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).
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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
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
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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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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.
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<PAGE>
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
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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]
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