FORM OF EXECUTIVE RESTRICTED STOCK AGREEMENT
EXHIBIT 10.30
FORM
OF
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THIS RESTRICTED STOCK
AGREEMENT (this “Agreement”) is made effective as of [DATE] (the “Grant
Date”), between CYBERONICS, INC., a
Delaware corporation (the “Company”), and [NAME] (the
“Executive”).
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1.
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Award. Pursuant
to the CYBERONICS, INC.
NEW EMPLOYEE EQUITY INCENTIVE PLAN (the “Plan”), as of
the Grant Date [NUMBER] shares (the
“Restricted Shares”) of the Company’s common stock shall be issued as
hereinafter provided in the Executive’s name subject to certain
restrictions thereon. The Executive hereby acknowledges receipt
of a copy of the Plan and the Prospectus relating thereto pursuant to the
Securities Act of 1933, and agrees that this award of Restricted Shares
shall be subject to all of the terms and provisions of the Plan, including
future amendments thereto, if any, pursuant to the terms
thereof. All dividends and other distributions on a Restricted
Share shall be subject to the same Forfeiture Restrictions (as hereinafter
defined) as are applicable to such Restricted Share.
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2.
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Restricted
Shares. The Executive hereby accepts the Restricted
Shares when issued and agrees with respect thereto as
follows:
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(a)
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Forfeiture
Restrictions. The Restricted Shares may not be sold,
assigned, pledged, exchanged, hypothecated or otherwise transferred,
encumbered or disposed of to the extent then subject to the Forfeiture
Restrictions, and in the event of termination of the Executive’s service
relationship with the Company (as provided in Section 5) for any reason
other than as provided in Section 2(b), the Executive shall, for no
consideration, forfeit to the Company all Restricted Shares then subject
to the Forfeiture Restrictions. The prohibition against
transfer and the Executive’s obligation to forfeit and surrender the
Restricted Shares to the Company upon the Executive’s termination of
service are herein referred to as the “Forfeiture
Restrictions.” The Forfeiture Restrictions shall be binding
upon and enforceable against any transferee of Restricted
Shares.
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(b)
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Vesting/Lapse
of Forfeiture Restrictions. Until the Restricted Shares
are fully vested or forfeited, on each anniversary of the Grant Date, so
long as the Executive continues in a service relationship with the Company
(as provided in Section 5) on such anniversary date and subject to the
satisfaction of the tax liability under Section 3, 25% of the Restricted
Shares shall vest and the Forfeiture Restrictions shall lapse on such
vested shares. The number of shares that vest as of each
anniversary date will be rounded down to the nearest whole share, with any
remaining shares vesting on the final
installment. Notwithstanding the foregoing vesting schedule,
the Forfeiture Restrictions shall lapse in full as to all of the
Restricted Shares on the earlier of (i) a Change of Control (as defined in
the Plan) or (ii) the termination of the Executive’s service relationship
with the Company due to the Executive’s death.
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(c)
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Certificates. A
certificate evidencing the Restricted Shares shall be issued by the
Company in the Executive’s name, pursuant to which the Executive shall
have all of the rights of a shareholder of the Company with respect to the
Restricted Shares, including, without limitation, voting rights and the
right to receive dividends (provided, however, that dividends paid in
shares of the Company’s stock shall be subject to the Forfeiture
Restrictions). The Executive may not sell, transfer, pledge,
exchange, hypothecate or otherwise dispose of the stock until the
Forfeiture Restrictions with respect to such shares have expired, and a
breach of the terms of this Agreement shall cause a forfeiture of all then
remaining Restricted Shares. The certificate shall contain an
appropriate endorsement reflecting the Forfeiture
Restrictions. The certificate shall be delivered upon issuance
to the Secretary of the Company or to such other depository as may be
designated by the Committee as a depository for safekeeping until the
forfeiture of such Restricted Shares occurs or the Forfeiture Restrictions
lapse pursuant to the terms of the Plan and this award. On the
date of this Agreement, the Executive shall, if required by the Committee,
deliver to the Company a stock power, endorsed in blank, relating to the
Restricted Shares. Upon the lapse of the Forfeiture
Restrictions without forfeiture of the Restricted Shares, the Company
shall cause a new certificate or certificates to be issued without legend
(except for any legend required pursuant to applicable securities laws or
any other agreement to which the Executive is a party) in the name of the
Executive in exchange for the certificate evidencing the Restricted
Shares.
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(d)
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Corporate
Acts. The existence of the Restricted Shares shall not
affect in any way the right or power of the Board of Directors of the
Company or the shareholders of the Company to make or authorize any
adjustment, recapitalization, reorganization or other change in the
Company’s capital structure or its business, any merger or consolidation
of the Company, any issue of debt or equity securities, the dissolution or
liquidation of the Company or any sale, lease, exchange or other
disposition of all or any part of its assets or business or any other
corporate act or proceeding. The prohibitions of Section 2(a)
hereof shall not apply to the transfer of Restricted Shares pursuant to a
plan of reorganization of the Company, but the stock, securities or other
property received in exchange therefor shall also become subject to the
Forfeiture Restrictions and provisions governing the lapsing of such
Forfeiture Restrictions applicable to the original Restricted Shares for
all purposes of this Agreement and the certificates representing such
stock, securities or other property shall be legended to show such
restrictions.
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3.
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Withholding
of Tax. To the extent that the receipt of the Restricted
Shares or the lapse of any Forfeiture Restrictions results in compensation
income to the Executive for federal or state income tax purposes, the
Executive is responsible for taxes due from Executive on such compensation
income. Executive agrees to remit estimated taxes to the Company prior to
and as a condition of the receipt of the Restricted Shares or the lapse of
any Forfeiture Rights becoming effective. In the event that the
estimated taxes are insufficient to satisfy the taxes actually due from
Executive, Executive agrees to (1) remit funds to satisfy such taxes; or
(2) specifically authorize the Company in writing to withhold from amounts
otherwise due to the Executive. To the maximum extent permitted
by applicable law, Executive hereby authorizes such
withholding.
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Status of
Stock. The Executive agrees that the Restricted
Shares issued under this Agreement will not be sold or otherwise disposed
of in any manner which would constitute a violation of any applicable
federal or state securities laws. The Executive also agrees
that (i) the certificates representing the Restricted Shares
may bear such legend or legends as the Committee deems appropriate in
order to reflect the Forfeiture Restrictions and to assure compliance with
applicable securities laws, (ii) the Company may refuse to register the
transfer of the Restricted Shares on the stock transfer records of the
Company if such proposed transfer would constitute a violation of the
Forfeiture Restrictions or, in the opinion of counsel satisfactory to the
Company, of any applicable securities law, and (iii) the Company may give
related instructions to its transfer agent, if any, to stop registration
of the transfer of the Restricted Shares.
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5.
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Service
Relationship. For purposes of this Agreement, the
Executive shall be considered to be in service to the Company as long as
the Executive remains an Employee, an Officer, a Consultant or a Director
(as those terms are defined in the Plan). Nothing in the
adoption of the Plan, nor the award of the Restricted Shares thereunder
pursuant to this Agreement, shall confer upon the Executive the right to
continued service by or with the Company.
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6.
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Notices. Any
notices or other communications provided for in this Agreement shall be
sufficient if in writing. In the case of the Executive, such
notices or communications shall be effectively delivered if hand delivered
to the Executive at his principal place of employment or if sent by
overnight courier, with confirmation, to the Executive at the last address
the Executive has filed with the Company. In the case of the
Company, such notices or communications shall be effectively delivered if
sent by overnight courier, with confirmation, to the Company at its
principal executive offices.
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7.
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Amendment. This
Agreement may not be modified in any respect by any verbal statement,
representation or agreement made by the Executive or by any employee,
officer, director, or representative of the Company or by any written
agreement unless signed by the Executive and by an officer of the Company
who is expressly authorized by the Company to execute such
document.
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8.
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Binding
Effect. This Agreement shall be binding upon and inure
to the benefit of any successors to the Company and all persons lawfully
claiming under the Executive.
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9.
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Controlling
Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Texas.
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IN WITNESS WHEREOF, the
Company has caused this Agreement to be duly executed by an officer
thereunto duly authorized, and the Executive has executed this Agreement,
all effective as of the Grant Date.
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CYBERONICS,
INC.
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By:
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Name:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ III
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Title:
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Vice
President, Human Resources
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EXECUTIVE
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[NAME]
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EXHIBIT TO FORM OF EXECUTIVE RESTRICTED STOCK
AGREEMENT
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Date
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Name
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Number of Shares
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July
9, 2007
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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7,500
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August
1, 2007
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▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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12,500
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