<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 10, 1998
REGISTRATION NO.
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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 76-0236465
(STATE OF INCORPORATION) (I.R.S. EMPLOYER
IDENTIFICATION NO.)
16511 SPACE CENTER BLVD. #600
HOUSTON, TEXAS 77062
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CYBERONICS, INC. 1997 STOCK PLAN
(FULL TITLE OF THE PLAN)
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JOHN K. BAKEWELL
CYBERONICS, INC.
16511 SPACE CENTER BLVD. #600
HOUSTON, TEXAS 77062
(281) 228-7200
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
KENNETH M. SIEGEL, ESQ.
JOSHUA A. LIPP, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94306
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE
TO BE TO BE PRICE OFFERING AMOUNT OF
REGISTERED REGISTERED PER SHARE (1) PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
COMMON STOCK, $0.01 PAR VALUE 1,000,000 $19.781 $19,781,244.51 $5,835
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</TABLE>
(1) Estimated in part pursuant to rule 457(h) under the Securities Act of
1933, as amended (the "Act"), and in part pursuant to Rule 457(c) under
the act. With respect to 791,254 shares subject to outstanding options to
purchase Common Stock under the Plan, the Proposed Maximum Offering Price
Per Share is equal to the weighted average exercise price of $17.073 per
share pursuant to Rule 457(h). With respect to 208,746 shares of Common
Stock available for future grant under the Plan, the estimated Proposed
Maximum Offering Price Per Share was estimated pursuant to Rule 457(c)
whereby the per share price is the average between the high and low price
reported in the Nasdaq National Market on April 8, 1998, which average
was $30.047. The Proposed Maximum Offering Price Per Share represents a
weighted average of the foregoing estimates calculated in accordance with
Rules 457(c) and 457(h).
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This registration statement relates to 1,000,000 shares of Common Stock
par value $0.01 per share (the "Common Stock") of Cyberonics, Inc., a
Delaware Corporation (the "Registrant") being registered for use under the
Registrant's 1997 Stock Plan (the "Plan")
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference in this
registration statement the following documents and information heretofore
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Annual Report of Registrant on Form 10-K for the fiscal year
ended June 30, 1997 filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended September 30, 1997 and December 31, 1997.
(c) The description of Registrant's Common Stock to be offered hereby
contained in the Company's Registration Statement on Form 8-A, as
declared effective by the Commission on February 10, 1993, filed
pursuant to Section 12 of the Exchange Act and any amendment or
report filed for the purpose of updating such description.
All documents, reports and definitive proxy or information statements
subsequently filed by Registrant pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be part
hereof from the date of filing such documents.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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<PAGE>
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a
court to award or a corporation's Board of Directors to grant indemnification
to directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of
1933, as amended. The Company has included in the Certificate of
Incorporation a provision that to the fullest extent permitted by Delaware
law, the Company's directors will not be liable for monetary damages for
breach of the directors' fiduciary duty of care to the Company and its
stockholders. In addition, the Company's Bylaws provide that the Company is
required to indemnify its officers and directors to the fullest extent
permitted by Delaware law, including those circumstances in which
indemnification would otherwise be discretionary, and that the Company is
required to advance expenses to its officers and directors as incurred.
Further, the Company has entered into indemnification agreements with its
officers and directors, providing such individuals indemnification to the
maximum extent permitted by the Delaware General Corporation Law.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Document
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<S> <C>
4.1(1) Cyberonics, Inc. 1997 Stock Plan and Form of Agreement
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, a
Professional Corporation.
23.1 Consent of Independent Public Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-5).
</TABLE>
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(1) Incorporated by reference to the Company's Report on Form 14A filed on
November 26, 1997.
Item 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of
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<PAGE>
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant
to section 15(d) of the Exchange Act) that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(5) That, insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Cyberonics, Inc., certifies that it has reasonable grounds 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 this tenth day of April, 1998.
CYBERONICS, INC.
By: /s/ Robert P. Cummins
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President and Chief Executive Officer
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<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose
signature appears below constitutes and appoints, jointly and severally,
Reese S. Terry, Jr. and John K. Bakewell, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and all
capacities, to sign any amendments to this Registration Statement on Form S-8
(including post-effective amendments), and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-8 has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Reese S. Terry Chairman of the Board and April 10, 1998
- --------------------------- Executive Vice President
Reese S. Terry, Jr.
/s/ Robert P. Cummins President, Chief Executive April 10, 1998
- --------------------------- Officer and Director
Robert P. Cummins (Principal Executive Officer)
/s/ John K. Bakewell Vice President, Finance and April 10, 1998
- --------------------------- Administration and Chief
John K. Bakewell Financial Officer (Principal
Financial and Accounting
Officer)
/s/ Thomas A. Duerden Director April 10, 1998
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Thomas A. Duerden, Ph.D.
/s/ Stanley H. Appel Director April 10, 1998
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Stanley H. Appel, M.D.
/s/ Tony Coelho Director April 10, 1998
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Tony Coelho
/s/ Michael J. Strauss Director April 10, 1998
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Michael J. Strauss, M.D.
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
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<S> <C>
4.1(1) Cyberonics, Inc. 1997 Stock Plan and Form of Agreement
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, a
Professional Corporation
23.1 Consent of Independent Public Accountants
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (see page II-5)
</TABLE>
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(1) Incorporated by reference to the Company's Report on Form 14A filed on
November 26, 1997.
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________________
EXHIBITS
___________________________________
Registration Statement on Form S-8
Cyberonics, Inc.
April 10, 1998
<PAGE>
[WILSON SONSINI GOODRICH & ROSATI LETTERHEAD]
EXHIBIT 5.1
April 10, 1998
Cyberonics, Inc.
17448 Highway 3, Suite 100
Webster, Texas 77598-4135
RE: REGISTRATION STATEMENT ON FORM S-8
----------------------------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about April 10, 1998
(the "Registration Statement ") in connection with the registration under the
Securities Act of 1933, as amended, for an aggregate of 1,000,000 shares of
your Common Stock under the Cyberonics, Inc., 1997 Stock Plan (the "Plan").
Such shares of Common Stock are referred to herein as the "Shares", and the
Plan and compensation agreements are collectively referred to herein as the
"Plan". As your counsel in connection with this transaction, we have
examined the proceedings taken and are familiar with the proceedings proposed
to be taken by you in connection with the issuance and sale of the Shares
pursuant to the Plan.
It is our opinion that, when issued and sold in the manner described in
the Plan and pursuant to the agreements which accompany each grant under the
Plan, the Shares will be legally and validly issued, fully-paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in
the Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/S/ WILSON SONSINI GOODRICH & ROSATI
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 pertaining to the
1997 Stock Plan of Cyberonics, Inc. of our report dated August 7, 1997,
included in Cyberonics, Inc.'s Form 10-K for the year ended June 30, 1997 and
to all references to our Firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Houston, Texas
April 10, 1998
