-----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, Tf8Utt+PngruEwcyQE2XX6pLrf6+AM53+5mdccZ6OeC51u0/rc4GEk+QIVvUM7et rYtSS2OeZ/bYsRVH9wLlgw== 0000928475-07-000017.txt : 20070122 0000928475-07-000017.hdr.sgml : 20070122 20070122172050 ACCESSION NUMBER: 0000928475-07-000017 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20070122 DATE AS OF CHANGE: 20070122 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 SEC ACT: 1934 Act SEC FILE NUMBER: 005-45039 FILM NUMBER: 07544084 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: ICAHN CARL C ET AL CENTRAL INDEX KEY: 0000921669 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 000000000 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: C/O ICAHN ASSOCIATES CORP. STREET 2: 767 FIFTH AVE., SUITE 4700 CITY: NEW YORK STATE: NY ZIP: 10153 BUSINESS PHONE: 2127024300 MAIL ADDRESS: STREET 1: C/O ICAHN ASSOCIATES CORP. STREET 2: 767 FIFTH AVE., SUITE 4700 CITY: NEW YORK STATE: NY ZIP: 10153 SC 13D 1 sc13d012207.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No.__)* Cyberonics, Inc. (Name of Issuer) Common Stock, Par Value $.01 (Title of Class of Securities) 23251P102 (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) January 10, 2007 (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). SCHEDULE 13D CUSIP No. 23251P102 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 502,152 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 502,152 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 502,152 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.95% 14 TYPE OF REPORTING PERSON* PN SCHEDULE 13D CUSIP No. 23251P102 1 NAME OF REPORTING PERSON Hopper Investments 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* OO 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 0 8 SHARED VOTING POWER 502,152 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 502,152 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 502,152 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.95% 14 TYPE OF REPORTING PERSON* OO SCHEDULE 13D CUSIP No. 23251P102 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* OO 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 0 8 SHARED VOTING POWER 502,152 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 502,152 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 502,152 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.95% 14 TYPE OF REPORTING PERSON* CO SCHEDULE 13D CUSIP No. 23251P102 1 NAME OF REPORTING PERSON Icahn Partners Master Fund LP 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 Cayman Islands NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 1,134,509 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 1,134,509 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,134,509 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.41% 14 TYPE OF REPORTING PERSON* PN SCHEDULE 13D CUSIP No. 23251P102 1 NAME OF REPORTING PERSON Icahn Offshore LP 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* OO 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 0 8 SHARED VOTING POWER 1,134,509 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 1,134,509 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,134,509 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.41% 14 TYPE OF REPORTING PERSON* PN SCHEDULE 13D CUSIP No. 23251P102 1 NAME OF REPORTING PERSON CCI Offshore 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* OO 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 0 8 SHARED VOTING POWER 1,134,509 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 1,134,509 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,134,509 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.41% 14 TYPE OF REPORTING PERSON* CO SCHEDULE 13D CUSIP No. 23251P102 1 NAME OF REPORTING PERSON Icahn Partners LP 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 874,103 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 874,103 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 874,103 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.40% 14 TYPE OF REPORTING PERSON* PN SCHEDULE 13D CUSIP No. 23251P102 1 NAME OF REPORTING PERSON Icahn Onshore LP 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* OO 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 0 8 SHARED VOTING POWER 874,103 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 874,103 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 874,103 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.40% 14 TYPE OF REPORTING PERSON* PN SCHEDULE 13D CUSIP No. 23251P102 1 NAME OF REPORTING PERSON CCI Onshore 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* OO 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 0 8 SHARED VOTING POWER 874,103 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 874,103 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 874,103 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.40% 14 TYPE OF REPORTING PERSON* CO SCHEDULE 13D CUSIP No. 23251P102 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* OO 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 2,510,764 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 2,510,764 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,510,764 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.77% 14 TYPE OF REPORTING PERSON* IN SCHEDULE 13D Item 1. Security and Issuer This statement relates to the Common Stock, par value $.01 (the "Shares"), issued by Cyberonics, Inc. (the "Issuer"). The address of the principal executive offices of the Issuer is 100 Cyberonics Boulevard, Houston, Texas 77058. Item 2. Identity and Background The Reporting Persons (as hereafter defined) are High River Limited Partnership, a Delaware limited partnership ("High River"), Hopper Investments LLC, a Delaware limited liability company ("Hopper"), Barberry Corp., a Delaware corporation ("Barberry"), Icahn Partners Master Fund LP, a Cayman Islands exempted limited partnership ("Icahn Master"), Icahn Offshore LP, a Delaware limited partnership ("Icahn Offshore"), CCI Offshore Corp., a Delaware corporation ("CCI Offshore"), Icahn Partners LP, a Delaware limited partnership ("Icahn Partners"), Icahn Onshore LP, a Delaware limited partnership ("Icahn Onshore"), CCI Onshore Corp., a Delaware corporation ("CCI Onshore"), and Carl C. Icahn, a citizen of the United States of America (collectively, the "Reporting Persons"). The principal business address of each of High River, Hopper, Barberry, Icahn Offshore, CCI Offshore, Icahn Partners, Icahn Onshore, and CCI Onshore is White Plains Plaza, 445 Hamilton Avenue - Suite 1210, White Plains, NY 10601. The principal business address of Icahn Master is c/o Walkers SPV Limited, P.O. Box 908GT, 87 Mary Street, George Town, Grand Cayman, Cayman Islands. The principal business address of Carl C. Icahn is c/o Icahn Associates Corp., 767 Fifth Avenue, 47th Floor, New York, New York 10153. Barberry is the sole member of Hopper, which is the general partner of High River. CCI Offshore is the general partner of Icahn Offshore, which is the general partner of Icahn Master. CCI Onshore is the general partner of Icahn Onshore, which is the general partner of Icahn Partners. Each of Barberry, CCI Offshore and CCI Onshore is 100 percent owned by Carl C. Icahn. As such, Mr. Icahn is in a position indirectly to determine the investment and voting decisions made by each of the Reporting Persons. Each of High River and Barberry is primarily engaged in the business of investing in securities. Hopper is primarily engaged in the business of acting as the general partner of High River. Each of Icahn Master and Icahn Partners is primarily engaged in the business of investing in securities. Icahn Offshore and Icahn Onshore are primarily engaged in the business of serving as the general partner of Icahn Master and Icahn Partners, respectively. CCI Offshore and CCI Onshore are primarily engaged in the business of serving as the general partner of Icahn Offshore and Icahn Onshore, respectively. Carl C. Icahn's present principal occupation or employment is (i) owning all of the interest in CCI Onshore and CCI Offshore, through which Mr. Icahn indirectly directs and manages the investments of Icahn Master and Icahn Partners and (ii) acting as President and a director of Starfire Holding Corporation ("Starfire"), and as the Chairman of the Board and a director of various of Starfire's subsidiaries. Starfire is primarily engaged in the business of investing in and holding securities of various entities. The name, citizenship, present principal occupation or employment and business address of each director and executive officer of the Reporting Persons are set forth in Schedule A attached hereto. None of the Reporting Persons nor any manager or executive officer of the Reporting Persons, 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 2,510,764 Shares purchased by High River, Icahn Master and Icahn Partners, collectively, was $46,894,340.89 (including commissions). The source of funding for the purchase of these Shares was the general working capital of the respective purchasers. The Shares are held by the Reporting Persons in margin accounts. Such margin accounts may from time to time have debit balances. Since other securities are held in such margin accounts, it is not possible to determine the amounts, if any, of margin used with respect to the purchase of the Shares. Item 4. Purpose of Transaction The Reporting Persons acquired their positions in the Shares in the belief that they were undervalued. On January 4, 2007, Metropolitan Capital Advisors, Inc. (together with the other persons filing the proxy statement, "Metropolitan") filed a Definitive Proxy Statement on Schedule 14A soliciting proxies from stockholders of the Issuer to vote for Metropolitan's three director nominees at the Issuer's 2006 Annual Stockholders' Meeting on February 1, 2007. The Reporting Persons intend to support Metropolitan's three director nominees. The Reporting Persons may, from time to time and at any time, acquire additional Shares in the open market or otherwise and reserve the right to dispose of any or all of their Shares in the open market or otherwise, at any time and from time to time, and to engage in any hedging or similar transactions with respect to the Shares. Item 5. Interest in Securities of the Issuer (a) The Reporting Persons may be deemed to beneficially own, in the aggregate, 2,510,764 Shares, representing approximately 9.77% of the Issuer's outstanding Shares (based upon the 25,711,387 Shares stated to be outstanding as of December 18, 2006 by the Issuer in the Issuer's Definitive Proxy Statement on Schedule 14A, dated January 6, 2007, filed with the Securities and Exchange Commission on January 5, 2007). (b) High River has sole voting power and sole dispositive power with regard to 502,152 Shares. Each of Hopper, Barberry and Carl C. Icahn has shared voting power and shared dispositive power with regard to such Shares. Icahn Master has sole voting power and sole dispositive power with regard to 1,134,509 Shares. Each of Icahn Offshore, CCI Offshore and Carl C. Icahn has shared voting power and shared dispositive power with regard to such Shares. Icahn Partners has sole voting power and sole dispositive power with regard to 874,103 Shares. Each of Icahn Onshore, CCI Onshore and Carl C. Icahn has shared voting power and shared dispositive power with regard to such Shares. Each of Hopper, Barberry and Mr. Icahn, by virtue of their relationships to High River (as disclosed in Item 2), may be deemed to indirectly beneficially own (as that term is defined in Rule 13d-3 under the Act) the Shares which High River directly beneficially owns. Each of Hopper, Barberry and Mr. Icahn disclaims beneficial ownership of such Shares for all other purposes. Each of Icahn Offshore, CCI Offshore and Mr. Icahn, by virtue of their relationships to Icahn Master (as disclosed in Item 2), may be deemed to indirectly beneficially own (as that term is defined in Rule 13d-3 under the Act) the Shares which Icahn Master directly beneficially owns. Each of Icahn Offshore, CCI Offshore and Mr. Icahn disclaims beneficial ownership of such Shares for all other purposes. Each of Icahn Onshore, CCI Onshore and Mr. Icahn, by virtue of their relationships to Icahn Partners (as disclosed in Item 2), may be deemed to indirectly beneficially own (as that term is defined in Rule 13d-3 under the Act) the Shares which Icahn Partners directly beneficially owns. Each of Icahn Onshore, CCI Onshore and Mr. Icahn disclaims beneficial ownership of such Shares for all other purposes. (c) The following table sets forth all transactions with respect to Shares effected during the past sixty (60) days by any of the Reporting Persons, inclusive of any transactions effected through 5:30 pm, Standard Eastern Time, on January 22, 2007. Except as otherwise indicated, all transactions were effected in the open market, and the table includes commissions paid in per share prices.
Name Date Shares Purchased Price Per Share - ---------------- ------------------- ----------------- ----------------- High River January 10, 2007 24,607 $20.13 - ---------------- ------------------- ----------------- ----------------- High River January 11, 2007 6,968 $20.26 - ---------------- ------------------- ----------------- ----------------- High River January 12, 2007 29,600 $20.64 - ---------------- ------------------- ----------------- ----------------- High River January 16, 2007 25,200 $20.44 - ---------------- ------------------- ----------------- ----------------- High River January 17, 2007 20,000 $20.47 - ---------------- ------------------- ----------------- ----------------- High River January 18, 2007 39,146 $19.93 - ---------------- ------------------- ----------------- ----------------- High River January 19, 2007 71,781 $19.44 - ---------------- ------------------- ----------------- ----------------- High River January 22, 2007 34,850 $19.47 - ---------------- ------------------- ----------------- ----------------- Icahn Partners January 10, 2007 53,603 $20.13 - ---------------- ------------------- ----------------- ----------------- Icahn Partners January 11, 2007 12,128 $20.26 - ---------------- ------------------- ----------------- ----------------- Icahn Partners January 12, 2007 51,523 $20.64 - ---------------- ------------------- ----------------- ----------------- Icahn Partners January 16, 2007 43,865 $20.44 - ---------------- ------------------- ----------------- ----------------- Icahn Partners January 17, 2007 34,813 $20.47 - ---------------- ------------------- ----------------- ----------------- Icahn Partners January 18, 2007 68,140 $19.93 - ---------------- ------------------- ----------------- ----------------- Icahn Partners January 19, 2007 124,972 $19.44 - ---------------- ------------------- ----------------- ----------------- Icahn Partners January 22, 2007 60,666 $19.47 - ---------------- ------------------- ----------------- ----------------- Icahn Master January 10, 2007 44,827 $20.13 - ---------------- ------------------- ----------------- ----------------- Icahn Master January 11, 2007 15,742 $20.26 - ---------------- ------------------- ----------------- ----------------- Icahn Master January 12, 2007 66,877 $20.64 - ---------------- ------------------- ----------------- ----------------- Icahn Master January 16, 2007 56,935 $20.44 - ---------------- ------------------- ----------------- ----------------- Icahn Master January 17, 2007 45,187 $20.47 - ---------------- ------------------- ----------------- ----------------- Icahn Master January 18, 2007 88,445 $19.93 - ---------------- ------------------- ----------------- ----------------- Icahn Master January 19, 2007 162,151 $19.44 - ---------------- ------------------- ----------------- ----------------- Icahn Master January 22, 2007 78,738 $19.47
Item 6. Contracts, Arrangements, Understandings or Relationship with Respect to Securities of the Issuer Except as otherwise described herein, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any person with respect to any securities of the Issuer, including but not limited to 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 loss, or the giving or withholding of proxies. Item 7. Material to be Filed as Exhibits 1 Joint Filing Agreement of the Reporting Persons SIGNATURE After reasonable inquiry and to the best of each 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: January 22, 2007 HIGH RIVER LIMITED PARTNERSHIP By: Hopper Investments LLC, general partner By: Barberry Corp., sole member By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: Authorized Signatory HOPPER INVESTMENTS LLC By: Barberry Corp., sole member By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: Authorized Signatory BARBERRY CORP. By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: Authorized Signatory ICAHN PARTNERS MASTER FUND LP By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: Authorized Signatory ICAHN OFFSHORE LP By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: Authorized Signatory CCI OFFSHORE CORP. By: /s/ Keith A. Meister -------------------- Name: Keith A. Meister Title: President; Secretary ICAHN PARTNERS LP By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: Authorized Signatory ICAHN ONSHORE LP By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: Authorized Signatory CCI ONSHORE CORP. By: /s/ Keith A. Meister -------------------- Name: Keith A. Meister Title: President; Secretary /s/ Carl C. Icahn - ----------------- CARL C. ICAHN [Signature Page of Schedule 13D - Cyberonics, Inc.] JOINT FILING AGREEMENT In accordance with Rule 13d-1(k)(1) 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 of Cyberonics, Inc. 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 22nd day of January, 2007. HIGH RIVER LIMITED PARTNERSHIP By: Hopper Investments LLC, general partner By: Barberry Corp., sole member By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: Authorized Signatory HOPPER INVESTMENTS LLC By: Barberry Corp., sole member By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: Authorized Signatory BARBERRY CORP. By: /s/ Edward E. Mattner -------------------------- Name: Edward E. Mattner Title: Authorized Signatory ICAHN PARTNERS MASTER FUND LP By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: Authorized Signatory ICAHN OFFSHORE LP By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: Authorized Signatory CCI OFFSHORE CORP By: /s/ Keith A. Meister -------------------- Name: Keith A. Meister Title: President; Secretary ICAHN PARTNERS LP By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: Authorized Signatory ICAHN ONSHORE LP By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: Authorized Signatory CCI ONSHORE CORP By: /s/ Keith A. Meister -------------------- Name: Keith A. Meister Title: President; Secretary /s/ Carl C. Icahn - ----------------- CARL C. ICAHN [Signature Page of Joint Filing Agreement to Schedule 13D - Cyberonics, Inc.] SCHEDULE A DIRECTORS AND EXECUTIVE OFFICERS OF THE REPORTING PERSONS The following sets forth the name, position, and principal occupation of each director and executive officer of each of the Reporting Persons. Each such person is a citizen of the United States of America. Except as otherwise indicated, the business address of each director and officer is c/o Icahn Associates Corp., 767 Fifth Avenue, 47th Floor, New York, New York 10153. To the best of the Reporting Persons' knowledge, except as set forth in this statement on Schedule 13D, none of the directors or executive officers of the Reporting Persons own any Shares. HIGH RIVER LIMITED PARTNERSHIP Name Position - ---- -------- Hopper Investments LLC General Partner HOPPER INVESTMENTS LLC Name Position - ---- -------- Barberry Corp. Sole Member Edward E. Mattner Vice President BARBERRY CORP. Name Position - ---- -------- Carl C. Icahn Chairman of the Board; President Jordan Bleznick Vice President/Taxes Edward E. Mattner Vice President; Authorized Signatory Gail Golden Vice President; Authorized Signatory Vincent J. Intrieri Vice President; Authorized Signatory Keith Cozza Secretary; Treasurer Tina March Authorized Signatory ICAHN PARTNERS MASTER FUND LP Name Position - ---- -------- Icahn Offshore LP General Partner Keith A. Meister Executive Vice President ICAHN OFFSHORE LP Name Position - ---- -------- CCI Offshore Corp. General Partner Keith A. Meister Executive Vice President CCI OFFSHORE CORP. Name Position - ---- -------- Carl C. Icahn Director Keith A. Meister President and Secretary Vincent J. Intrieri Vice President and Treasurer Jordan Bleznick Vice President-Taxes ICAHN PARTNERS LP Name Position - ---- -------- Icahn Onshore LP General Partner Keith A. Meister Executive Vice President ICAHN ONSHORE LP Name Position - ---- -------- CCI Onshore Corp. General Partner Keith A. Meister Executive Vice President CCI ONSHORE CORP Name Position - ---- -------- Carl C. Icahn Director Keith A. Meister President and Secretary Vincent J. Intrieri Vice President and Treasurer Jordan Bleznick Vice President-Taxes -----END PRIVACY-ENHANCED MESSAGE-----