AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 25, 2002
Registration No.333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CYBERONICS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 0236465
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 CYBERONICS BLVD.,
CYBERONICS BUILDING,
HOUSTON, TEXAS 77058
(281) 228-7200
(Address of principal executive offices, including zip code)
CYBERONICS, INC. AMENDED AND RESTATED 1996 STOCK OPTION PLAN
(Full title of the plan)
PAMELA B. WESTBROOK
VICE PRESIDENT & CHIEF FINANCIAL OFFICER
100 CYBERONICS BLVD.,
CYBERONICS BUILDING,
HOUSTON, TEXAS 77058
(Name and address of agent for service)
(281) 228-7200
(Telephone number, including area code, of agent for service)
Copies to:
David P. Oelman
Vinson & Elkins L.L.P.
2300 First City Tower, 1001 Fannin Street
Houston, Texas 77002
(713) 758-2222
CALCULATION OF REGISTRATION FEE
MAXIMUM
TITLE OF AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE REGISTERED OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED (1)(2) PER SHARE (3) OFFERING PRICE REGISTRATION FEE
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Common Stock, 1,000,000 Units $10.14 $ 10,140,000 $933
$.01 par value..............
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(1) The number of shares of Common Stock registered hereby consists of
1,000,000 additional shares authorized to be issued under the Amended and
Restated 1996 Stock Option Plan (the "Plan"). The number of shares of
Common Stock registered hereby is subject to adjustment to prevent dilution
resulting from stock splits, stock dividends or similar transactions.
(2) Includes preferred share purchase rights associated with the Common Stock.
No separate fee is payable in respect of the registration of such preferred
share purchase rights.
(3) Estimated in part pursuant to Rule 457(h) under the Securities Act of 1933
(the "Securities Act"), and in part pursuant to Rule 457(c) under the
Securities Act. The proposed maximum offering price per share represents a
weighted average of the foregoing estimates calculated in accordance with
Rule 457(c) and 457(h) under the Securities Act.
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STATEMENT UNDER GENERAL INSTRUCTION E--REGISTRATION OF ADDITIONAL SHARES
On July 19, 2002, the Board of Directors of Cyberonics, Inc. (the
"Company") approved an amendment to the Company's Amended and Restated 1996
Stock Option Plan (the "Plan") to increase the maximum number of shares of the
Company's Common Stock, par value $0.01 (the "Common Stock"), that may be issued
under the Plan by 1,000,000. This Registration Statement has been filed to
register the additional 1,000,000 shares of Common Stock issuable pursuant to
options to be granted under the Plan, as amended.
The additional shares to be registered by this Registration Statement
are of the same class as those securities covered by the Company's previously
filed Registration Statement on Form S-8 filed on January 22, 2002 (Registration
No. 333-81158) (the "Prior Registration Statement"). Pursuant to General
Instruction E to Form S-8, the contents of the Prior Registration Statement,
including periodic reports that the Company filed after the Prior Registration
Statement to maintain current information about the Company, are incorporated
herein by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS.
The following exhibits are filed herewith:
4.1 Fifth Amendment to the Cyberonics, Inc. Amended and Restated
1996 Stock Option Plan.
5.1 Opinion of Vinson & Elkins L.L.P.
23.1 Consent of KPMG LLP
23.2 Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1
24.1 Powers of Attorney (included on the signature page to this
registration statement)
II-1
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable rounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on the 25th day of July,
2002.
CYBERONICS, INC.
By: /s/ PAMELA B. WESTBROOK
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Pamela B. Westbrook
Vice President, Finance and Administration,
Secretary and Chief Financial Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert P. Cummins and Pamela B. Westbrook
as his or her true and lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and anything appropriate or
necessary to be done, as fully and for all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agent or their substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the 25th day of July, 2002.
SIGNATURE TITLE
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/s/ ROBERT P. CUMMINS President, Chief Executive Officer and Chairman of the
-------------------------------------------- Board of Directors (Principal Executive Officer)
Robert P. Cummins
/s/ PAMELA B. WESTBROOK Vice President, Finance and Administration, Secretary
-------------------------------------------- and Chief Financial Officer (Principal Financial and
Pamela B. Westbrook Accounting Officer)
* Director
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Reese S. Terry, Jr.
* Director
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Stanley H. Appel, M.D.
* Director
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Tony Coelho
* Director
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Thomas A. Duerden, Ph.D.
* Director
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Michael J. Strauss, M.D.
* Director
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Alan J. Olsen
* Director
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Ronald A. Matricaria
*Indicates that the Registration Statement was signed by Pamela B. Westbrook as
Power of Attorney and Attorney-in-Fact.
II-2
INDEX TO EXHIBITS
4.1* Fifth Amendment to the Cyberonics, Inc. Amended and Restated
1996 Stock Option Plan.
5.1* Opinion of Vinson & Elkins L.L.P.
23.1* Consent of KPMG LLP.
23.2* Consent of Vinson & Elkins L.L.P. (contained in Exhibit 5.1
hereto).
24.1* Powers of Attorney (included on the signature page to this
registration statement).
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* Filed herewith.