Amendment No. 3 to Schedule 13D

-----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, F+u/MBFKhBZlrq0MU66DdJFpzUv74uJf8FypGguVoPpfmj9SF2HYaU1LprY4W0/A KptWLg1rXSywOAH1uf1CfQ== 0001193125-06-239832.txt : 20061121 0001193125-06-239832.hdr.sgml : 20061121 20061121110052 ACCESSION NUMBER: 0001193125-06-239832 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20061121 DATE AS OF CHANGE: 20061121 GROUP MEMBERS: BEDFORD FALLS INVESTORS, L.P. GROUP MEMBERS: COMMITTEE FOR CONCERNED CYBERONICS, INC. SHAREHOLDERS GROUP MEMBERS: JEFFREY E. SCHWARZ GROUP MEMBERS: KAREN FINERMAN GROUP MEMBERS: KJ ADVISORS, INC. GROUP MEMBERS: METROPOLITAN CAPITAL ADVISORS INTERNATIONAL LIMITED GROUP MEMBERS: METROPOLITAN CAPITAL ADVISORS SELECT FUND, L.P. GROUP MEMBERS: METROPOLITAN CAPITAL ADVISORS, L.P. GROUP MEMBERS: METROPOLITAN CAPITAL III, INC. GROUP MEMBERS: METROPOLITAN CAPITAL PARTNERS II, L.P. GROUP MEMBERS: METROPOLITAN CAPITAL PARTNERS III, L.P. GROUP MEMBERS: METROPOLITAN CAPITAL SELECT, L.L.C. GROUP MEMBERS: METROPOLITAN SPV GP, LLC GROUP MEMBERS: METROPOLITAN SPV, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CYBERONICS INC CENTRAL INDEX KEY: 0000864683 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 760236465 STATE OF INCORPORATION: DE FISCAL YEAR END: 0430 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-45039 FILM NUMBER: 061231910 BUSINESS ADDRESS: STREET 1: 100 CYBERONICS CENTER BLVD STREET 2: SUITE 600 CITY: HOUSTON STATE: TX ZIP: 77058 BUSINESS PHONE: (281) 228-7200 MAIL ADDRESS: STREET 1: 100 CYBERONICS BLVD STREET 2: SUITE 600 CITY: HOUSTON STATE: TX ZIP: 77058 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: METROPOLITAN CAPITAL ADVISORS INC CENTRAL INDEX KEY: 0001280054 IRS NUMBER: 133673512 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 660 MADISON AVE STREET 2: 20TH FL CITY: NEW YORK STATE: NY ZIP: 10021 BUSINESS PHONE: 2124868100 MAIL ADDRESS: STREET 1: 660 MADISON AVE STREET 2: 20TH FL CITY: NEW YORK STATE: NY ZIP: 10021 SC 13D/A 1 dsc13da.htm AMENDMENT NO. 3 TO SCHEDULE 13D Amendment No. 3 to Schedule 13D

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

Amendment No. 3

CYBERONICS, INC.

(Name of Issuer)

COMMON STOCK, $0.01 PAR VALUE

(Title of Class of Securities)

23251P102

(CUSIP Number)

Metropolitan Capital Advisors, Inc.

and

The Committee for Concerned Cyberonics, Inc. Shareholders

c/o Bedford Falls Investors, L.P.

660 Madison Avenue, 20^th Floor

New York, NY 10021

(212) 486-8100

Copies to:

David K. Robbins, Esq.

Bingham McCutchen LLP

355 South Grand Avenue, Suite 4400

Los Angeles, CA 90071

(213) 680-6400

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

November 20, 2006

(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 which is the subject of this Schedule 13D, and is filing this schedule because of §§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 §240.13d-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

This Amendment No. 3 relates to the Schedule 13D filed with the Securities and Exchange Commission on September 11, 2006, as amended by Amendment No. 1 filed on September 28, 2006, and as amended by Amendment No. 2 filed on November 1, 2006 by Metropolitan SPV, L.P., a Delaware limited partnership (“SPV”); Metropolitan SPV GP, L.L.C., a Delaware limited liability company (“SPV GP”); Bedford Falls Investors, L.P., a Delaware limited partnership (“Bedford”); Metropolitan Capital Advisors, L.P., a Delaware limited partnership (“MetCap”); Metropolitan Capital Advisors, Inc., a New York corporation (“MetCap GP”); Metropolitan Capital Partners II, L.P., a New York limited partnership (“Partners II”); KJ Advisors, Inc., a New York corporation (“Partners II GP”); Metropolitan Capital Advisors International Limited, a British Virgin Islands international business company (“MetCap International”); Metropolitan Capital Partners III, L.P., a Delaware limited partnership (“Partners III”); Metropolitan Capital III, Inc., a Delaware corporation (“Partners III GP”); Metropolitan Capital Advisors Select Fund, L.P., a Delaware limited partnership (“Select”); Metropolitan Capital Select, L.L.C., a Delaware limited liability company (“Select GP”) (each of the foregoing, collectively the “MetCap Entities”); Jeffrey E. Schwarz, a citizen of the United States of America (“Schwarz”); Karen Finerman, a citizen of the United States of America (“Finerman”); and The Committee for Concerned Cyberonics, Inc. Shareholders (the “Committee”), which is not a business entity and has no place of organization (Schwarz, Finerman, the Committee and the MetCap Entities, collectively the “Reporting Persons”), relating to the common stock, par value $0.01 per share (the “Shares”), of Cyberonics, Inc., a Delaware corporation (the “Issuer”). The principal executive offices of the Issuer are located at 100 Cyberonics Blvd., Houston, Texas 77058.

Item 4. Purpose of Transaction.

Item 4 of the Schedule 13D is hereby amended by the addition of the following:

On November 20, 2006, MetCap GP, on behalf of itself and the Committee, issued a press release related to the apparent forced resignation of the Issuer’s chief executive officer, a copy of which is filed as Exhibit 1 hereto and incorporated by reference herein.

Item 7. Material to be filed as Exhibits.


Exhibit 1		Press Release dated November 20, 2006.

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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: November 21, 2006

METROPOLITAN SPV, L.P.

/s/ Karen Finerman

By: Karen Finerman

Title: Managing Member of Metropolitan SPV GP,

L.L.C., which is the general partner of Metropolitan

SPV, L.P.

METROPOLITAN SPV GP, LLC

/s/ Karen Finerman

By: Karen Finerman

Title: Managing Member

BEDFORD FALLS INVESTORS, L.P.

/s/ Karen Finerman

By: Karen Finerman

Title: President of Metropolitan Capital Advisors, Inc.,

which is the general partner of Metropolitan Capital

Advisors, L.P.,

which is the general partner of Bedford Falls Investors,

L.P.

Page 3 of 6

METROPOLITAN CAPITAL ADVISORS, INC.

/s/ Karen Finerman

By: Karen Finerman

Title: President of Metropolitan Capital Advisors, Inc.

METROPOLITAN CAPITAL ADVISORS, L.P.

/s/ Karen Finerman

By: Karen Finerman

Title: President of Metropolitan Capital Advisors, Inc.,

which is the general partner of Metropolitan Capital

Advisors, L.P.

KJ ADVISORS, INC.

/s/ Jeffrey E. Schwarz

By: Jeffrey E. Schwarz

Title: Chief Executive Officer

METROPOLITAN CAPITAL PARTNERS II, L.P.

/s/ Jeffrey E. Schwarz

By: Jeffrey E. Schwarz

Title: Chief Executive Officer of KJ Advisors, Inc.,

which is the general partner of Metropolitan Capital

Partners II, L.P.

METROPOLITAN CAPITAL III, INC.

/s/ Jeffrey E. Schwarz

By: Jeffrey E. Schwarz

Title: Chief Executive Officer

Page 4 of 6

METROPOLITAN CAPITAL PARTNERS III, L.P.

/s/ Jeffrey E. Schwarz

By: Jeffrey E. Schwarz

Title: Chief Executive Officer of Metropolitan Capital

III, Inc., which is the general partner of Metropolitan

Capital Partners III, L.P.

METROPOLITAN CAPITAL ADVISORS SELECT

FUND, L.P.

/s/ Jeffrey E. Schwarz

By: Jeffrey E. Schwarz

Title: Managing Member of Metropolitan Capital

Select, L.L.C., which is the general partner of

Metropolitan Capital Advisors Select Fund, L.P.

METROPOLITAN CAPITAL SELECT, L.L.C.

/s/ Jeffrey E. Schwarz

By: Jeffrey E. Schwarz

Title: Managing Member

METROPOLITAN CAPITAL ADVISORS

INTERNATIONAL LIMITED

/s/ Jeffrey E. Schwarz

By: Jeffrey E. Schwarz

Title: Chief Executive Officer of Metropolitan Capital

III, Inc., which is the general partner of Metropolitan

Capital Partners III, L.P., which is the investment

manager of Metropolitan Capital Advisors International

Limited

/s/ Jeffrey E. Schwarz

/s/ Karen Finerman

Karen Finerman

Page 5 of 6

EX-1 2 dex1.htm PRESS RELEASE DATED NOVEMBER 20, 2006. Press Release dated November 20, 2006.

Exhibit 1

MCA SAYS MANAGEMENT CHANGES AT CYBERONICS LONG OVERDUE;

REMAINS COMMITTED TO PURSUING ELECTION OF NOMINEES TO BOARD;

SAYS CORPORATE GOVERNANCE REFORMS STILL NEEDED

New York, November 20, 2006 – Metropolitan Capital Advisors, Inc. (“MCA”) and The Committee for Concerned Cyberonics, Inc. Shareholders, which together with related parties own approximately 7.33% of the outstanding common stock of Cyberonics, Inc. (“Cyberonics” or the “Company”) (Nasdaq: CYBX), today issued the following statement in connection with the resignation of Cyberonics, Inc. top executives:

“We are pleased that our efforts to instill accountability, improve corporate governance and reestablish the Company’s credibility have finally begun to bear fruit. The resignation of Mr. Cummins was an important first step. However, in light of the circumstances surrounding Mr. Cummins’ apparent forced resignation—under the cloud of options spring loading, backdating and financial restatements—we find the Board’s decision to lavishly reward him, with what we estimate to be roughly $5 million in cash and stock, and the accelerated vesting of his options and restricted stock awards, to be inexplicable.”

MCA and the Committee added:

“We note that while the board has now set a record date for shareholders, there is still no firm commitment for a date for the annual meeting. We expect such a date to be forthcoming in a timely manner.

“MCA remains committed to pursuing the election of our nominees to the Cyberonics Board of Directors and seeing the implementation of meaningful corporate governance reform at the Company. We have previously sought to establish a dialogue with the Company and hope that the changes at Cyberonics announced today will facilitate that process. We remain eager to work with the Cyberonics Board and the new interim CEO to resolve our differences and participate on a reconstituted Board of Directors, one that will include MCA’s nominees, committed to maximizing value for all shareholders.”

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