EXECUTIVE RESTRICTED STOCK AGREEMENT
Exhibit 10.66
EXECUTIVE RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (this “Agreement”) is made effective as of June 18, 2007
(the “Grant Date”), between CYBERONICS, INC., a Delaware corporation (the “Company”), and Xxxxxx
Xxxxxxx Xxxxx (the “Executive”).
1. Award. Pursuant to the Company’s New Employee Equity Inducement Plan (the
“Plan”), as of the Grant Date, 100,000 shares of the Company’s common stock (the “Restricted
Shares”) 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 stock dividends and other changes
in capitalization on a Restricted Share shall be subject to the same Forfeiture Restrictions (as
hereinafter defined) as are applicable to such Restricted Share.
2. Restricted Shares. The Executive hereby accepts the Restricted Shares when issued
and agrees with respect thereto as follows:
(a) 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.
(b) Vesting/Lapse of Forfeiture Restrictions. Until the Restricted Shares are
fully vested or forfeited, on each of the first four anniversaries of May 1, 2007, so long
as the Executive continues in a service relationship with the Company (as provided in
Section 5) on such anniversary date, 25,000 of the Restricted Shares shall vest and the
Forfeiture Restrictions shall lapse on such vested shares, subject to earlier vesting as
provided in the Employment Agreement between the Company and Executive dated April 26, 2007
(“Employment Agreement”), the related terms of which are hereby incorporated herein by
reference.
(c) 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. 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.
(d) 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.
3. 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. The Executive may satisfy the minimum withholding tax obligations of the
Company by electing to have the Company withhold from the Shares to be issued upon the lapse of the
Forfeiture Restrictions on the Restricted Shares that number of Shares having a Fair Market Value
that approximates but is less than the minimum amount required to be withheld. In the event that
the Executive fails to reimburse the Company for amounts the Company is required to pay as
withholding taxes on behalf of the Executive, the Company has the right to withhold from amounts
otherwise due to the Executive, and the Executive hereby authorizes such withholding, an amount
equal to the withholding taxes paid by the Company by reason of compensation income to the
Executive resulting under this Agreement.
4. 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
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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.
5. Service Relationship. For purposes of this Agreement, the Executive shall be
considered to be in service to the Company as long as the Executive continues to be employed
pursuant to the terms of the Employment Agreement. Nothing in the adoption of the Plan, or 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, except as provided in the
Employment Agreement.
6. 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 registered or certified mail 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 hand-delivered to the Company’s General Counsel or if sent by registered
or certified mail to the Company at its principal executive offices.
7. Amendment. This Agreement may not be modified in any respect by any verbal
statement, representation or agreement made by the Executive or by any Executive, officer, 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.
8. 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.
9. Controlling Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Texas.
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: | /s/ Xxxxx X. Xxxx | |||
| Xxxxx X. Xxxx | ||||
| Vice President & General Counsel | ||||
| XXXXXX XXXXXXX XXXXX |
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| /s/ Xxxxxx X. Xxxxx | ||||
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