-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GJENcPZDOIZSEGcXL0yt07l2qoqFVuDe+oaLhFye73t2lySUIpJft6Zjoakwvl5K zac0tkkphcUQQ3db2EyFug== 0001121652-01-500011.txt : 20010420 0001121652-01-500011.hdr.sgml : 20010420 ACCESSION NUMBER: 0001121652-01-500011 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20010418 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: VISX INC CENTRAL INDEX KEY: 0000837991 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 061161793 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-40100 FILM NUMBER: 1605236 BUSINESS ADDRESS: STREET 1: 3400 CENTRAL EXPRESSWAY CITY: SANTA CLARA STATE: CA ZIP: 95051 BUSINESS PHONE: 4087332020 MAIL ADDRESS: STREET 1: VISX INC STREET 2: 3400 CENTRAL EXPRESSWAY CITY: SANTA CLARA STATE: CA ZIP: 95051-0703 FORMER COMPANY: FORMER CONFORMED NAME: TAUNTON TECHNOLOGIES INC DATE OF NAME CHANGE: 19901212 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ICAHN CARL C ET AL CENTRAL INDEX KEY: 0000921669 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 100 SOUTH BEDFORD ROAD CITY: MT KISCO STATE: NY ZIP: 10549 BUSINESS PHONE: 9142427700 MAIL ADDRESS: STREET 1: 200 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10166 SC 13D/A 1 sc13a.txt VISX, INCORPORATED UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No.4)* 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) April 17, 2001 (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) 5.6% 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) 10.5% 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) 10.5% 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 1,990 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 1,990 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,990 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* // 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.0000345% 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" or "VISX") and amended on November 6, 2000, December 5, 2000 and December 15, 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 2. Identity and Background Item 2(e) is hereby amended to add the statement set forth on Exhibit 1 hereto. Item 3. Source and Amount of Funds or Other Consideration Item 3 is hereby amended to add the following: The aggregate purchase price of the 500 Shares purchased by Gail Golden, as described in Item 5(c), was $8,713.52 (including commissions and transaction charges) and the aggregate purchase price of a put on 200 Shares purchased by Gail Golden, as described in Item 6, was $278.95 (including commissions and transaction charges). The source of funding for these purchases were personal funds of Ms. Golden. Item 4. Purpose of Transaction Item 4 is hereby amended to add the following: On April 17, 2001, Mr. Icahn and his affiliates filed a definitive proxy statement with respect to the solicitation of proxies in favor of their nominees as directors of VISX. The definitive proxy statement is available at the Securities and Exchange Commission's website at http://www.sec.gov. On April 18, 2001, Mr. Icahn delivered a letter to the Issuer addressed to Ms. Davila, CEO of VISX (the "Letter") and issued a press release. A copy of each of the Letter and the press release is filed as Exhibit 2 and Exhibit 3 hereto, respectively, and is incorporated herein by reference. Item 5. Interest in Securities of the Issuer Item 5 is hereby amended to add the following: -6- (a) As of the close of the business day on April 17, 2001, Registrants may be deemed to beneficially own, in the aggregate, 6,021,495 Shares, representing approximately 10.5% of the Issuer's outstanding Shares (based upon the 57,566,531 Shares stated to be outstanding as of March 19, 2001 by the Issuer in the Issuer's Form 14A (Definitive Proxy Statement) filing, filed with the Securities and Exchange Commission on March 22, 2001). (b) Gail Golden has sole voting power and sole dispositive power with regard to 1,990 Shares. (c) In addition to the transaction described in Item 6 below, the following table sets forth all other 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. No. of Shares Price Name Date Purchased Per Share - ---- ---- --------- --------- Gail Golden 2/26/01 500 $17.07 Item 6. Contracts, Arrangements, Understandings or Relationship with Respect to Securities of the Issuer Item 6 is hereby amended to add the following: On February 22, 2001, Ms. Golden purchased a put providing her with the right to sell up to 200 Shares at a price of $15 per Share, which put expires on April 21, 2001. Item 7. Material to be Filed as Exhibits 1. Statement pursuant to Item 2(e) 2. Letter from Mr. Icahn to Ms. Davila, CEO of VISX, Incorporated dated April 18, 2001 3. Press release dated April 18, 2001 -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: April 17, 2001 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. 4 of Schedule 13D with respect to VISX, Incorporated] -8- EX-99 2 exhibits.txt EXHIBITS Exhibit 1 CARL C. ICAHN 767 Fifth Avenue - 47th Floor New York, NY 10153 April 18, 2001 BY TELECOPY AND FEDERAL EXPRESS Ms. Elizabeth Davila, Chief Executive Officer VISX Incorporated 3400 Central Expressway Santa Clara, CA 95051 Dear Ms. Davila: While I am heartened by your statement in the April 12 press release that "the VISX Board of Directors and management remain receptive to any opportunity that recognizes VISX's record of profitable performance," I, as yet, have no reason to believe that this statement is any less disingenuous than your comments about earnings performance and relationships with key customers which are discussed below. In order that shareholders can distinguish between management's giving lip service to the concept of reviewing strategic alternatives and truly attempting to maximize shareholder value, I would like to put your statement to the test. I have recently had preliminary discussions with the senior management of two companies in the ophthalmic industry regarding the potential acquisition of VISX through a merger in which VISX shareholders would receive a combination of cash and securities of approximately $32 per share. While there can be no assurance that these discussions would ultimately result in a transaction or even an offer, each of these companies indicated that they would be interested in discussing such a transaction. I have also met with representatives of the Industrial Bank of Japan, a member of the Mizuho Financial Group. They indicated that, subject to due diligence, they would be willing to consider supplying financing. There is no assurance that, if needed, any financing would be available on acceptable terms for a transaction. In addition, the Industrial Bank of Japan has informed me that they would be interested in reaching out to foreign companies to discuss their possible interest in a transaction with VISX. If my nominees are elected, I would further pursue these discussions. As you know, I am a veteran in the field of mergers and acquisitions, including my recent encounters with RJR Nabisco and Nabisco Group Holdings ("Nabisco"). In the Nabisco example in 2000, I bought shares as low as $8 per share. There was doubt that an open auction for the sale of Nabisco would be successful. I helped persuade management to sell Nabisco in an open auction and, together with all other shareholders, realized a price of $30 per share as a result of the sale. I am not saying that VISX and Nabisco are at all comparable as companies or that the results of an auction will be similar, but I am saying that I believe conducting an open auction and making all relevant information available to potential purchasers is a very effective way to attempt to sell a company. I challenge you to promise your shareholders that you will immediately conduct an open auction for VISX and submit for shareholder approval the best offer for the Company at or above $32 per share.* In my opinion, potential acquirers of VISX are currently likely to be doubtful of the sincerity of management's intentions to review "strategic alternatives" when at the same time management says, as VISX management said in a January 17, 2001 conference call that "the Company is not for sale" (although I do note as an aside that both you and Mr. Logan have already sold substantially all of your VISX holdings at very good prices). Under these circumstances, who would submit a bid for the Company for you to consider? If you agree to submit for shareholder approval the best offer for the Company that is $32 per share or better, management will remove this doubt and facilitate the auction process. In addition, I was troubled by a number of statements made by management on your quarterly earnings conference call on April 12, 2001 and your press release of the same date, which statements I consider both misleading and disingenuous. First, you stated in your press release that earnings for the first quarter of 2001 increased 62% "on a comparable basis" by assuming that procedure fees had been cut for the entire first quarter of 2000. However, the simple reality is that first quarter earnings per share declined 30% year over year, from $0.30 per share in 2000 to $0.21 per share in 2001. In addition, you acknowledged in the conference call that licensing revenue declined 32% year over year despite industry-wide growth in procedures. This decline is largely explained by management's ill-advised decision to reduce procedure fees from $250 to $100 in February of 2000. Shareholders deserve a clear, straightforward accounting of the reasons for VISX's poor performance not a confusing juxtaposition of a real earnings decline and a hypothetical earnings increase. - --------------- *As stated in my proxy material, in selecting a minimum acceptable bid of $32 per share, I do not intend to be providing a valuation of VISX. However, in selecting that minimum acceptable bid, I studied and analyzed the recent acquisition of VISX's competitor, Summit Autonomous Inc., by Alcon Holdings Inc. I also studied and analyzed the market valuation of Allergan, a company in the ophthalmic field, and considered that according to VISX's 10-K, VISX is "a worldwide leader in the development of proprietary technologies and systems for laser vision correction." However, I pointed out that Summit, Allergan and VISX have differences in revenue sources, product mix and financial resources, among others, that affect their comparability. While a vote for my nominees is not a vote to sell the Company, I will strongly urge that my nominees for the Board of Directors of VISX consider, subject to the exercise of their fiduciary duties, my recommendation to vote in favor of the sale of the Company at a minimum price of $32 per share. It is expected that stockholders will be required to affirmatively approve any sale of the Company. There can, of course, be no assurances that the auction will achieve the desired result. Secondly, you claimed on your conference call that your relationship with TLC Laser Eye Centers, VISX's second largest customer, is "very strong." In contrast to management's view however, on February 22, 2001, TLC announced that it has adopted technology provided by rival Alcon as its primary platform in the company's refractive centers. While VISX may indeed be retaining the legacy business of procedure fees from TLC's existing VISX lasers, it appears clear that VISX is losing TLC's new business to rival Alcon. If VISX's relationship with TLC remains so strong, then why is it that TLC is buying new lasers from Alcon, not VISX? Finally, I note that VISX has not disclosed the terms of the Bausch & Lomb license agreement and that, although I do not know the terms of that agreement, I cannot help but wonder whether the agreement includes a standstill that precludes Bausch & Lomb from bidding for VISX. I ask you a simple question: If such a limitation exists, are you willing to release Bausch & Lomb so that it could, if it so desired, act as a bidder for this company? Sincerely, /s/ Carl C. Icahn Carl C. Icahn On April 17, 2001, Mr. Icahn and his affiliates filed a definitive proxy statement with respect to VISX. Security holders are advised to read the definitive proxy statement and other documents related to the solicitation of proxies by Mr. Icahn and his affiliates from the stockholders of VISX for use at its 2001 annual meeting when such documents become available because they will contain important information. A definitive proxy statement and a form of proxy will be sent to stockholders of VISX on or about April 18, 2001 and are available at no charge at the Securities and Exchange Commission's website at http://www.sec.gov. Exhibit 2 FOR IMMEDIATE RELEASE ICAHN CHALLANGES VISX MANAGEMENT TO CONDUCT OPEN AUCTION New York, New York. April 18, 2001. In a letter sent today by Carl C. Icahn to Ms. Elizabeth Davila, the CEO of VISX, Mr. Icahn stated that he has recently had "preliminary discussions with the senior management of two companies in the ophthalmic industry regarding the potential acquisition of VISX through a merger in which VISX shareholders would receive a combination of cash and securities of approximately $32 per share". Mr. Icahn stated that "while there can be no assurance that these discussions would ultimately result in a transaction or even an offer, each of these companies indicated that they would be interested in discussing such a transaction". He also stated that he had met with representatives of the Industrial Bank of Japan, a member of the Mizuho Financial Group, who indicated that, subject to due diligence, they would be willing to consider supplying financing. However, there is no assurance that any financing would be available on acceptable terms for a transaction. Mr. Icahn also noted that the Industrial Bank of Japan informed him that they would be interested in reaching out to foreign companies to discuss their possible interest in a transaction with VISX. Mr. Icahn pointed out in the letter that he is a veteran in the field of mergers and acquisitions, including recent encounters with RJR Nabisco and Nabisco Group Holdings ("Nabisco"). Mr. Icahn stated that in the Nabisco example, in 2000, he bought shares as low as $8 per share. There was doubt that an open auction process for the sale of Nabisco would be successful. Although noting that Nabisco and VISX are not comparable as companies, Mr. Icahn stated he "helped persuade management to sell Nabisco in an open auction and, together with all other shareholders, realized a price of $30 per share as a result of the sale." In his letter, Mr. Icahn challenged the management of VISX to promise shareholders that they will immediately conduct an open auction for VISX and submit for shareholder approval the best offer for the Company at or above $32 per share. Mr. Icahn stated that in his opinion potential acquirers of VISX are currently likely to be doubtful of the sincerity of management's intentions to review strategic alternatives when, at the same time management says, as VISX did in a January 17, 2001 conference call, that "the Company is not for sale". Mr. Icahn stated that if the company agreed to submit for shareholder approval the best offer for the Company that is $32 per share or better, management would remove this doubt and facilitate the auction process. Mr. Icahn also noted that Ms. Davila and Mr. Logan, the Company's past chief executive officer, had already sold substantially all of their VISX holdings at very good prices. Mr. Icahn further observed that, although VISX has not disclosed the terms of the Bausch & Lomb license agreement and he did not know the terms of that agreement, he could not help but wonder whether the agreement includes a standstill that precludes Bausch & Lomb from bidding for VISX. Mr. Icahn asked whether VISX management would be willing to release Bausch & Lomb from any such restriction so that it could, if it so desired, act as a bidder for this company. In addition, Mr. Icahn stated that he was "troubled by a number of statements made by management on their quarterly earnings conference call on April 12, 2001 and their press release of the same date, which statements I consider both misleading and disingenuous." A copy of Mr. Icahn's letter to Ms. Davila is attached. # # # # Contact: Susan Gordon at (212) 702-4309. On April 17, 2001, Mr. Icahn and his affiliates filed a definitive proxy statement with respect to VISX. Security holders are advised to read the definitive proxy statement and other documents related to the solicitation of proxies by Mr. Icahn and his affiliates from the stockholders of VISX for use at its 2001 annual meeting when such documents become available because they will contain important information. A definitive proxy statement and a form of proxy will be sent to stockholders of VISX on or about April 18, 2001 and are available at no charge at the Securities and Exchange Commission's website at http://www.sec.gov. -----END PRIVACY-ENHANCED MESSAGE-----