SC 13D/A 1 0001.txt AMENDMENT NO. 2 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No.2)* VISX, Incorporated (Name of Issuer) Common Shares (Title of Class of Securities) 92844S105 (CUSIP Number) Marc Weitzen, Esq. General Counsel, Icahn Associates Corp. & affiliated companies 767 Fifth Avenue, 47th Floor New York, New York 10153 (212) 702-4388 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 5, 2000 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Section 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box / /. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). -1- SCHEDULE 13D CUSIP No. 92844S105 1 NAME OF REPORTING PERSON High River Limited Partnership S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) // 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 3,245,505 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 3,245,505 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,245,505 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* // 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.36226% 14 TYPE OF REPORTING PERSON* PN -2- SCHEDULE 13D CUSIP No. 92844S105 1 NAME OF REPORTING PERSON Barberry Corp. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) // 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 2,774,500 8 SHARED VOTING POWER 3,245,505 9 SOLE DISPOSITIVE POWER 2,774,500 10 SHARED DISPOSITIVE POWER 3,245,505 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,020,005 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* // 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.94633% 14 TYPE OF REPORTING PERSON* CO -3- SCHEDULE 13D CUSIP No. 92844S105 1 NAME OF REPORTING PERSON Carl C. Icahn S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) // 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 6,020,005 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 6,020,005 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,020,005 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* // 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.94633% 14 TYPE OF REPORTING PERSON* IN -4- SCHEDULE 13D CUSIP No. 92844S105 1 NAME OF REPORTING PERSON Gail Golden S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* PF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) // 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 1,490 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 1,490 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,490 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* // 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.0000246% 14 TYPE OF REPORTING PERSON* IN -5- SCHEDULE 13D Item 1. Security and Issuer The Schedule 13D filed with the U.S. Securities and Exchange Commission on October 20, 2000, relating to the common shares, $.01 par value (the "Shares"), of VISX, Incorporated, a Delaware corporation (the "Issuer") and amended on November 6, 2000, by the Registrants, is amended to furnish additional information set forth herein. All capitalized terms not otherwise defined shall have the meaning ascribed to such terms in the previously filed statement on Schedule 13D. Item 4. Purpose of Transaction Item 4 is hereby amended to add the following: Registrants believe that Issuer and its stockholders would benefit from a consolidation of Issuer with a larger pharmaceutical or medical device company which would allow the Issuer's products and services to be bundled with other ophthalmic products and services, achieving better operating leverage through the consolidated entity's extensive field service capabilities. Registrants have attempted, without success, to contact Issuer's Chief Executive Officer to discuss this matter. Registrants have determined to conduct a proxy contest to elect directors to Issuer's Board of Directors who would favorably consider implementing Registrant's views that such a consolidation would be beneficial to Issuer and its stockholders. In furtherance thereof, Barberry notified Issuer on December 5, 2000, in accordance with Issuer's By-laws, of its intention to propose the nomination of persons for election as directors at the forthcoming annual meeting of Issuer's stockholders. A copy of the notification letter ("the Notification Letter") is attached hereto as Exhibit 1 and incorporated in its entirety herein by reference. The Notification Letter provides Issuer with certain information required by Issuer's by-laws concerning Barberry and certain of its affiliates and concerning the nominees. In furtherance of the possible proxy contest, High River has entered into agreements with the intended nominees (each a "Nominee Agreement") named in the Notification Letter. The form of the Nominee Agreement is attached hereto as Exhibit 2 and incorporated in its entirety by reference. Registrants will continue to seek to discuss with Issuer means of enhancing stockholder value. If and when Registrants determine not to proceed with the proxy contest, they will so notify Issuer. -6- Item 6. Contracts, Arrangements, Understandings or Relationship with Respect to Securities of the Issuer Except as described herein, none of the Registrants has any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any securities of the Issuer, including but not limited to the transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or losses, or the giving or withholding of proxies. Item 7. Material to be Filed as Exhibits 1. Notification Letter from Barberry Corp. to Issuer dated December 5, 2000 2. Form of Nominee agreement -7- SIGNATURE After reasonable inquiry and to the best of the undersigned knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: December 1, 2000 BARBERRY CORP. By: /s/ Carl C. Icahn Name: Carl C. Icahn Title: President HIGH RIVER LIMITED PARTNERSHIP By: BARBERRY CORP., General Partner By: /s/ Carl C. Icahn Name: Carl C. Icahn Title: President /s/ Gail Golden GAIL GOLDEN /s/ Carl C. Icahn CARL C. ICAHN [Signature Page of Amendment No. 2 of Schedule 13D with respect to VISX, Incorporated] -8-