UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.10)*
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 2, 2002
(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).
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)
6.29%
14 TYPE OF REPORTING PERSON*
PN
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)
11.67%
14 TYPE OF REPORTING PERSON*
CO
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)
11.67%
14 TYPE OF REPORTING PERSON*
IN
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
1,800
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
1,800
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,800
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.00349%
14 TYPE OF REPORTING PERSON*
IN
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" or "VISX") and
amended on November 6, 2000, December 5, 2000, December 15, 2000, April 18,
2001, April 20, 2001, April 23, 2001, May 1, 2001, November 20, 2001 and March
13, 2002 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:
On December 2, 2002, Barberry Corp. notified Issuer, in accordance with
Issuer's By-laws, of its intention to propose the nomination of a person for
election as a director at the forthcoming 2003 annual meeting of Issuer's
stockholders. A copy of the notification letter ("the Notification Letter") is
attached hereto as Exhibit 1. The Notification Letter provides Issuer with
certain information required by Issuer's By-laws concerning Barberry and certain
of its affiliates and concerning the nominee.
In furtherance thereof, High River has entered into an agreement with the
intended nominee (the "Nominee Agreement") named in the Notification Letter. The
form of the Nominee Agreement is attached hereto as Exhibit 2.
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 November 27, 2002.
2. Form of Nominee Agreement.
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 2, 2002
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. 10 of Schedule 13D with respect to VISX,
Incorporated]
EXHIBIT 1
Barberry Corp.
1 Wall Street Court
New York, NY 10005
November 27, 2002
Via Federal Express
VISX, Incorporated
3400 Central Expressway
Santa Clara, CA 95051-0703
Attention: Office of the 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 II, 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 11.67% 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 2003 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 Mr. Keith Meister as a
member of the Board of Directors of the Corporation and, in that regard,
proposes to nominate Mr. Meister as its nominee (the "Nominee" or the "Slate")
for election as a director of the Corporation at the Annual Meeting. In that
regard, Barberry intends to propose the following resolution at the Annual
Meeting (and/or any other form of resolution required by the Corporation to
nominate these Nominees):
"It is hereby being resolved, that Mr. Keith Meister is nominated
to be elected as a member of the Board of Directors of the
Corporation."
As required by the Bylaw Requirements, Barberry hereby advises you that
certain information relating to the Nominee is set forth in Annex C of this
notice. Except as set forth herein or in any of the Annexes (or any attachments
thereto), to the best knowledge of Barberry (i) the Nominee does not own 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 his
associates beneficially owns, directly or indirectly, any securities of the
Corporation, (ii) neither the Nominee, his associates or any member of his
immediate family, nor Barberry or its associates has any arrangement or
understanding with any 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, 2001 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) except for the nominee agreement, dated November 25, 2002
in the form substantially similar to the Nominee Agreement (as defined below),
the Nominee is not, or was not 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)
except for the nominee agreement, dated November 25, 2002 in the form
substantially similar to the Nominee Agreement (as defined below), the 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 SEC 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 the Nominees as required by the Bylaw Requirements is
attached as Annex D.
The following is a general description of all arrangements or
understandings between certain affiliates of Barberry, including, without
limitation, High River and the 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:
Agreement with Nominee
High River has entered into a letter agreement (the "Nominee Agreement")
with the Nominee. A copy of the form of the Nominee Agreement is attached hereto
as Annex B, and provides, among other things, as follows:
* 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.
* High River has agreed to pay the costs of the proxy contest.
* High River has agreed to indemnify the Nominee from and against any
losses incurred by the Nominee arising from any action relating to the
Nominee's role as the nominee on the 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. 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 seven (7).
Very truly yours,
/s/ Edward E. Mattner
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 1,800 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.
Mr. Icahn and several of his affiliates have entered into a confidentiality
agreement dated July 17, 2001 with VISX.
ANNEX B
High River Limited Partnership
November 25, 2002
Dear Mr. Meister:
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 2003 Annual Meeting of Stockholders of VISX (the "2003
Annual Meeting"), expected to be held in May 2003, 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 2003 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 2003 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: Keith Meister
ANNEX C
KEITH MEISTER
Name: Keith Meister (the "Nominee")
Age: 29
Business Address: 767 Fifth Avenue
New York, NY 10153
285 Lafayette Street
Residence Address: New York, NY 10003
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:
Keith Meister, 29, has served as senior investment analyst of High River
Limited Partnership, a company affiliated with Carl C. Icahn, since June, 2002.
From March 2000 through 2001, Mr. Meister co-founded and served as co-president
of J Net Ventures, a $100 million venture capital fund focused on investments in
information technology and enterprise software businesses. From 1997 through
1999, Mr. Meister served as an investment professional at Northstar Capital
Partners, an opportunistic investment partnership with assets in excess of $2
billion. Prior to Northstar, Mr. Meister served as an investment analyst in the
investment banking group at Lazard Freres. Mr. Meister received his A.B. in
Government (cum laude) from Harvard College in 1995.
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 is not currently is a director of any company that has a class
of securities registered pursuant to Section 12 of the Securities Exchange Act
of 1934, as amended, (the "Exchange Act") or that is subject to the requirements
of Section 15(d) of the Exchange Act or that is registered as an investment
company under the Investment Company Act of 1940. However, Mr. Meister's
nomination for the board of directors of XO Communications, Inc. is pending; it
is anticipated that Mr. Meister will become a director of the company upon the
emergence of the company from its bankruptcy reorganization
ANNEX D
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 2003
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/ Keith Meister
Keith Meister
EXHIBIT 2
High River Limited Partnership
November 25, 2002
Dear Mr. Meister:
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 2003 Annual Meeting of Stockholders of VISX (the "2003
Annual Meeting"), expected to be held in May 2003, 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 2003 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 2003 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.
[Signature Page Follows]
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: Keith Meister
[Signature Page to VISX Nominee Agreement]