ex10-3.htm
EXHIBIT
10.3
FIRST
AMENDMENT TO THE
CYBERONICS,
INC. AMENDED AND RESTATED
NEW EMPLOYEE EQUITY INDUCEMENT
PLAN
WHEREAS, there is reserved to the Board
of Directors (“Board”) of Cyberonics, Inc. in Section 16 of the Cyberonics,
Inc. Amended and Restated New Employee Equity Inducement Plan (the “Plan”) the
right to amend the Plan, subject to certain restrictions set forth therein;
and
WHEREAS, the Board deems it advisable
to amend the Plan in the manner hereafter set forth;
NOW, THEREFORE, Section 2(m) of the
Plan is hereby amended effective as of August 19, 2008, to read as
follows:
(m) "Fair Market Value"
means, as of any date, the value of Common Stock determined as
follows:
(i) If the Common Stock is listed on
any established stock exchange or a national market system, its Fair Market
Value shall be the closing sales price for such stock (or the closing bid, if no
sales were reported) as quoted on such exchange or system on the day of
determination, or if such Common Stock was not traded on the day of
determination, the closing sales price for such stock for the last market
trading day prior to the day of determination, as reported in The Wall Street Journal or
such other source as the Administrator selects;
(ii) If the Common Stock is regularly
quoted by a recognized securities dealer but selling prices are not reported,
the Fair Market Value of a Share of Common Stock shall be the mean between the
high bid and low asked prices for the Common Stock on the day of determination,
or if such Common Stock was not traded on the day of determination, the mean
between the high bid and low asked prices for the Common Stock on the last
market trading day prior to the day of determination as reported in The Wall Street Journal or
such other source as the Administrator deems reliable; or
(iii) In the absence of an established
market for the Common Stock, the Fair Market Value shall be determined in good
faith by the Administrator.
Except as amended and modified hereby,
the Plan shall continue in full force and effect and the Plan and this amendment
shall be read, take and construed as one and the same
instrument.