
Weighted average common shares outstanding .............. 60,725 63,283 62,171 62,711
------- ------- ------- -------
Basic Earnings Per Share ................................ $ 0.07 $ 0.34 $ 0.38 $ 0.66
======= ======= ======= =======
DILUTED EARNINGS PER SHARE
Income available to common shareholders ................. $ 4,153 $21,526 $23,711 $41,257
------- ------- ------- -------
Weighted average common shares outstanding .............. 60,725 63,283 62,171 62,711
Dilutive potential common shares from stock options ..... 2,185 4,902 2,416 4,811
------- ------- ------- -------
Weighted average common shares and dilutive potential
common shares ........................................ 62,910 68,185 64,587 67,522
------- ------- ------- -------
Diluted Earnings Per Share .............................. $ 0.07 $ 0.32 $ 0.37 $ 0.61
======= ======= ======= =======
</TABLE>
Options to purchase 2,860,000 shares and 18,000 shares during the three
month periods ended June 30, 2000 and 1999, respectively, and 2,585,000 shares
and 59,000 shares outstanding during the six month periods ended June 30, 2000
and 1999, respectively, were excluded from the computation of diluted EPS
because the options' exercise prices were greater than the average market price
of the Company's common stock during these periods.
Page 6
<PAGE> 7
3. INVENTORIES (in thousands):
<TABLE>
<CAPTION>
June 30, December 31,
2000 1999
----------- ------------
(unaudited)
<S> <C> <C>
Raw materials and subassemblies .............. $ 4,878 $ 5,310
Work in process .............................. 3,910 4,756
Finished goods ............................... 1,024 603
------- -------
Total ...................................... $ 9,812 $10,669
======= =======
</TABLE>
4. COMPREHENSIVE INCOME (in thousands):
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
--------------------- ----------------------
2000 1999 2000 1999
-------- -------- -------- --------
<S> <C> <C> <C> <C>
NET INCOME .................................... $ 4,153 $ 21,526 $ 23,711 $ 41,257
OTHER COMPREHENSIVE INCOME
Change in unrealized holding gains (losses) on
available-for-sale securities ............. 189 (361) (82) (608)
Change in accumulated foreign currency
translation adjustment .................... 18 (13) (2) (10)
-------- -------- -------- --------
COMPREHENSIVE INCOME .......................... $ 4,360 $ 21,152 $ 23,627 $ 40,639
======== ======== ======== ========
</TABLE>
5. NEW ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standard No. 133 "Accounting for Derivative Instruments
and Hedging Activities" ("SFAS No. 133") which establishes accounting and
reporting standards for derivative instruments, including certain derivative
instruments imbedded in other contracts, and for hedging activities. It requires
that we recognize all derivatives as either assets or liabilities in the
statement of financial position and measure those instruments at fair value. We
are required to adopt SFAS No. 133 in the first quarter of 2001. We do not
expect the impact of adopting SFAS No. 133 to have a material effect on our
financial position or results of operations.
In December 1999, the Securities and Exchange Commission issued Staff
Accounting Bulletin No. 101 ("SAB No. 101"), Revenue Recognition in Financial
Statements. It provides guidance on applying generally accepted accounting
principles to revenue recognition issues in financial statements. Among other
things, SAB No. 101 would result in a change from the established practice in
many industries of recognizing revenue at the time of shipment of a system, and
instead would delay recognition until the time of installation. A change in
revenue recognition reporting practices could have a material affect on revenue
in any particular reporting period. We will adopt SAB No. 101 as required by the
fourth quarter of 2000 and are evaluating the effect that SAB No. 101 may have
on our financial statements.
Page 7
<PAGE> 8
6. LITIGATION SETTLEMENT
On May 4, 2000 we reported the settlement of a number of litigation
matters: (1) antitrust and patent claims between VISX and Jon Dishler, et al.,
(2) the action filed by John Taboada against Stephen Trokel, VISX, et al., and
(3) an action filed by a group of former clinical investigators of the system
made by Taunton Technologies Corporation. In connection with these settlements,
VISX paid a total of $11,856,000 ($0.11 per share, after taxes) in one-time
payments and related costs and fees.
Page 8
<PAGE> 9
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
In our Management's Discussion and Analysis of Financial Condition and
Results of Operations we review our past performance and, where appropriate,
state our expectations about future activity in forward-looking statements. Our
future results may differ from our expectations. We have described our business
and the challenges and risks we may face in the future in Items 1 and 3 of our
1999 Annual Report and Form 10-K and under "Business Risks and Quarterly
Fluctuations" below. Please read these items carefully.
OVERVIEW
We develop products and procedures to improve people's eyesight using
lasers. Our principal product, the VISX STAR S2(TM) Laser System ("VISX
System"), is designed to correct the shape of a person's eyes to reduce or
eliminate their need for eyeglasses or contact lenses. The Food and Drug
Administration ("FDA") has approved the VISX System for use in the treatment of
most types of refractive vision disorders including nearsightedness,
farsightedness, and astigmatism. We sell VisionKey(R) cards to control the use
of the VISX System and to collect license fees for the use of our patents.
The laser vision correction industry is evolving rapidly. New
developments and changes in market conditions frequently affect VISX and could
harm our business in the future. We may face increased competition from
manufacturers and users of other laser vision correction systems or new
competition from non-laser methods for correcting a person's vision. Patients'
and doctors' desire for laser vision correction using VISX Systems may not grow
or may decline in the future. Prices for our products and services may change as
the result of new developments in our market. Due to adverse determinations in
current and future patent and antitrust litigation, damages may be assessed
against us and we may not be able to enforce our current patent rights or
collect license fees. All of these factors could cause orders and revenues for
VISX Systems and VisionKey(R) cards to fluctuate or even decline. Accordingly,
our past results may not be useful in predicting our future results.
RESULTS OF OPERATIONS
<TABLE>
<CAPTION>
Three Months Ended June 30, Six Months Ended June 30,
------------------------------- --------------------------------
REVENUES (000's) 2000 1999 Change 2000 1999 Change
------- ------- ------ -------- -------- ------
<S> <C> <C> <C> <C> <C> <C>
System sales ................... $15,322 $14,848 3% $ 35,199 $ 26,762 32%
Percent of total revenues .. 31.9% 23.8% 31.4% 23.0%
License, service & other
revenues ................... 32,683 47,655 (31)% 76,803 89,690 (14)%
Percent of total revenues .. 68.1% 76.2% 68.6% 77.0%
Total .......................... $48,005 $62,503 (23)% $112,002 $116,452 (4)%
</TABLE>
We sold 81 and 167 laser systems during the second quarter and first six
months of 2000, respectively, as compared to 61 and 112 in the comparable
periods of the prior year, respectively. In the U.S. we sold 50 laser systems in
the second quarter of 2000 as compared to 48 in the comparable period of the
prior year. In international markets we sold 31 laser systems in the second
quarter of 2000 as compared to 13 in the prior year. This growth in
international markets was due to long term development efforts such as hiring
new distributors in recent years and expanding market support programs. Average
selling prices for our current product during the quarter were lower than in the
comparable period of the prior year mainly as the result of our introduction of
upcoming new products including our next generation STAR S3(TM) Excimer Laser
System and our WaveScan(TM) Wavefront System ("WaveScan").
During the second quarter and first six months of 2000, we shipped 43%
and 41% more VisionKey(R) cards in the U.S. for laser vision correction surgery,
respectively, than in the
Page 9
<PAGE> 10
comparable periods of the prior year. We believe that card shipments increased
because laser vision correction has grown more popular with consumers.
Nevertheless, based on our analysis of sales data and developments in the U.S.
laser vision correction market, we concluded in the first quarter that consumer
concerns about the pricing of laser vision correction were dampening the
industry's potential for growth. In an effort to address these concerns and to
help broaden the appeal for laser vision correction, on February 22, 2000 we
reduced our U.S. license fee by 60% to $100 per procedure from the $250 fee we
had previously charged since we first entered the U.S. market in 1996. This
change caused license, service and other revenue to decline from the prior year,
despite an increase of more than 40% in the quantity of VisionKey(R) cards
shipped in the U.S. While we expect that our license fee reduction will result
in a decline in license revenue, as well as total revenue, for the remainder of
2000 as compared to the corresponding periods of 1999, we believe the reduced
fee will help promote faster growth of laser vision correction procedures
performed using VISX Systems in the U.S. We cannot, however, predict with
certainty when or whether growth in procedures will offset the decline in
procedure fee, nor even that procedures will increase.
<TABLE>
<CAPTION>
Three Months Ended June 30, Six Months Ended June 30,
----------------------------------- --------------------------------
COSTS & EXPENSES (000's) 2000 1999 Change 2000 1999 Change
--------- --------- ----- --------- ------- ------
<S> <C> <C> <C> <C> <C> <C>
Cost of revenues ............... $ 16,929 $ 12,496 35% $ 33,898 $23,093 47%
Percent of total revenues .. 35.3% 20.0% 30.3% 19.8%
Marketing, gen'l and admin ..... 12,596 12,968 (3)% 27,184 22,061 23%
Percent of total revenues .. 26.2% 20.7% 24.3% 18.9%
R&D and regulatory ............. 3,341 3,316 1% 6,851 6,951 (1)%
Percent of total revenues .. 7.0% 5.3% 6.1% 6.0%
</TABLE>
Cost of revenues increased in the second quarter and first half of 2000
over the comparable periods of the prior year because we sold more systems and
serviced a larger installed base of systems. Our gross profit margin was lower
in 2000 than in 1999 due to lower license fees and lower average selling prices
of current products as discussed in the section on revenue. Marketing, general
and administrative expenses were down slightly in the second quarter though
increased for the first six months of 2000 from the comparable periods of the
prior year. Legal expenses were lower as settlements were reached and trials
completed in several cases. Offsetting the decline in legal expenses, we
increased spending on marketing programs targeted towards consumers. In research
and development we focused on three areas: new capabilities for the VISX STAR
Excimer Laser platform, development of new products such as our WaveScan System,
and research into new technologies. We continued to conduct clinical studies and
prepare submissions designed to obtain additional approvals from the FDA and
regulatory authorities in other countries.
Interest income increased because we have generated cash from operations
over the past 12 months and have invested this in additional interest bearing
securities. We accrued income taxes based on our expected effective income tax
rate for all of 2000, net of credits anticipated.
LIQUIDITY AND CAPITAL RESOURCES
Cash, cash equivalents and short-term investments ("cash") and working
capital were as follows.
<TABLE>
<CAPTION>
(000's)
June 30, 2000 December 31, 1999
------------- -----------------
<S> <C> <C>
Cash, cash equivalents and short-term investments ... $200,967 $258,359
Working capital ................................ 227,185 303,546
</TABLE>
Page 10
<PAGE> 11
Cash decreased by $57 million in the first six months of 2000 because
the $27 million we generated from operations was more than offset by the $87
million we spent to repurchase 4.5 million shares of VISX stock on the open
market.
Purchases of short-term investments represent reinvestment of the
proceeds from maturities of short-term investments and investment of cash and
cash equivalents into short-term investments.
We anticipate that our current cash, cash equivalents and short-term
investments, as well as anticipated cash flows from operations, will be
sufficient to meet our working capital and capital equipment needs at least
through the next twelve months.
BUSINESS RISKS AND FLUCTUATIONS IN RESULTS
Our results of operations have varied widely in the past, and they could
continue to vary significantly due to a number of factors, including:
- Patients' and doctors' acceptance of laser vision correction as a
preferred means of vision correction;
- Competition from manufacturers and users of other laser vision correction
systems;
- Introduction of new methods for vision correction which render our
products less competitive or obsolete;
- Changes in prices for our products and services as the result of new
developments in our markets;
- Developments in antitrust litigation to which we are currently a party,
including legal actions brought against us by private parties and the
legal action pending before the FTC;
- Developments in patent litigation that we have initiated, particularly to
the extent that adverse developments in these proceedings could limit our
ability to collect license fees from sellers and users of laser vision
correction equipment; and
- Developments in patent litigation in which we are a defendant,
particularly to the extent that adverse developments in these proceedings
result in damages being assessed against VISX, prevent us from
manufacturing or selling our products, or render certain of our
patents invalid or unenforceable, which would reduce the scope of
proprietary protection available to us and could limit our ability to
collect license fees from sellers and users of laser vision correction
equipment.
We anticipate that our revenue will be significantly lower in 2000 than in
1999 as a result of the new $100 license fee we began charging in February,
2000. In the future, our revenue may fluctuate significantly. Any shortfall in
revenues below expectations would likely have an immediate impact on our
earnings per share, which could adversely affect the market price of our common
stock. Our operating expenses, which include sales and marketing, research and
development and general and administrative expenses, are based on our
expectations of future revenues and are relatively fixed in the short term.
Accordingly, if revenues fall below expectations, we will not be able to reduce
our spending rapidly in response to such a shortfall. This will adversely affect
our operating results. We devote significant resources to research and
development. We anticipate that the resulting new products and capabilities will
be well received by customers and generate future revenue, however the actual
results may vary from expectations. Due to the foregoing factors, we believe
that our results of operations in any given period may not be a good indicator
of our future performance.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
There were no material changes during the six months ended June 30, 2000
to our exposure to market risk for changes in interest rates and foreign
currency exchange rates.
Page 11
<PAGE> 12
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
VISX is engaged in numerous legal proceedings. Generally, the litigation
and other proceedings center on the validity or enforceability of VISX's
patents, and on whether infringement of the patents has occurred. In addition,
VISX's use of patents and its business practices are being contested in several
proceedings as violations of antitrust and similar laws. The results of these
complex legal proceedings are very difficult to predict with certainty. Because
a number of the proceedings have issues in common, an adverse determination in
one proceeding could lead to adverse determinations in one or more of the other
pending proceedings. Adverse determinations in any of these proceedings could
limit our ability to collect equipment and use fees in certain markets, could
give rise to significant monetary damages, could prevent VISX from manufacturing
and selling the VISX System, and therefore could have a material, adverse effect
on our business, financial position and results of operations.
For a complete description of legal proceedings, see VISX's annual
report on Form 10-K for the year ended December 31, 1999 and report on Form 10-Q
for the quarter ended March 31, 2000. During the quarter ended June 30, 2000,
there were no material developments with respect to such previously existing
proceedings and no new material proceedings not previously disclosed, except as
follows:
PATENT LITIGATION: NIDEK
On August 8, 2000 Nidek Co. Ltd. ("Nidek") filed an action in Tokyo
District Court in Japan against VISX's Japanese subsidiary and others alleging
that the defendants infringe Nidek's Japanese Patent No. 2809959 and seeking
damages and injunctive relief. VISX will contest the action and plans to
initiate proceedings in the Japan Patent Office challenging the validity of
Nidek's Japanese Patent No. 2809959. It is too early to predict the outcome of
these proceedings. Nidek has also advised VISX that it believes it has certain
United States patent rights that are germane to current VISX systems, including
a patent that relates to the same technology as the patent dispute in Japan. An
adverse determination in any patent infringement action brought by Nidek against
VISX could have a material adverse effect on VISX's business, financial position
and results of operations.
ANTITRUST CLASS ACTIONS
Plaintiff in Brisson v. Summit Technology, Inc. et al. ("the Brisson
action") brought a purported antitrust class action in state court in Minnesota
on behalf of Minnesota patients who underwent laser vision correction and
allegedly indirectly paid per procedure license fees to VISX or Summit.
Defendants VISX and Summit moved to stay the Brisson action in deference to an
earlier-filed multi-state patient class action brought in Santa Clara County,
California ("In re PRK"). On June 16, 2000, the judge stayed the proceedings
pending the resolution of the In re PRK action.
On October 14, 1999, Plaintiffs in the Antitrust Class Actions pending
in the Multi-District Litigation in Arizona moved for certification of a
nationwide class of direct purchasers who paid per procedure license fees to
VISX or Summit. On August 1, 2000, Magistrate Judge Virginia Mathis issued a
Report and Recommendation supporting the certification of a nationwide class of
direct purchasers who paid a per-use royalty to defendants between September
1995 and the date of trial. Discovery in that case is ongoing and no trial date
has yet been set.
SHAREHOLDER ACTIONS
The U.S. District Court for the Northern District of California has
consolidated and appointed a lead plaintiff in the securities class actions
filed against VISX and certain of its officers captioned In re VISX, Inc.
Securities Litigation C-00-0649-CRB. The lead plaintiff has filed a
consolidated amended complaint.
On May 30, 2000 VISX filed a demurrer to the derivative action filed in
the Superior Court of the State of California, Santa Clara County.
RECENT SETTLEMENTS
As previously reported in our report on Form 8-K filed on May 4, 2000
and in our report on Form 10-Q for the quarter ended March 31, 2000, VISX
settled a number of litigation matters during the second quarter. Among the
claims settled were the antitrust and other claims against VISX filed by Jon
Dishler, DTC Eye
Page 12
<PAGE> 13
Surgery Center, Inc., DTC Eye Associates, PC, Laser Institute of the Rockies,
LLC, and TELCO The Excimer Laser Company Pty, Ltd. in the U.S. District court
for the District of Colorado. The settlement also included a resolution of the
claims filed in 1996 by Pillar Point Partners, Summit Partner, Inc. and VISX
Partner, Inc. against those same parties.
Also settled was the action filed by John Taboada against Stephen
Trokel, VISX, and VISX Partner, Inc. in the U.S. District Court for the Western
District of Texas (USDC West. Dist. Tex. SA-97-CA-794-FB) seeking, among other
things, a declaration that Taboada is the inventor of VISX's U.S. Patent No.
5,108,388 (the "'388 Patent") and a payment of royalties received by VISX for
the `388 Patent. In connection with the settlement, the parties have signed and
filed with the court a stipulated judgment stating that Dr. Trokel is the
sole inventor of the `388 Patent. A stipulated dismissal was also filed in the
proceeding initiated by Taboada in U.S. District Court for the District Court of
Columbia in which Taboada had sought a stay of the reexemination of the `388
patent currently pending in the U.S. Patent and Trademark Office.
VISX also settled an action filed against it by a group of former
clinical investigators of the system made by Taunton Technologies Corporation in
which the plaintiffs alleged federal antitrust law violations, breach of
contract, and unjust enrichment.
In connection with these settlements, VISX paid a total of $11,856,000
in one-time payments and related costs and fees.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
a) We held our Annual Meeting of Stockholders on May 19, 2000.
b) The stockholders voted as follows on the election of all six members of the
Board of Directors. There were no abstentions or non-votes for any nominee
and all six were elected as directors.
<TABLE>
<CAPTION>
Name For Against
<S> <C> <C>
Elizabeth H. Davila 52,621,416 2,911,657
Glendon E. French 52,829,097 2,703,976
John W. Galiardo 52,831,788 2,701,285
Jay T. Holmes 52,645,805 2,887,268
Mark B. Logan 52,598,148 2,934,925
Richard B. Sayford 52,823,998 2,709,075
</TABLE>
c) The stockholders voted as follows on a proposal to ratify the adoption of
the 2000 Stock Plan.
<TABLE>
<CAPTION>
For Against Abstain NON-VOTES
--- ------- -------
<S> <C> <C> <C>
46,005,928 9,325,299 201,845 1
</TABLE>
d) The stockholders voted as follows on a proposal to ratify the appointment
of Arthur Andersen LLP as auditors of the Company for 2000.
<TABLE>
<CAPTION>
For Against Abstain
--- ------- -------
<S> <C> <C>
55,007,302 415,769 110,002
</TABLE>
Page 13
<PAGE> 14
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
a) Exhibits.
Ex. 27 Financial Data Schedule
b) Reports on Form 8-K.
VISX filed one report on Form 8-K during or after the period covered by this
report, as follows:
(1) Report on Form 8-K filed on August 4, 2000 under Item 5 (Other Events)
for the purpose of reporting that VISX's Board of Directors had adopted
a stockholder rights plan. Attached as exhibits to the Form 8-K were a
copy of the Rights Agreement dated August 3, 2000 between VISX and Fleet
National Bank, as rights agent, and VISX's press release dated July 28,
2000 announcing the adoption of the rights plan.
Page 14
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
VISX, Incorporated
------------------
(Registrant)
August 14, 2000 /s/ Mark B. Logan
(Date) --------------------------------
Mark B. Logan
Chairman of the Board and
Chief Executive Officer
August 14, 2000 /s/ Timothy R. Maier
(Date) --------------------------------
Timothy R. Maier
Executive Vice President and
Chief Financial Officer (principal
financial officer)
August 14, 2000 /s/ Derek A. Bertocci
(Date) --------------------------------
Derek A. Bertocci
Vice President, Controller (principal
accounting officer)
Page 15
<PAGE> 16
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
27 Financial Data Schedule
</TABLE>
Page 16
