UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.__)*
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)
October 10,2000
(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).
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<PAGE>
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
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<PAGE>
SCHEDULE 13D
CUSIP No. 92844S105
1 NAME OF REPORTING PERSON
Riverdale LLC
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
New York
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
3,245,505
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
3,245,505
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*
OO
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<PAGE>
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
0
9 SOLE DISPOSITIVE POWER
2,774,500
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,774,500
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.58406%
14 TYPE OF REPORTING PERSON*
CO
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<PAGE>
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
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<PAGE>
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
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<PAGE>
SCHEDULE 13D
Item 1. Security and Issuer
This Schedule 13D relates to the common shares, $.01 par value (the
"Shares"), of VISX, Incorporated, a Delaware corporation (the "Issuer"). The
address of the principal executive offices of the Issuer is 3400 Central
Expressway, Santa Clara, California 95051- 0703."
Item 2. Identity and Background
The persons filing this statement are Barberry Corp., a Delaware
corporation ("Barberry"), High River Limited Partnership, a Delaware limited
partnership ("High River"), Riverdale LLC, a New York limited liability company
("Riverdale")(Barberry, High River and Riverdale are collectively, the "Icahn
Group"), Carl C. Icahn, a citizen of the United States of America and Gail
Golden, a citizen of the United States of America and Mr. Icahn's spouse,
(collectively, the "Registrants"). The principal business address and the
address of the principal office of (i) Barberry, High River and Riverdale is 100
South Bedford Road, Mount Kisco, New York 10549, and (ii) Carl C. Icahn and Gail
Golden is c/o Icahn Associates Corp., 767 Fifth Avenue, 47th Floor, New York,
New York 10153.
Riverdale is the general partner of High River. Each of Riversale and
Barberry is 100 percent owned by Carl C. Icahn.
Each of Barberry and High River is primarily engaged in the business of
investing in securities. Riverdale is primarily engaged in the business of
owning real estate and acting as general partner of High River. Carl C. Icahn's
present principal occupation or employment is acting as President and a Director
of Starfire Holding Corporation, a Delaware corporation ("Starfire"), and as the
Chairman of the Board and Director of various of Starfire's subsidiaries,
including ACF Industries, Incorporated, a New Jersey corporation ("ACF").
Starfire, whose principal business address is 100 South Bedford Road, Mount
Kisco, New York 10549, is primarily engaged in the business of holding, either
directly or through its subsidiaries, a majority of the common stock of ACF. ACF
is primarily engaged in the business of leasing, selling and manufacturing
railroad freight and tank cars.
Gail Golden's present principal occupation or employment is acting as
Vice Chairman of Lowestfare.com, LLC ("Lowestfare"), an internet based travel
agency indirectly wholly-owned by Mr. Icahn. Ms. Golden also acts as an officer
of various other entities, indirectly or directly, wholly-owned by Mr. Icahn.
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Lowestfare's principal business address is at 980 Kelly Johnson Drive,
Las Vegas, Nevada 89119.
The name, citizenship, present principal occupation or employment and
business address of each member of Riverdale is set forth in this section. Each
such person is a citizen of the United States of America. To the best of
Registrants' knowledge, except as set forth in this section, none of the
managers or executive officers of the Registrants own any shares of the Issuer.
Carl C. Icahn is the sole member of Riverdale and the sole shareholder
of Barberry and owns 100% of the interests in each of the entities. As such, Mr.
Icahn is in a position directly and indirectly to determine the investment and
voting decisions made by the Icahn Group.
None of Barberry, High River, Riverdale, Carl C. Icahn, Gail Golden nor
any manager or executive officer of any of the Icahn Group, has, during the past
five years, (a) been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors), or (b) been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting, or mandating activities subject
to, Federal or State securities laws or a finding of any violation with respect
to such laws.
Item 3. Source and Amount of Funds or Other Consideration
The aggregate purchase price of the 6,020,005 Shares purchased by Icahn
Group was $141,938,259.76(including commissions). The source of funding for the
purchase of these Shares was general working capital of the Icahn Group.
The aggregate purchase price of the 1,490 Shares purchased by Gail
Golden was $34,407.52 (including commissions and transaction charges). The
source of funding for the purchase of these Shares was personal income of Gail
Golden.
Item 4. Purpose of Transaction
Registrants acquired the Shares because they believe that they are
undervalued compared to what Registrants believe is their intrinsic value.
Registrants would consider acquiring additional Shares from time to time
depending on market conditions, provided that such purchases are not prohibited
by Issuer's newly adopted poison pill.
On October 20, 2000, Mr. Icahn spoke with Elizabeth H. Davila,
Issuer's President and Chief Operating Officer. They discussed
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<PAGE>
Registrants' view that the poison pill's 10% threshold is unreasonably low and
that the poison pill should be amended to increase the threshold. They also
discussed Registrants' view that the Issuer should seek to sell itself to a
larger company with a more integrated line of products so that Issuer can more
effectively compete with the better capitalized and broader-based companies in
its field. Ms. Davila indicated that she would take Registrants' views under
advisement.
Depending upon market conditions and its views concerning the poison
pill, Registrants may determine to acquire additional Shares of Issuer at any
time and from time to time in the open market or otherwise. Depending upon
market conditions, Registrants may determine to sell Shares at any time and from
time to time in the open market or otherwise.
Item 5. Interest in Securities of the Issuer
(a) As of the close of the business day on October 20, 2000,
Registrants may be deemed to beneficially own, in the aggregate, 6,021,495
Shares, representing approximately 9.94879% of the Issuer's outstanding Shares
(based upon the 60,524,854 Shares stated to be outstanding as of July 31, 2000
by the Issuer in the Issuer's Form 10-Q filing, filed with the Securities and
Exchange Commission on August 14, 2000).
(b) Each of Barberry and High River has sole voting power and sole
dispositive power with regard to 2,774,500 and 3,245,505 Shares, respectively.
Riverdale has shared voting power and shared dispositive power with regard to
3,245,505 Shares. Carl C. Icahn has shared voting power and shared dispositive
power with regard to 6,020,005 Shares.
Riverdale and Mr. Icahn, by virtue of their relationships to High River
(as disclosed in Item 2), may be deemed to beneficially own (as that term is
defined in Rule 13d-3 under the Act) the Shares which High River directly
beneficially owns. Also, Mr. Icahn, by virtue of his relationship to Barberry
(as disclosed in item 2), may be deemed to beneficially own (as that term is
defined in Rule 13d-3 under the Act) the Shares which Barberry directly
beneficially owns. Each of Riverdale and Mr. Icahn disclaims beneficial
ownership of such Shares for all other purposes.
Gail Golden has sole voting power and sole dispositive power with
regard to 1,490 Shares.
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(c) The following table sets forth all transactions with respect to
Shares effected during the past sixty (60) days by any of the Registrants. All
such transactions were effected in the open market, the table excludes
commissions paid.
<TABLE>
<S> <C> <C> <C> <C>
No. of Shares Price
Name Date Purchased Per Share
---- ---- --------- ---------
Barberry 10/20/00 108,900 $21.0109
Barberry 10/19/00 200,000 $20.1019
Barberry 10/18/00 172,300 $19.0926
Barberry 10/13/00 1,700,000 $21.8409
Barberry 10/12/00 114,300 $21.9368
Barberry 10/10/00 240,000 $23.00
Barberry 10/10/00 239,000 $22.7186
High River 10/17/00 250,000 $19.4432
High River 10/6/00 50,000 $23.6458
High River 10/5/00 50,000 $24.980
High River 10/4/00 50,000 $25.3578
High River 10/2/00 110,000 $26.2951
High River 9/29/00 150,600 $27.0113
High River 9/28/00 65,000 $27.1907
High River 9/27/00 95,000 $26.9864
High River 9/26/00 110,000 $27.4009
High River 9/25/00 55,800 $28.0251
High River 9/22/00 95,000 $28.1223
High River 9/21/00 73,500 $28.6023
High River 9/20/00 100,000 $29.1446
High River 9/18/00 103,500 $28.8768
High River 9/15/00 39,000 $29.6585
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High River 9/14/00 48,500 $28.8847
High River 9/13/00 58,500 $28.708
High River 9/12/00 50,000 $27.4623
High River 9/11/00 88,300 $27
High River 9/11/00 100,000 $27.0611
High River 9/8/00 75,000 $26.8743
High River 9/7/00 70,000 $27.1285
High River 9/6/00 120,100 $26.693836
High River 9/5/00 39,200 $27.442291
High River 9/1/00 108,700 $27.497701
High River 8/31/00 62,200 $27.60915
High River 8/30/00 48,800 $27.253682
High River 8/29/00 43,800 $27.40964
High River 8/28/00 43,905 $27.736163
High River 8/23/00 40,400 $24.8222
High River 8/23/00 10,000 $24.687971
Gail Golden 9/26/00 100 $27.00
</TABLE>
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. Joint Filing Agreement of the Registrants
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: October 20, 2000
BARBERRY CORP.
By: /s/ Carl C. Icahn
Name: Carl C. Icahn
Title: President
HIGH RIVER LIMITED PARTNERSHIP
By: RIVERDALE LLC,
General Partner
By: /s/ Carl C. Icahn
Name: Carl C. Icahn
Title: Member
RIVERDALE LLC
By: /s/ Carl C. Icahn
Name: Carl C. Icahn
Title: Member
/s/ Gail Golden
GAIL GOLDEN
/s/ Carl C. Icahn
CARL C. ICAHN
[Signature Page of Schedule 13D with respect to VISX, Incorporated]
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JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the Securities Exchange Act of
1934, as amended, the persons named below agree to the joint filing on behalf of
each of them of a statement on Schedule 13D (including amendments thereto) with
respect to the common stock, $.01 par value, of VISX, Incorporated, and further
agree that this Joint Filing Agreement be included as an Exhibit to such joint
filings. In evidence thereof, the undersigned, being duly authorized, have
executed this Joint Filing Agreement this 20th day of October, 2000.
BARBERRY CORP.
By: /s/ Carl C. Icahn
Name: Carl C. Icahn
Title: President
HIGH RIVER LIMITED PARTNERSHIP
By: RIVERDALE LLC,
General Partner
By: /s/ Carl C. Icahn
Name: Carl C. Icahn
Title: Member
RIVERDALE LLC
By: /s/ Carl C. Icahn
Name: Carl C. Icahn
Title: Member
/s/ Gail Golden
GAIL GOLDEN
/s/ Carl C. Icahn
-----------------
CARL C. ICAHN
[Joint Filing Agreement for Schedule 13D with respect to
VISX, Incorporation]
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