exv10w43



 





Exhibit 10.43




RELEASE AGREEMENT




     This
Release Agreement (“Agreement”) is made and entered into
this 27th day of December,
2006, by and between Cyberonics, Inc., a Delaware corporation, (“Company”) and Shawn P. Lunney, an
individual residing in Texas (“Optionee”).



     Whereas, Optionee was employed by the Company and during such employment entered into
agreement(s) dated November 1, 1996 with the Company granting options to Optionee , as amended from
time to time (singularly or collectively, the “Option Agreement(s)”); and



     Whereas, under the Option Agreement(s) Optionee had a limited period of time to exercise
outstanding, vested options under the Option Agreement(s) (singularly or collectively, the
“Options”) which has previously been extended until December 31, 2006; and



     Whereas, the Options are currently unexercisable because an exercise of such options would
violate applicable securities laws; and



     Whereas, the Company’s Board of Directors has authorized the Company to further extend the
period for Optionee’s exercise of the Options to thirty (30) days after the exercise of such
Options 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 Company agrees to execute amendments to the Option Agreement(s) extending the period
for Optionee’s exercise of the Options to thirty (30) days from the date on which the exercise of
such Options would no longer violate applicable securities laws, all as set forth in the form of
agreement(s) attached hereto as Exhibit(s) A.



     2. For and in consideration of the Company’s agreement in Paragraph 1, but if and only if the
Company removes all restrictions to Optionee’s exercise of the Options on or about the date that
the exercise of such Options would no longer violate applicable securities laws, Optionee hereby
releases, remises, acquits, satisfies, and forever discharges the Company and its directors,
officers, employees, shareholders, counsel and agents acting in their capacity as employees or
representatives of the Company from all, and all manner of, actions, disputes, causes of action,
suits, debts, accounts, bills, interest, costs, agreements, judgments, executions, claims,
counter-claims, cross claims, liabilities, losses, obligations and demands whatsoever, in law or in
equity, at common law, statutory or otherwise, whether now existing or hereafter arising, known and
unknown, that may arise or may have arisen, related in any way to the Option Agreement(s). This
release shall be binding on the heirs, successors, and assigns of Optionee.



     3. This Agreement shall be construed and enforced in accordance with and governed by the laws
of the State of Texas, without regard to principles of conflict of law otherwise applicable to such
determination.



 









 





     4. This Agreement contains the entire agreement relating to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations, and discussion, oral or written,
related to such subject matter. There are no warranties, representations, assurances, agreements,
arrangements, or understandings, oral or written, relating to the subject matter that are not fully
expressed and provided for herein, and the parties shall not be bound by or liable for any alleged
statement, assurance, warranty, representation, agreement, or understanding not so set forth.



     5. This Agreement may be executed in multiple counterparts, each of which shall be deemed an
original, fully enforceable counterpart for all purposes hereof, but all of which shall be
constitute one and the same instrument.



     IN WITNESS WHEREOF, the undersigned parties have executed this Agreement in one or more
counterparts.



	 	 	 	 	 	 	 
	OPTIONEE

	 	 	 	 	 	CYBERONICS, INC.
	 
	 	 	 	 	 	 
	/s/
Shawn P. Lunney

	 	 	 	By:	 	/s/ John A. Riccardi
	 

	 	 	 	 	 	 
	Shawn P. Lunney

	 	 	 	 	 	John A. Riccardi
	 

	 	 	 	 	 	Vice President, Finance






Page 2









 






EXHIBIT A




Amendment to Stock Option Agreement and Notice




     This Amendment to Stock Option Agreement (the “Amendment”) is made on the ______ day of
December, 2006 by and between Cyberonics, Inc., a Delaware corporation (the “Company”) and Shawn P.
Lunney, 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

	 	 	 	 	 	CYBERONICS, INC.
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	Shawn P. Lunney

	 	 	 	 	 	John A. Riccardi
	 

	 	 	 	 	 	Vice President, Finance