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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 30, 2000.
REGISTRATION STATEMENT NO. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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 OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
16511 SPACE CENTER BLVD., SUITE 600
HOUSTON, TEXAS 77058
(281) 228-7200
(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES)
CYBERONICS, INC. AMENDED AND RESTATED 1996 STOCK OPTION PLAN
STAND-ALONE STOCK OPTION AGREEMENT FOR RICHARD P. KUNTZ
STAND-ALONE STOCK OPTION AGREEMENT FOR LEONARD G. MILKIE
(FULL TITLE OF THE PLANS)
PAMELA B. WESTBROOK
VICE PRESIDENT, FINANCE & ADMINISTRATION AND CHIEF FINANCIAL OFFICER
CYBERONICS, INC.
16511 SPACE CENTER BLVD., SUITE 600
HOUSTON, TEXAS 77058
(281) 228-7200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPY TO:
DAVID P. OELMAN, ESQ.
ANDREWS & KURTH L.L.P.
600 TRAVIS, SUITE 4200
HOUSTON, TEXAS 77002
(713) 220-4045
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PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TO BE OFFERING PRICE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED(1)(2) PER SHARE(3) PRICE(3) FEE
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<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share
("Common Stock") 1,100,000 Units $13.75 $15,121,563 $3,993
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(1) The number of shares of Common Stock registered hereby consists of 850,000
additional shares authorized to be issued under the Amended and Restated
1996 Stock Option Plan (the "Plan") and 150,000 and 100,000 additional
shares authorized to be issued to Richard P. Kuntz and Leonard G. Milke,
respectively, under two separate stock option agreements. An aggregate of
3,750,000 shares were previously registered by the Company under
Registration Statements on Form S-8 (SEC File No. 333-91303, SEC File No.
333-19785, SEC File No. 333-33725, SEC File No. 333-66687 and SEC File No.
333-77361) filed with the Securities and Exchange Commission on November
19, 1999, January 15, 1997, August 15, 1997, November 3, 1998 and April 29,
1999, respectively. 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.
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(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. With respect to 85,000 shares subject to outstanding
options to purchase Common Stock under the Plan, the proposed maximum
offering price per share is equal to the weighed average exercise price of
$18.00 per share pursuant to Rule 457(h) under the Securities Act. The
proposed maximum offering price for the 250,000 shares of Common Stock
authorized to be issued upon exercise by Messrs. Kuntz and Milke was
calculated under Rule 457(h) on the basis of respective exercise prices of
$15.125 for Mr. Kuntz's shares and $17.125 for Mr. Milke's shares. With
respect to 765,000 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) under the Securities Act whereby the plan
share price is the average between the ask and bid price reported in the
Nasdaq National Market on June 29, 2000, which average was $12.56. 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) under the Securities Act.
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). Such documents need
not be filed with the Securities and Exchange Commission (the "Commission")
either as a part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents and the documents incorporated
herein by reference pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act (the "Prospectus").
PART II
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose of
registering an additional 850,000 shares of the Registrant's Common Stock, par
value $0.01 per share, (the "Common Stock") to be issued pursuant to the
Registrant's Amended and Restated 1996 Stock Option Plan (the "Plan"), an
additional 150,0000 shares of Common Stock authorized to be issued upon the
exercise of options granted pursuant to a stand-alone stock option agreement
with Mr. Richard P. Kuntz and an additional 100,000 shares of Common Stock
authorized to be issued upon the exercise of options granted pursuant to a
stand-alone stock option agreement with Mr. Leonard G. Milke. The Registration
Statements on Form S-8 previously filed with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Act of 1933, as amended
(the "Securities Act") relating to the Plan (SEC File No. 333-91303, SEC File
No. 333-19785, SEC File No. 333-33725, SEC File No. 333-66687 and SEC File No.
333-77361) are incorporated herein by reference.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference into this Registration Statement
the following documents and information heretofore filed with the Commission:
1. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2000.
2. The Company's Amended Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 1999.
3. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1999.
4. The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1999.
5. The description of Company'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,
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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 the Company pursuant to Sections 13(a), 13(c), 14 or 15(d)
f the Exchange Act, prior to the filing of a post-effective amendment that
indicates that all securities offered have been sold or that 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
such documents were filed.
ITEM 4. DESCRIPTION OF SECURITIES.
The information required by Item 4 is not applicable to this Registration
Statement since the class of securities to be offered is registered under
Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
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 some circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act. The
Company has included in the Certificate of Incorporation a provision providing
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 in those
circumstances under 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.
The information required by Item 7 is not applicable to this Registration
Statement.
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ITEM 8. EXHIBITS.
Exhibit
Number Description
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4.1 Cyberonics, Inc. Amended and Restated 1996 Stock Option Plan.
4.2 Stand-Alone Stock Option Agreement with Richard P. Kuntz.
4.3 Stand-Alone Stock Option Agreement with Leonard G. Milke.
5.1 Opinion of Andrews & Kurth L.L.P. as to the validity of the
securities being registered.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Andrews & Kurth L.L.P. (included in Exhibit 5.1).
24.1 Power of Attorney (set forth on the signature page contained in
Part II of this Registration Statement).
ITEM 9. UNDERTAKINGS.
(a) 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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement:
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the 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.
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(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, 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 this 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 6 of this Registration
Statement, or otherwise, the registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities 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 Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant 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 June 30, 2000.
CYBERONICS, INC.
(Registrant)
By: /s/ Robert P. Cummins
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Robert P. Cummins
President and
Chief Executive Officer
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 Pamela B. Westbrook 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
or her 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.
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SIGNATURE TITLE DATE
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/s/ Reese S. Terry, Jr. Chairman of the Board and June 30, 2000
--------------------------- Executive Vice President
Reese S. Terry, Jr.
/s/ Robert Cummins President, Chief Executive Officer June 30, 2000
--------------------------- and Director (Principal Executive Officer)
Robert P. Cummins
/s/ Pamela B. Westbrook Vice President, Finance and
--------------------------- Administration and Chief June 30, 2000
Pamela B. Westbrook Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Stanley H. Appel Director June 30, 2000
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Stanley H. Appel
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SIGNATURE TITLE DATE
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/s/ Anthony L. Coelho Director June 30, 2000
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Anthony L. Coelho
/s/ Thomas A. Duerden Director June 30, 2000
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Thomas A. Duerden
/s/ Michael J. Strauss Director June 30, 2000
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Michael J. Strauss
/s/ Alan J. Olsen Director June 30, 2000
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Alan J. Olsen
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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4.1 Cyberonics, Inc. Amended and Restated 1996 Stock Option Plan.
4.2 Stand-Alone Stock Option Agreement with Richard P. Kuntz.
4.3 Stand-Alone Stock Option Agreement with Leonard G. Milke.
5.1 Opinion of Andrews & Kurth L.L.P. as to the validity of the securities being registered.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Andrews & Kurth L.L.P. (included in Exhibit 5.1).
24.1 Power of Attorney (set forth on the signature page contained in Part II of this Registration Statement).
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