Amendment to Stock Option Agreement and Notice
Exhibit 10.40
Amendment to Stock Option Agreement and Notice
This
Amendment to Stock Option Agreement (the “Amendment”) is
made on the
27th day of
December, 2006 by and between Cyberonics, Inc., a Delaware corporation (the “Company”) and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, an individual residing in Texas (“Optionee”).
Whereas, the Company and Optionee entered into a Stock Option Agreement having a grant date of
November 1, 1996, which agreement includes a Notice of Stock Option Grant (the “Agreement”); and
Whereas, the Company and Optionee previously agreed to amend the Agreement to extend the
period for Optionee to exercise the option granted under the Agreement (the “Option”) to December
31, 2006;
Whereas, the Option is currently unexercisable because an exercise of such right would violate
applicable securities laws; and
Whereas, the Company’s Board of Directors has authorized the Company to extend the period for
Optionee’s exercise of the Option to thirty (30) days after the exercise of such Option would no
longer violate applicable securities laws, all on the conditions set forth in this Agreement;
Now, Therefore, for a good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. The paragraph entitled, “Termination Period,” under “Notice of Stock Option Grant” is
deleted in its entirety, and the following is substituted therefor:
“The Option may be exercised within thirty (30) days after the date on which the exercise of
such Option would no longer violate applicable securities laws.”
2. This Amendment supersedes all prior agreements, amendments, understandings, negotiations,
and discussion, oral or written, related to such subject matter.
3. Except as expressly amended herein, the terms of the Agreement remain unchanged.
OPTIONEE
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CYBERONICS, INC. | |||||
/s/
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By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||
| Vice President, Finance |