-----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, NMXM4Ilp9fKqmL11AeiE+U5izBmiwQGgUpjOm8W0NhkOf/Fvx8ZElvgjdGvP6rfE YPEbo6cnDLQefLJgbtYc5w== 0000928475-00-000157.txt : 20001206 0000928475-00-000157.hdr.sgml : 20001206 ACCESSION NUMBER: 0000928475-00-000157 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20001205 SUBJECT COMPANY: 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: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-40100 FILM NUMBER: 783538 BUSINESS ADDRESS: STREET 1: 3400 CENTRAL EXPRESSWAY CITY: SANTA CLARA STATE: CA ZIP: 95051 BUSINESS PHONE: 4087332020 MAIL ADDRESS: STREET 1: VISX INC STREET 2: 3400 CENTRAL EXPRESSWAY CITY: SANTA CLARA STATE: CA ZIP: 95051-0703 FORMER COMPANY: FORMER CONFORMED NAME: TAUNTON TECHNOLOGIES INC DATE OF NAME CHANGE: 19901212 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ICAHN CARL C ET AL CENTRAL INDEX KEY: 0000921669 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 100 SOUTH BEDFORD ROAD CITY: MT KISCO STATE: NY ZIP: 10549 BUSINESS PHONE: 9142427700 MAIL ADDRESS: STREET 1: 200 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10166 SC 13D/A 1 0001.txt AMENDMENT NO. 2 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No.2)* VISX, Incorporated (Name of Issuer) Common Shares (Title of Class of Securities) 92844S105 (CUSIP Number) Marc Weitzen, Esq. General Counsel, Icahn Associates Corp. & affiliated companies 767 Fifth Avenue, 47th Floor New York, New York 10153 (212) 702-4388 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 5, 2000 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Section 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box / /. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). -1- SCHEDULE 13D CUSIP No. 92844S105 1 NAME OF REPORTING PERSON High River Limited Partnership S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) // 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 3,245,505 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 3,245,505 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,245,505 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* // 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.36226% 14 TYPE OF REPORTING PERSON* PN -2- SCHEDULE 13D CUSIP No. 92844S105 1 NAME OF REPORTING PERSON Barberry Corp. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) // 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 2,774,500 8 SHARED VOTING POWER 3,245,505 9 SOLE DISPOSITIVE POWER 2,774,500 10 SHARED DISPOSITIVE POWER 3,245,505 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,020,005 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* // 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.94633% 14 TYPE OF REPORTING PERSON* CO -3- SCHEDULE 13D CUSIP No. 92844S105 1 NAME OF REPORTING PERSON Carl C. Icahn S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) // 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 6,020,005 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 6,020,005 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,020,005 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* // 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.94633% 14 TYPE OF REPORTING PERSON* IN -4- SCHEDULE 13D CUSIP No. 92844S105 1 NAME OF REPORTING PERSON Gail Golden S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* PF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) // 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 1,490 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 1,490 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,490 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* // 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.0000246% 14 TYPE OF REPORTING PERSON* IN -5- SCHEDULE 13D Item 1. Security and Issuer The Schedule 13D filed with the U.S. Securities and Exchange Commission on October 20, 2000, relating to the common shares, $.01 par value (the "Shares"), of VISX, Incorporated, a Delaware corporation (the "Issuer") and amended on November 6, 2000, by the Registrants, is amended to furnish additional information set forth herein. All capitalized terms not otherwise defined shall have the meaning ascribed to such terms in the previously filed statement on Schedule 13D. Item 4. Purpose of Transaction Item 4 is hereby amended to add the following: Registrants believe that Issuer and its stockholders would benefit from a consolidation of Issuer with a larger pharmaceutical or medical device company which would allow the Issuer's products and services to be bundled with other ophthalmic products and services, achieving better operating leverage through the consolidated entity's extensive field service capabilities. Registrants have attempted, without success, to contact Issuer's Chief Executive Officer to discuss this matter. Registrants have determined to conduct a proxy contest to elect directors to Issuer's Board of Directors who would favorably consider implementing Registrant's views that such a consolidation would be beneficial to Issuer and its stockholders. In furtherance thereof, Barberry notified Issuer on December 5, 2000, in accordance with Issuer's By-laws, of its intention to propose the nomination of persons for election as directors at the forthcoming annual meeting of Issuer's stockholders. A copy of the notification letter ("the Notification Letter") is attached hereto as Exhibit 1 and incorporated in its entirety herein by reference. The Notification Letter provides Issuer with certain information required by Issuer's by-laws concerning Barberry and certain of its affiliates and concerning the nominees. In furtherance of the possible proxy contest, High River has entered into agreements with the intended nominees (each a "Nominee Agreement") named in the Notification Letter. The form of the Nominee Agreement is attached hereto as Exhibit 2 and incorporated in its entirety by reference. Registrants will continue to seek to discuss with Issuer means of enhancing stockholder value. If and when Registrants determine not to proceed with the proxy contest, they will so notify Issuer. -6- Item 6. Contracts, Arrangements, Understandings or Relationship with Respect to Securities of the Issuer Except as described herein, none of the Registrants has any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any securities of the Issuer, including but not limited to the transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or losses, or the giving or withholding of proxies. Item 7. Material to be Filed as Exhibits 1. Notification Letter from Barberry Corp. to Issuer dated December 5, 2000 2. Form of Nominee agreement -7- SIGNATURE After reasonable inquiry and to the best of the undersigned knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: December 1, 2000 BARBERRY CORP. By: /s/ Carl C. Icahn Name: Carl C. Icahn Title: President HIGH RIVER LIMITED PARTNERSHIP By: BARBERRY CORP., General Partner By: /s/ Carl C. Icahn Name: Carl C. Icahn Title: President /s/ Gail Golden GAIL GOLDEN /s/ Carl C. Icahn CARL C. ICAHN [Signature Page of Amendment No. 2 of Schedule 13D with respect to VISX, Incorporated] -8- EX-99 2 0002.txt LETTER Exhibit 1 Barberry Corp. 1 Wall Street Court New York, NY 10005 December 5, 2000 Via Federal Express VISX, Incorporated 3400 Central Expressway Santa Clara, CA 95051-0703 Attention: Corporate Secretary Re: Stockholder Notice to Submit Business Ladies and Gentlemen: Barberry Corp. ("Barberry") is hereby submitting this notice on the date hereof in order to comply with the requirements (the "Bylaw Requirements") set forth in Article I, Section 5 of the By-Laws of VISX, Incorporated (the "Corporation"). Barberry's address is 1 Wall Street Court, New York, New York 10005. Barberry is the record owner directly of 1,000 shares (the "Direct Shares") of common stock, par value $.01 per share, of the Corporation ("Common Stock"), which constitutes less than one percent (1%) of the outstanding Common Stock. Barberry and its affiliates own beneficially approximately 9.95% of the of the outstanding Common Stock. For further information on the beneficial ownership of the Corporation's securities by Barberry and the affiliates of Barberry, including, without limitation, High River Limited Partnership ("High River"), and Carl C. Icahn and Gail Golden, reference should be made to Annex A to this notice. Barberry hereby represents that it intends to appear at the 2001 annual meeting of the Corporation's stockholders (the "Annual Meeting") in person or by proxy to submit the business specified in this notice. Barberry is seeking at the Annual Meeting to elect the following persons as members of the Board of Directors of the Corporation and, in that regard, proposes to nominate the following persons (each a "Nominee" and, collectively, the "Slate") as nominees for election as directors of the Corporation at the Annual Meeting: Jerome M. Becker Russell D. Glass Robert L. Knauss Carl C. Icahn VISX, Incorporated December 5, 2000 Page 2 Samuel D. Waksal Paul J. Zegger It appears from the most recent publicly available version of the Bylaws of VISX, the Amended and Restated Bylaws as revised through December 13, 1995 (as filed with the SEC as Exhibit 3 to Quarterly Report on Form 10-Q for the quarter ended June 30, 1996) provides for five (5) directors in Article III, Section 2. Six (6) directors were nominated and elected at the Corporation's 2000 Annual Meeting. Therefore, in the event that only five (5) directors are to be elected at the 2001 Annual Meeting, Robert L. Knauss will not be nominated by Barberry. In the event that, for any reason, more than six (6) directors are to be elected, Barberry will supply the names and information regarding any additional nominees. The reason for conducting such business at the Annual Meeting is to elect a slate of directors of the Corporation who we believe will better enhance stockholders value than the current board of directors. In that regard, Barberry intends to propose the following resolution at the 2001 Annual Meeting (and/or any other form of resolution required by the Corporation to nominate these Nominees): "It is hereby being resolved, that the following persons are nominated to be elected as members of the Board of Directors of the Corporation: Jerome M. Becker Russell D. Glass Robert L. Knauss Carl C. Icahn Samuel D. Waksal Paul J. Zegger" In the event that only five (5) directors are to be elected at the 2001 Annual Meeting, Robert L. Knauss will be stricken from the list of Nominees set forth in the above form of resolution. As required by the Bylaw Requirements, Barberry hereby advises you that certain information relating to each of the Nominees as required by the Bylaw Requirements is set forth in Annexes C through H of this notice. Except as set forth herein or in any of such Annexes (or any attachments thereto), to the best knowledge of Barberry (i) no Nominee owns any securities of the Corporation or any parent or subsidiary of the Corporation, directly or indirectly, beneficially or of record, or has purchased or sold any securities of the Corporation within the past two years, and none of their associates beneficially owns, directly or indirectly, any securities of the Corporation, (ii) no Nominee, his associates or any member of his immediate family, or Barberry or their associates has any arrangement or understanding with any VISX, Incorporated December 5, 2000 Page 3 person (a) with respect to any future employment by the Corporation or its affiliates or (b) with respect to future transactions to which the Corporation or any of its affiliates will or may be a party, nor any material interest, direct or indirect, in any transaction, or series of similar transactions, that has occurred since January 1, 1999 or any currently proposed transaction, or series of similar transactions, to which the Corporation or any of its subsidiaries was or is to be a party and in which the amount involved exceeds $60,000, (iii) no Nominee is, or was within the past year, a party to any contract, arrangement or understanding with any person with respect to any securities of the Corporation, including, but not limited to, joint ventures, loan or option arrangements, puts or calls, guarantees against loss or guarantees of profit, division of losses or profits or the giving or withholding of proxies, (iv) no Nominee or any of his associates has any arrangement or understanding with any person pursuant to which he was or is to be selected as a director, nominee or officer of the Corporation and (v) there is no other information with respect to any Nominee that is required to be disclosed in solicitations of proxies for election of directors or is otherwise required by the rules and regulations of the Securities and Exchange Commission promulgated under the Securities Exchange Act of 1934, as amended. Matters disclosed in any part of this notice, including the Annexes and any attachments thereto, should be deemed disclosed for all purposes of this notice. The written consent of each of the Nominees as required by the Bylaw Requirements is attached as Annex I. The following is a general description of all arrangements or understandings between certain affiliates of Barberry, including, without limitation, High River and each Nominee and any other person, pursuant to which the nomination or nominations set forth above are being made, which, to the extent the same is memorialized in an agreement and annexed to this notice, is qualified in its entirety by reference to the more complete and detailed information contained in such agreements: Agreements with Nominees High River has entered into a letter agreement (the "Nominee Agreement") with each of the Nominees: Messrs. Becker, Glass, Knauss, Icahn, Waksal and Zegger. A copy of the form of the Nominee Agreement is attached hereto as Annex B, and provides, among other things, as follows: i. The Nominee acknowledges that he has agreed to become a member of the Slate to stand for election as director of the Corporation in connection with a proxy contest with management of the Corporation in respect of the election of directors of the Corporation at the Annual Meeting. ii. High River has agreed to pay the costs of the proxy contest. iii High River has agreed to indemnify each Nominee from and against any losses incurred by the Nominee arising from any action relating to such Nominee's role as a nominee on the VISX, Incorporated December 5, 2000 Page 4 Slate, absent gross negligence or willful misconduct. Barberry will promptly provide any other information reasonably requested by the Corporation pursuant to the Bylaw Requirements. Please be advised, however, that, notwithstanding the compliance by Barberry with the Bylaw Requirements, neither the delivery of this notice in accordance with the terms of the Bylaws Requirements nor the delivery of any additional information, if any, provided by Barberry or any of its affiliates to the Corporation from and after the date hereof shall be deemed to constitute an admission by Barberry or any of its affiliates of the legality or enforceability of the Bylaw Requirements or a waiver by any such person or entity of its right to, in any way, contest or challenge the enforceability thereof. As stated above, Barberry reserves the right to nominate additional Nominees, in the event the Corporation, by the appropriate corporate action, increased or increases the number of directors of its Board of Directors to be greater than six (6). Very truly yours, Edward E. Mattner Authorized Signatory [signature page to VISX stockholder proposal notice] ANNEX A High River is the direct beneficial owner of 3,245,505 shares of the Corporation's common stock ("Shares"). Barberry is the direct beneficial owner of 2,774,500 shares of the Corporation's common stock and, in addition, as the sole general partner of High River, Barberry may be deemed to be the indirect beneficial owner of 3,245,505 shares of the Corporation's common stock. Gail Golden, a spouse of Mr. Icahn, is the direct beneficial owner of 1,490 shares of the Corporations common stock. Barberry is wholly owned by Carl C. Icahn. As such, Mr. Icahn may be deemed to be the indirect beneficial owner of 6,020,005 shares of the Corporation's common stock. ANNEX B High River Limited Partnership December 1, 2000 Dear ________________: This will confirm our understanding as follows: 1. You have agreed to become a member of a slate of nominees (the "Slate") to stand for election as directors of VISX, Incorporated ("VISX") in connection with a proxy contest with management of VISX in respect of the election of directors of VISX at the 2001 Annual Meeting of Stockholders of VISX (the "2001 Annual Meeting"), expected to be held in May 2001, or a special meeting of stockholders of VISX called for a similar purpose (the "Proxy Contest"). 2. The undersigned agrees to pay the costs of the Proxy Contest. 3. You understand that, pursuant to the By-Laws of VISX, it may be difficult, if not impossible, to replace nominees who, such as yourself, have agreed to serve on the Slate and later change their minds and determine not to seek election. Accordingly, the Slate is relying upon your agreement to seek nomination. In that connection, you are being supplied with questionnaires in which you will provide the undersigned with information necessary for the undersigned to make appropriate disclosure both to VISX and for use in creating the proxy material to be sent to stockholders of VISX and to be filed with the Securities and Exchange Commission. You have agreed that (i) you will immediately complete and sign the questionnaire and return it to the undersigned and (ii) your responses to the questions contained therein will be true and correct in all respects. In addition, you have agreed that, concurrently with your execution of this letter, you will execute a letter or other instrument directed to VISX informing VISX that you consent to being a nominee of the undersigned for the election as a director of VISX and, if elected, consent to serving as a director of VISX. 4. The undersigned hereby agrees that, so long as you actually serve on the Slate, the undersigned will defend, indemnify and hold you harmless from and against any and all losses, claims, damages, penalties, judgments, awards, liabilities, costs, expenses and disbursements (including, without limitation, reasonable attorneys' fees, costs, expenses and disbursements) incurred by you in the event that you become a party, or are threatened to be made a party, to any civil, criminal, administrative or arbitrative action, suit or proceeding, and any appeal thereof relating solely to your role as a nominee for director of VISX on the Slate. Your right of indemnification hereunder shall continue after the election has taken place but only for events which occurred during the period from the date hereof until the date of the 2001 Annual Meeting or special meeting of stockholders regarding the election of the Slate in the event that you are a candidate for election at such special meeting. Anything to the contrary herein notwithstanding, the undersigned is not indemnifying you for any action taken by you or on your behalf which occurs prior to the date hereof or subsequent to the 2001 Annual Meeting or such earlier time as you are no longer a nominee of the Slate for election to VISX's Board of Directors or for any actions taken by you as a director of VISX, if you are elected. Nothing herein shall be construed to provide you an indemnity: (i) in the event you are found to have engaged in a violation of any provision of state or federal law in connection with the Proxy Contest unless you demonstrate that your action was taken in good faith and in a manner you reasonably believed to be in or not opposed to the best interests of electing the Slate; or (ii) if you acted in a manner which constitutes gross negligence or willful misconduct. In the event that you shall make any claim for indemnification hereunder, you shall promptly notify the undersigned in the event of any third-party claims actually made against you or known by you to be threatened. In addition, with respect to any such claim, the undersigned shall be entitled to control your defense with counsel chosen by the undersigned. The undersigned shall not be responsible for any settlement of any claim against you covered by this indemnity without its prior written consent. However, the undersigned may not enter into any settlement of any such claim without your consent unless such settlement includes a release of you from any and all liability in respect of such claim. 5. Each of us recognizes that should you be elected to the Board of Directors of VISX all of your activities and decisions as a director will be governed by applicable law and subject to your fiduciary duty to the stockholders of VISX and, as a result, that there is, and can be, no agreement between you and the undersigned which governs the decisions which you will make as a director of VISX, including, without limitation, the matters described in paragraph 3 above. Should the foregoing agree with your understanding, please so indicate in the space provided below, whereupon this letter will become a binding agreement between us. Very truly yours, High River Limited Partnership By: Barberry Corp., General Partner By: _______________________________ Name: Edward E. Mattner Its: Authorized Signatory Agreed to and Accepted as of the date first above written: ________________________ Name:___________________ ANNEX C JEROME M. BECKER Name: Jerome M. Becker (the "Nominee") Age: 65 Business 641 Lexington Avenue Address: New York, NY 10022 Residence 1675 York Avenue Address: New York, NY 10128 Set forth below is a brief description of the Nominee's business experience during the past five years, including the Nominee's principal occupations and employment during the past five years; the name and principal business of any corporation or other organization in which such occupations and employment were carried on and the Nominee's current principal occupation or employment. Also, please refer to the statement attached to this Annex for further information about the Nominee's professional experience. New York State Housing Finance Agency 641 Lexington Avenue New York, NY 10022 1996 - present Chairman Jerome M. Becker, Esq. 605 Third Avenue New York, NY 10158 1995 - 1999 Sole Practitioner The entities listed above are not a parent, subsidiary or other affiliate of VISX, Incorporated ("VISX"). The Nominee does not hold any positions or offices with VISX. The Nominee currently is a director of the following companies that have a class of securities registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended, (the "Exchange Act") or that are subject to the requirements of Section 15(d) of the Exchange Act or that are registered as an investment company under the Investment Company Act of 1940: Stratosphere Corporation Attachment to Annex C JUDGE JEROME M. BECKER serves as Chairman of the New York State Housing Finance Agency, the New York State Affordable Housing Corporation, the New York State Project Finance Agency and the New York State Municipal Bond Bank. Judge Becker also serves as Vice- Chairman of the State of New York Mortgage Agency. Judge Becker is a Director of the New York State Mortgage Loan Enforcement and Administration Corporation, Director of the New York State Housing Trust Fund Corporation and Member of the Homeless Housing Assistance Corporation. He is also a Brigadier General in the New York Guard. Judge Becker has formerly served as a Family Court Judge of the State of New York and as an Acting Criminal Court Judge of the New York City Criminal Court. He also served as Special District Attorney of Kings County (Brooklyn), Chairman of the New York City Conditional Release Commission (Parole), Chairman of the New York City Youth Board, Commissioner of the New York City Human Rights Commission and Member of the New York City Board of Correction. Judge Becker is a member of the New York State Bar having been admitted in 1962 and since has become a member of the Washington DC, Colorado and Pennsylvania Bars. He is also admitted to various federal courts including the United States Supreme Court. Judge Becker has also practiced law privately having represented domestic and international real estate interests. ANNEX D RUSSELL D. GLASS Name: Russell D. Glass (the "Nominee") Age: 38 Business 767 Fifth Avenue Address: New York, NY 10153 Residence 110 East 57th Street Address: New York, NY 10022 Set forth below is a brief description of the Nominee's business experience during the past five years, including the Nominee's principal occupations and employment during the past five years; the name and principal business of any corporation or other organization in which such occupations and employment were carried on and the Nominee's current principal occupation or employment. Also, please refer to the statement attached to this Annex for further information about the Nominee's professional experience. Icahn Associates Corp. 767 Fifth Avenue New York, NY 10153 1998 - Present President Lowestfare.com, LLC 767 Fifth Avenue New York, NY 10153 1998 - Present Vice Chairman Cadus Pharmaceutical Corporation 767 Fifth Avenue New York, NY 10153 2000 - Present Chief Executive Officer Relational Investors LLC 4330 La Jolla Village Drive San Diego, CA 1996 - 1998 Partner Premier Partners Inc. 274 North Undermountain Road Sheffield, MA 01257 1988 - 1996 Partner The entities listed above are not a parent, subsidiary or other affiliate of VISX, Incorporated ("VISX"). The Nominee does not hold any positions or offices with VISX. The Nominee currently is a director of the following companies that have a class of securities registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended, (the "Exchange Act") or that are subject to the requirements of Section 15(d) of the Exchange Act or that are registered as an investment company under the Investment Company Act of 1940: Cadus Pharmaceutical Corporation Next Generation Technology Holdings, Inc. (formerly Delicious Brands Inc.) National Energy Group, Inc.1 The employment arrangement of Mr. Glass may entitle him to receive compensation based upon certain investments made by Mr. Icahn and his affiliates. [FN] - -------- 1 Held directorship when an Order for Relief Under Chapter 11 of the Bankruptcy Code was entered against National Energy in February 1999. Attachment to Annex D RUSSELL D. GLASS Since April 1998 Mr. Glass has been President and Chief Investment Officer of Icahn Associates Corp., a diversified investment firm. Since August 1998 he has also served as Vice-Chairman of Lowestfare.com, LLC, an internet travel reservations company. Since April 2000 Mr. Glass has also served as the Chief Executive Officer of Cadus Pharmaceutical Corporation, a firm which holds various biotechnology patents. Previously, Mr. Glass had been a partner in Relational Investors LLC, from 1996 to 1998, and in Premier Partners Inc., from 1988 to 1996, firms engaged in investment research and management. From 1984 to 1986 he served as an investment banker with Kidder, Peabody & Co. Mr. Glass served as a Director of Automated Travel Systems, Inc., a software development firm. He currently serves as a Director of Axiom Biotechnologies, Inc., a pharmacology profiling company; Cadus Pharmaceutical Corporation; Lowestfare.com, Inc.; National Energy Group, Inc., an oil & gas exploration and production company; Next Generation Technology Holdings, Inc.; and the A.G. Spanos Corporation, a national real estate developer and owner of the NFL San Diego Chargers Football Club. Mr. Glass earned a B.A. in economics from Princeton University and an M.B.A. from the Stanford University Graduate School of Business. ANNEX E PAUL J. ZEGGER Name: Paul J. Zegger (the "Nominee") Age: 41 Business 1667 K Street, N.W. Address: Washington DC 20006 Residence 3133 Connecticut Ave. Address: Washington DC 20008 Set forth below is a brief description of the Nominee's business experience during the past five years, including the Nominee's principal occupations and employment during the past five years; the name and principal business of any corporation or other organization in which such occupations and employment were carried on and the Nominee's current principal occupation or employment. Also, please refer to the statement attached to this Annex for further information about the Nominee's professional experience. Pennie & Edmonds LLP 1667 K Street, N.W. Washington DC 20006 1996 - Present Member Pennie & Edmonds LLP 1667 K Street, N.W. Washington DC 20006 1987 - 1996 Associate The entity listed above is not a parent, subsidiary or other affiliate of VISX, Incorporated ("VISX"). The Nominee does not hold any positions or offices with VISX. The Nominee currently is a director of the following companies that have a class of securities registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended, (the "Exchange Act") or that are subject to the requirements of Section 15(d) of the Exchange Act or that are registered as an investment company under the Investment Company Act of 1940: None Attachment to Annex E PAUL J. ZEGGER is a partner of Pennie & Edmonds LLP, a law firm specializing in intellectual property and technology law. Mr. Zegger joined the New York office of Pennie & Edmonds LLP in 1987. He has worked in all phases of patent law including litigation, prosecution, licensing, validity and infringement study and counseling. His primary area of technical expertise is in chemical engineering, chemistry, pharmaceuticals, and biotechnology. Mr. Zegger has extensively litigated intellectual property matters before the Federal district courts and Court of Appeals for the Federal Circuit. Mr. Zegger received a B.S. in Chemical Engineering in 1982 from the University of Massachusetts and J.D. in 1987 from Albany Law School of Union University. He is member of the bars of the states of New York, Connecticut and the District of Columbia and is admitted to practice before numerous Federal district courts, the Court of Appeals for the Federal Circuit and the United States Supreme Court. He is also registered to practice before the United States Patent and Trademark Office. Mr. Zegger is also a member of the American Intellectual Property Law Association and the New York Intellectual Property law Association. He has been a speaker on various issues pertaining to patent law. ANNEX F CARL C. ICAHN Name: Carl C. Icahn (the "Nominee") Age: 64 Business 767 Fifth Avenue Address: New York, NY 10153 Residence 15 West 53rd Street Address: New York, NY 10019 Set forth below is a brief description of the Nominee's business experience during the past five years, including the Nominee's principal occupations and employment during the past five years; the name and principal business of any corporation or other organization in which such occupations and employment were carried on and the Nominee's current principal occupation or employment. Also, please refer to the statement attached to this Annex for further information about the Nominee's professional experience. Starfire Holding Corporation (formerly Icahn Holding Corporation) 100 South Bedford Road Mt. Kisco, NY 10549 1984 - Present Chairman of the Board and Chief Executive Officer ACF Industries, Incorporated 620 North Second Street St. Charles, MO 63301 1984 - Present Chairman of the Board and Chief Executive Officer ACF Industries Holdings Corp. 620 North Second Street St. Charles, MO 63301 1993 - Present Chairman of the Board and Chief Executive Officer Icahn & Co., Inc. One Wall Street Court New York, NY 10005 1968 - Present Chairman of the Board, President and Chief Executive Officer American Property Investors, Inc. 100 South Bedford Road Mt. Kisco, NY 10549 1990 - Present Chairman of the Board and Chief Executive Officer Stratosphere Corporation 2000 Las Vegas Boulevard South Las Vegas, Nevada 89104 October 1998 - Present Chairman of the Board Lowestfare.com, LLC 767 Fifth Avenue New York, NY 10153 1998 - Present Chairman of the Board Cadus Pharmaceutical Corporation 767 Fifth Avenue New York, NY 10153 1995 - 1996 Co-Chairman of the Board The entities listed above are not a parent, subsidiary or other affiliate of VISX, Incorporated ("VISX"). The Nominee does not hold any positions or offices with VISX. The Nominee currently is a director of the following companies that have a class of securities registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended, (the "Exchange Act") or that are subject to the requirements of Section 15(d) of the Exchange Act or that are registered as an investment company under the Investment Company Act of 1940: Cadus Pharmaceutical Corporation American Property Investors, Inc., the general partner of American Real Estate Partners, L.P. Stratosphere Corporation GB Property Funding Corp. The Nominee beneficially owns, indirectly, with shared voting and investment power, 6,020,005 shares of common stock, par value $0.01 per share, of VISX, which constitutes approximately 9.95% of such class of securities. Attachment to Annex F CARL C. ICAHN has served as Chairman of the Board and a Director of Starfire Holding Corporation (formerly Icahn Holding Corporation), a privately-held holding company, and Chairman of the Board and a Director of various Starfire's subsidiaries, including ACF Industries, Incorporated, a privately-held railcar leasing and manufacturing company, since 1982 and ACF Industries Holdings Corp., a privately-held holding company for ACF, since August 1993. He has also been Chairman of the Board and President of Icahn & Co., Inc., a registered broker-dealer and a member of the National Association of Securities Dealers, since 1968. Since November 1990, Mr. Icahn has been Chairman of the Board of American Property Investors, Inc., the general partner of American Real Estate Partners, L.P., a public limited partnership that invests in real estate. Mr. Icahn has been a Director of Cadus Pharmaceutical Corporation, a firm which holds various biotechnology patents, since 1993. Since August 1998 he has also served as Chairman of the Board of Lowestfare.com, LLC, an internet travel reservations company. From October 1998, Mr. Icahn has been the Chairman and Chief Executive Officer of Stratosphere Corporation which operates a hotel and casino. Mr. Icahn received his B.A. from Princeton University. ANNEX G SAMUEL D. WAKSAL Name: Samuel D. Waksal (the "Nominee") Age: 51 Business 180 Varick Street, 6th Floor Address: New York, NY 10014 Residence 150 Thompson Street Address: New York, NY 10012 Set forth below is a brief description of the Nominee's business experience during the past five years, including the Nominee's principal occupations and employment during the past five years; the name and principal business of any corporation or other organization in which such occupations and employment were carried on and the Nominee's current principal occupation or employment. Also, please refer to the statement attached to this Annex for further information about the Nominee's professional experience. Imclone Systems, Inc. 180 Varick Street, 6th Floor New York, NY 10014 1985 - Present Chief Executive Officer (President from March 1987 to Present) The entity listed above is not a parent, subsidiary or other affiliate of VISX, Incorporated ("VISX"). The Nominee does not hold any positions or offices with VISX. The Nominee currently is a director of the following companies that have a class of securities registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended, (the "Exchange Act") or that are subject to the requirements of Section 15(d) of the Exchange Act or that are registered as an investment company under the Investment Company Act of 1940: Imclone Systems, Inc. Attachment to Annex G SAMUEL D. WAKSAL, PH.D. is a founder of Imclone Systems, Inc., a biopharmaceutical company, and has been its Chief Executive Officer and a Director since August 1985 and President since March 1987. From 1982 to 1985, Dr. Waksal was a member of the faculty of Mt. Sinai School of Medicine as Associate Professor of Pathology and Director of the Division of Immunotherapy within the Department of Pathology. He has served as visiting Investigator of the National Cancer Institute, Immunology Branch, Research Associate of the Department of Genetics, Stanford University Medical School, Assistant Professor of Pathology at Tufts University School of Medicine and Senior Scientist for the Tufts Cancer Research Center. Dr. Waksal was a scholar of the Leukemia Society of America from 1979 to 1984. Dr. Waksal currently serves on the Executive Committee of the New York Biotechnology Association and is Chairman of the New York Council for the Humanities. ANNEX H ROBERT L. KNAUSS Name: Robert L. Knauss (the "Nominee") Age: 69 Business 5151 San Felipe Street, Suite 1616 Address: Houston, TX 77056 Residence P.O. Box 40 Address: Burton, TX 77835 Set forth below is a brief description of the Nominee's business experience during the past five years, including the Nominee's principal occupations and employment during the past five years; the name and principal business of any corporation or other organization in which such occupations and employment were carried on and the Nominee's current principal occupation or employment. Also, please refer to the statement attached to this Annex for further information about the Nominee's professional experience. Baltic International USA Inc. 5151 San Felipe Street, Suite 1616 Houston, TX 77056 1991 - Present Chairman of the Board and Chief Executive Officer (since 1994) Philip Services Corp. 970 Higgins Road, Suite 750 Rosemont, IL 60018 1998 - Present Chairman of the Board The entities listed above are not a parent, subsidiary or other affiliate of VISX, Incorporated ("VISX"). The Nominee does not hold any positions or offices with VISX. The Nominee currently is a director of the following companies that have a class of securities registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended, (the "Exchange Act") or that are subject to the requirements of Section 15(d) of the Exchange Act or that are registered as an investment company under the Investment Company Act of 1940: Baltic International USA Inc. Philip Services Corp.1 Equus Investments, Inc. Mexico Fund [FN] - -------- 1 Held directorship when an Order for Relief Under Chapter 11 of the Bankruptcy Code was entered against Philip Services Corp. Attachment to Annex H ROBERT L. KNAUSS Since 1994 Mr. Knauss has served as the Chief Executive Officer of Baltic International USA Inc., a company that provides capital, management, and technical services to start- up and established private companies. Mr. Knauss served as Dean of the University of Houston Law Center from 1981 through December 1993. Mr. Knauss was involved in establishing the relationship between the University of Houston Law Foundation and the former Soviet Union in 1991 whereby the University of Houston Law Foundation assisted the former Soviet Union in creating the Petroleum Legislation Project, and was involved with the government of Russia in the development of privatization legislation. Mr. Knauss has served as a director of Equus Investments, Inc. since 1984 and as one of the two United States directors for the Mexico Fund since 1985. He was elected as a director of Philip Services Corp. in 1997 following the merger of Allwaste, Inc. and Philip Services Corp., a metals recovery and industrial services company, and was elected Chairman of the Board of Philip Services Corp. in May 1998. Securities of the Mexico Fund, Philip Services Corp. and Equus Investments, Inc. are registered under the Securities Exchange Act of 1934. Mr. Knauss is a graduate of Harvard University and the University of Michigan Law School. Mr. Knauss is a former member of the faculty of the University of Michigan Law School, and served as Dean of Vanderbilt Law School from 1972 to 1979. ANNEX I CONSENT OF NOMINEE The undersigned hereby consents to being named as a nominee for election as a director of VISX, Incorporated (the "Company"), in the proxy statement and other materials concerning the undersigned's nomination in connection with the solicitation of proxies from stockholders of the Company to be voted at the 2001 annual meeting of stockholders of the Company and any adjournment thereof, and further consents to serve as a director of the Company, if elected. /s/ Jerome Becker Jerome Becker ANNEX I CONSENT OF NOMINEE The undersigned hereby consents to being named as a nominee for election as a director of VISX, Incorporated (the "Company"), in the proxy statement and other materials concerning the undersigned's nomination in connection with the solicitation of proxies from stockholders of the Company to be voted at the 2001 annual meeting of stockholders of the Company and any adjournment thereof, and further consents to serve as a director of the Company, if elected. /s/ Russell Glass Russell Glass ANNEX I CONSENT OF NOMINEE The undersigned hereby consents to being named as a nominee for election as a director of VISX, Incorporated (the "Company"), in the proxy statement and other materials concerning the undersigned's nomination in connection with the solicitation of proxies from stockholders of the Company to be voted at the 2001 annual meeting of stockholders of the Company and any adjournment thereof, and further consents to serve as a director of the Company, if elected. /s/ Paul J. Zegger Paul J. Zegger ANNEX I CONSENT OF NOMINEE The undersigned hereby consents to being named as a nominee for election as a director of VISX, Incorporated (the "Company"), in the proxy statement and other materials concerning the undersigned's nomination in connection with the solicitation of proxies from stockholders of the Company to be voted at the 2001 annual meeting of stockholders of the Company and any adjournment thereof, and further consents to serve as a director of the Company, if elected. /s/ Carl C. Icahn Carl C. Icahn ANNEX I CONSENT OF NOMINEE The undersigned hereby consents to being named as a nominee for election as a director of VISX, Incorporated (the "Company"), in the proxy statement and other materials concerning the undersigned's nomination in connection with the solicitation of proxies from stockholders of the Company to be voted at the 2001 annual meeting of stockholders of the Company and any adjournment thereof, and further consents to serve as a director of the Company, if elected. /s/ Samuel D. Waksal Samuel D. Waksal ANNEX I CONSENT OF NOMINEE The undersigned hereby consents to being named as a nominee for election as a director of VISX, Incorporated (the "Company"), in the proxy statement and other materials concerning the undersigned's nomination in connection with the solicitation of proxies from stockholders of the Company to be voted at the 2001 annual meeting of stockholders of the Company and any adjournment thereof, and further consents to serve as a director of the Company, if elected. /s/ Robert L. Knauss Robert L. Knauss Exhibit 2 High River Limited Partnership December 1, 2000 Dear ________________: This will confirm our understanding as follows: 1. You have agreed to become a member of a slate of nominees (the "Slate") to stand for election as directors of VISX, Incorporated ("VISX") in connection with a proxy contest with management of VISX in respect of the election of directors of VISX at the 2001 Annual Meeting of Stockholders of VISX (the "2001 Annual Meeting"), expected to be held in May 2001, or a special meeting of stockholders of VISX called for a similar purpose (the "Proxy Contest"). 2. The undersigned agrees to pay the costs of the Proxy Contest. 3. You understand that, pursuant to the By-Laws of VISX, it may be difficult, if not impossible, to replace nominees who, such as yourself, have agreed to serve on the Slate and later change their minds and determine not to seek election. Accordingly, the Slate is relying upon your agreement to seek nomination. In that connection, you are being supplied with questionnaires in which you will provide the undersigned with information necessary for the undersigned to make appropriate disclosure both to VISX and for use in creating the proxy material to be sent to stockholders of VISX and to be filed with the Securities and Exchange Commission. You have agreed that (i) you will immediately complete and sign the questionnaire and return it to the undersigned and (ii) your responses to the questions contained therein will be true and correct in all respects. In addition, you have agreed that, concurrently with your execution of this letter, you will execute a letter or other instrument directed to VISX informing VISX that you consent to being a nominee of the undersigned for the election as a director of VISX and, if elected, consent to serving as a director of VISX. 4. The undersigned hereby agrees that, so long as you actually serve on the Slate, the undersigned will defend, indemnify and hold you harmless from and against any and all losses, claims, damages, penalties, judgments, awards, liabilities, costs, expenses and disbursements (including, without limitation, reasonable attorneys' fees, costs, expenses and disbursements) incurred by you in the event that you become a party, or are threatened to be made a party, to any civil, criminal, administrative or arbitrative action, suit or proceeding, and any appeal thereof relating solely to your role as a nominee for director of VISX on the Slate. Your right of indemnification hereunder shall continue after the election has taken place but only for events which occurred during the period from the date hereof until the date of the 2001 Annual Meeting or special meeting of stockholders regarding the election of the Slate in the event that you are a candidate for election at such special meeting. Anything to the contrary herein notwithstanding, the undersigned is not indemnifying you for any action taken by you or on your behalf which occurs prior to the date hereof or subsequent to the 2001 Annual Meeting or such earlier time as you are no longer a nominee of the Slate for election to VISX's Board of Directors or for any actions taken by you as a director of VISX, if you are elected. Nothing herein shall be construed to provide you an indemnity: (i) in the event you are found to have engaged in a violation of any provision of state or federal law in connection with the Proxy Contest unless you demonstrate that your action was taken in good faith and in a manner you reasonably believed to be in or not opposed to the best interests of electing the Slate; or (ii) if you acted in a manner which constitutes gross negligence or willful misconduct. In the event that you shall make any claim for indemnification hereunder, you shall promptly notify the undersigned in the event of any third-party claims actually made against you or known by you to be threatened. In addition, with respect to any such claim, the undersigned shall be entitled to control your defense with counsel chosen by the undersigned. The undersigned shall not be responsible for any settlement of any claim against you covered by this indemnity without its prior written consent. However, the undersigned may not enter into any settlement of any such claim without your consent unless such settlement includes a release of you from any and all liability in respect of such claim. 5. Each of us recognizes that should you be elected to the Board of Directors of VISX all of your activities and decisions as a director will be governed by applicable law and subject to your fiduciary duty to the stockholders of VISX and, as a result, that there is, and can be, no agreement between you and the undersigned which governs the decisions which you will make as a director of VISX, including, without limitation, the matters described in paragraph 3 above. Should the foregoing agree with your understanding, please so indicate in the space provided below, whereupon this letter will become a binding agreement between us. Very truly yours, High River Limited Partnership By: Barberry Corp., General Partner By: _______________________________ Name: Edward E. Mattner Its: Authorized Signatory Agreed to and Accepted as of the date first above written: Name:___________________ -----END PRIVACY-ENHANCED MESSAGE-----