-----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, EmdUXVh/JoOpBRqRTjTj+1wMKkhXKswo4ujZRbFUHEkxSEL+lPn6gJvm5K9Z3O92 i7ZfQ/CeBYnvArGu6C12yQ== 0000950129-03-006077.txt : 20031212 0000950129-03-006077.hdr.sgml : 20031212 20031212171701 ACCESSION NUMBER: 0000950129-03-006077 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20031209 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20031212 FILER: 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: 0630 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-19806 FILM NUMBER: 031052570 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 8-K 1 h11250e8vk.txt CYBERONICS, INC. ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of Earliest Event Reported): DECEMBER 9, 2003 CYBERONICS, INC. (Exact name of registrant as specified in its charter) DELAWARE 0-19806 76-0236465 (State or other (Commission (IRS Employer jurisdiction of file number) Identification No.) incorporation) CYBERONICS BUILDING 100 CYBERONICS BOULEVARD HOUSTON, TEXAS 77058 (Address of principal executive offices) (Zip code) (281) 228-7200 Registrant's telephone number, including area code: ================================================================================ ITEM 5. OTHER EVENTS The Board of Directors of Cyberonics, Inc. (the "Company") has approved Amendment No. 3 to the Company's Second Amended and Restated Preferred Share Rights Agreement (the "Agreement"). As amended, the Agreement provides that Boston Scientific Corporation ("BSX") may acquire up to 20% of the Company's outstanding shares, or such lesser amount as BSX holds as of the close of business on January 15, 2004. The press release announcing such amendment as well as Amendment No. 3 to the Second Amended and Restated Preferred Shares Right Agreement are attached hereto as exhibits. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS (c) Exhibits 99.1 Press Release of Cyberonics, Inc. dated as of December 10, 2003 99.2 Amendment No. 3 to the Second Amended and Restated Preferred Share Rights Agreement between Cyberonics, Inc. and Fleet National Bank, dated as of December 9, 2003. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. CYBERONICS, INC. /s/ Pamela B. Westbrook ------------------------------------------- Pamela B. Westbrook Vice President, Finance and Administration and Chief Financial Officer Date: December 12, 2003 EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION ------- ----------- 99.1 Press Release of Cyberonics, Inc. dated as of December 10, 2003 99.2 Amendment No. 3 to the Second Amended and Restated Preferred Share Rights Agreement between Cyberonics, Inc. and Fleet National Bank, dated as of December 9, 2003. EX-99.1 3 h11250exv99w1.txt PRESS RELEASE DATED 12/10/2003 Exhibit 99.1 CYBERONICS AMENDS SHAREHOLDER RIGHTS PLAN TO PERMIT BOSTON SCIENTIFIC TO ACQUIRE UP TO 20% OF CYBERONICS' SHARES HOUSTON, Texas, December 10, 2003 -- Cyberonics, Inc. (NASDAQ:CYBX) today announced that its Board of Directors approved an amendment of the Company's shareholder rights plan to permit Boston Scientific to increase its ownership from up to 15% to up to 20% of Cyberonics' outstanding shares from December 10, 2003 to January 15, 2004. "Cyberonics' Board of Directors and senior management team were pleased to honor Boston Scientifics' request to increase their ownership position," commented Robert P. ("Skip") Cummins, Cyberonics' Chairman and Chief Executive Officer. "As a rapidly growing, med-tech industry leader, Boston Scientific is in a unique position to appreciate what Cyberonics has accomplished in epilepsy and the enormous unmet need for an effective and tolerable long-term therapy for treatment resistant depression." ABOUT VNS THERAPY AND CYBERONICS Cyberonics, Inc. (NASDAQ:CYBX) was founded in 1987 to design, develop and market medical devices for the long-term treatment of epilepsy and other chronic neurological disorders using a unique therapy, vagus nerve stimulation (VNS). Stimulation is delivered by the VNS Therapy System, an implantable generator similar to a cardiac pacemaker. The VNS Therapy System delivers preprogrammed intermittent mild electrical pulses to the vagus nerve 24 hours a day. The Company's initial market is epilepsy, which is characterized by recurrent seizures. Epilepsy is the second most prevalent neurological disorder. The Cyberonics VNS Therapy System was approved by the FDA on July 16, 1997 for use as an adjunctive therapy in reducing the frequency of seizures in adults and adolescents over 12 years of age with partial onset seizures that are refractory to antiepileptic medications. The VNS Therapy System is also approved for sale as a treatment for epilepsy in all the member countries of the European Economic Area, Canada, Australia and other markets. To date, more than 22,000 epilepsy patients in 24 countries have accumulated over 56,000 patient years of experience using VNS Therapy. The VNS Therapy System is approved for sale in the European Economic Area and in Canada as a treatment for depression in patients with treatment-resistant or treatment intolerant major depressive episodes including unipolar depression and bipolar disorder (manic depression). VNS Therapy is at various levels of investigational clinical study as a potential treatment for depression, anxiety disorders, Alzheimer's disease, and chronic headache/migraine. An 87-volume, 460 patient PMA-Supplement (PMA-S) requesting approval to market the VNS Therapy System in the United States as an adjunctive long-term treatment of chronic or recurrent depression for patients who are experiencing a major depressive episode that has not had an adequate response to two or more antidepressant treatments was submitted to FDA and accepted for filing by FDA effective October 27, 2003. The Company is headquartered in Houston, Texas and has an office in Brussels, Belgium. For additional information please visit us at www.cyberonics.com. FORWARD LOOKING STATEMENTS This press release contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended and Section 21E of the Securities Exchange Act of 1934, as amended. Such forward-looking statements include statements concerning obtaining appropriate regulatory approvals, developing VNS as a treatment for depression and other indications, the timing and outcome of regulatory activities, and the purchase of shares by Boston Scientific. Statements contained in this press release are based upon information presently available to us and assumptions that we believe to be reasonable. We are not assuming any duty to update this information should those facts change or should we no longer believe the assumptions to be reasonable. Our actual results may differ materially. Important factors that may cause actual results to differ include, but are not limited to: continued market acceptance of VNS Therapy and sales of our product; the development and satisfactory completion of clinical trials and/or market test of VNS Therapy for the treatment of depression, Alzheimer's disease, anxiety, or other indications; adverse changes in coverage or reimbursement amounts by third-parties; intellectual property protection and potential infringement claims; maintaining compliance with government regulations and obtaining necessary government approvals for new applications; product liability claims and potential litigation; reliance on single suppliers and manufacturers for certain components; the accuracy of management's estimates of future expenses and sales; and other risks detailed in from time to time in the Company's filings with the SEC. CONTACT INFORMATION Pamela Westbrook Helen Shik Vice President of Finance and CFO Vice President Cyberonics, Inc. Schwartz Communications 100 Cyberonics Blvd. 230 Third Avenue Houston, TX 77058 Waltham, MA 02154 Main: (281) 228-7200 Main: (781) 684-0770 ext. 6587 Fax: (281) 218-9332 Fax: (781) 684-6500 pbw@cyberonics.com hshik@schwartz-pr.com # # # EX-99.2 4 h11250exv99w2.txt AMEND. #3 TO 2ND AMENDED PREFERRED SHARE RIGHTS EXHIBIT 99.2 AMENDMENT NO. 3 TO SECOND AMENDED AND RESTATED PREFERRED SHARE RIGHTS AGREEMENT This Amendment No. 3 (this "Amendment") to Second Amended and Restated Preferred Shares Rights Agreement (the "Rights Agreement") is made effective as of December 9, 2003. This Amendment is an amendment to the Rights Agreement dated August 21, 2000 between Cyberonics, Inc., a Delaware corporation (the "Company"), and Equiserve Trust Company, N.A. (referred to herein as the "Rights Agent"). RECITALS WHEREAS, pursuant to and in compliance with Section 27 of the Rights Agreement, the Company and the Rights Agent wish to amend the Rights Agreement as set forth herein; NOW THEREFORE, the parties hereto agree as follows: Section 1. Amendments. From and after the effective date of this Amendment, the Rights Agreement shall be amended as follows: (a) The definition of "Exempt Person" in Section 1 of the Rights Agreement shall be amended and restated to read in its entirety as follows: "Exempt Person" shall mean (a) the State of Wisconsin Investment Board ("SWIB"), unless such entity taken together with its Affiliates and Associates shall become the Beneficial Owner of 20% or more of the Common Shares outstanding subject to the same exceptions provided in the second and third sentences of the definition of "Acquiring Person" except that the reference to "15%" in such sentences shall be "20%" in the case of SWIB, and (b) Boston Scientific Corporation ("BSX"), unless such entity taken together with its Affiliates and Associates shall become the Beneficial Owner of 20% or more of the Common Shares outstanding subject to the same exceptions provided in the second and third sentences of the definition of "Acquiring Person" except that the reference to "15%" in such sentences shall be "20%" in the case of BSX, or such percentage that is less than 20% as shall be held by BSX as of the close of business on January 15, 2004. (b) Section 21 of the Rights Agreement shall be amended by adding the following sentence after the first sentence: "In the event the transfer agency relationship in effect between the Company and the Rights Agent terminates, the Rights Agent will be deemed to resign automatically on the effective date of such termination; and any required notice will be sent by the Company." (c) Section 27 of the Rights Agreement shall be amended and restated to read in its entirety as follows: Section 27. Supplements and Amendments. Prior to the occurrence of a Triggering Event, the Company may supplement or amend this Rights Agreement in any respect without the approval of any holders of Rights, and the Rights Agent shall, if the Company so directs, execute such supplement or amendment. From and after the occurrence of a Triggering Event, the Company and the Rights Agent may from time to time supplement or amend this Rights Agreement without the approval of any holders of Rights in order to (i) cure any ambiguity, (ii) correct or supplement any provision contained herein which may be defective or inconsistent with any other provisions herein, (iii) shorten or lengthen any time period hereunder, or (iv) to change or supplement the provisions hereunder in any manner that the Company may deem necessary or desirable and that shall not adversely affect the interests of the holders of Rights (other than an Acquiring Person or an Affiliate or Associate of an Acquiring Person); provided, this Rights Agreement may not be supplemented or amended to lengthen, pursuant to clause (iii) of this sentence, (A) a time period relating to when the Rights may be redeemed at such time as the Rights were not then redeemable or (B) any other time period unless such lengthening is for the purpose of protecting, enhancing or clarifying the rights of, and/or the benefits to, the holders of Rights (other than an Acquiring Person or an Affiliate or Associate of an Acquiring Person) and provided further, that for so long as each of SWIB or BSX is an "Exempt Person" (as defined herein), the definitions of "Exempt Person" and "Acquiring Person" shall not be amended in any manner which would adversely affect the application of such terms to SWIB or BSX without the prior consent of each such person. Upon the delivery of a certificate from an appropriate officer of the Company that states that the proposed supplement or amendment is in compliance with the terms of this Section 27, the Rights Agent shall execute such supplement or amendment. Prior to the Distribution Date, the interests of the holders of Rights shall be deemed coincident with the interests of the holders of Common Shares. (d) A new Section 35 shall be added to the Rights Agreement and shall read in its entirety as follows: Section 35. Force Majeure. Notwithstanding anything to the contrary contained herein, the Rights Agent shall not be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, terrorist acts, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war, or civil unrest. (e) Exhibit B (Form of Rights Certificate) and Exhibit C (Summary of Rights to Purchase Common Shares) to the Rights Agreement shall be amended to conform to the changes in the Rights Agreement made and effected pursuant to this Amendment. Section 2. Remainder of Agreement Not Affected. Except as set forth in Section 1 hereof, the terms and provisions of the Rights Agreement shall remain in full force and effect and are hereby ratified and confirmed. Section 3. Authority. Each party represents that such party has full power and authority to enter into this Amendment, and that this Amendment constitutes a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms. Section 4. Definitions, References. (a) Unless otherwise specifically defined herein, each term used herein which is defined in the Rights Agreement shall have the meaning assigned to such term in the Rights Agreement. (b) On and after the effective date of this Amendment (i) all references in the Rights Agreement, including Exhibits B and C to the Rights Agreement shall be deemed to refer to the Rights Agreement as amended by this Amendment, and all prior amendments, and (ii) all references to "hereof," "hereunder," "herein," "hereby" and other similar references contained in the Rights Agreement as well as each reference to "this Agreement" and each other similar reference contained in the Rights Agreement shall refer to the Rights Agreement, as amended. Section 5. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and attested, all as of the day and year first above written. CYBERONICS, INC. By: /s/ Robert P. Cummins ---------------------------------------- Robert P. Cummins Chief Executive Officer and President EQUISERVE TRUST COMPANY, N.A. By: /s/ Joshua McGinn ---------------------------------------- Joshua McGinn Senior Account Manager -----END PRIVACY-ENHANCED MESSAGE-----