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
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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
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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
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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]
<PAGE>
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.
<PAGE>
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
<PAGE>
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:___________________
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
</FN>
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
</FN>
<PAGE>
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.
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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
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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
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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
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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
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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
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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
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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
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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:___________________
