As filed with the Securities and Exchange Commission on November 19, 2009

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

______________________

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

______________________

CYBERONICS, INC.

(Exact name of registrant as specified in its charter)

DELAWARE	76-0236465
(State or other jurisdiction of incorporation)	(IRS Employer Identification No.)

100 Cyberonics Blvd.

Houston, Texas 77058

(Address of principal executive offices, including zip code)

______________________

Cyberonics, Inc. 2009 Stock Plan

(Full title of the plan)

David S. Wise

Vice President, General Counsel, Human Resources & Secretary

100 Cyberonics Blvd.

Houston, Texas 77058

(Name and address of agent for service)

(281) 228-7200

(Telephone number, including area code, of agent for service)

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer	¨	Accelerated filer	þ
Non-accelerated filer	¨	Smaller reporting company	¨
(Do not check if a smaller reporting company)

CALCULATION OF REGISTRATION FEE

Title of securities to be registered	Amount to be registered (1)	Proposed maximum offering price per share (2)	Proposed maximum aggregate offering price (2)	Amount of registration fee
Common Stock, $0.01 par value	2,100,000 shares	$15.03	$31,563,000	$1,761.22

(1)   This registration statement shall also cover any additional shares of Common Stock which become issuable under the Cyberonics, Inc. 2009 Stock Plan being registered pursuant to this registration statement by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the registrant’s outstanding shares of Common Stock.

(2)   Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) and Rule 457(c) under the Securities Act of 1933.  The price per share and aggregate offering prices for the shares registered hereby are calculated on the basis of $15.03, which is the average of the high and low prices reported on the Nasdaq Global Market on November 13, 2009.

PART I

INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS

The documents containing the information specified in Part I of Form S-8 will be sent or given to participants as specified by Rule 428(b)(1) promulgated under the Securities Act of 1933 (the “Securities Act”).  Such documents need not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424.  These documents and the documents incorporated herein by reference pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act (such documents collectively, the “Prospectus”).

Explanatory Note

This Registration Statement on Form S-8 is being filed for the purpose of registering 2,100,000 shares of common stock, par value $0.01 per share (the “Common Stock”) of Cyberonics, Inc. (the “Company”) to be issued pursuant to the Company’s 2009 Stock Plan (the “Plan”).  On August 4, 2009, the Company’s Board of Directors approved the Plan, subject to stockholder approval.  Stockholder approval of the Plan was received at the Company’s Annual Meeting of Stockholders held on September 24, 2009.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.                      Incorporation of Documents by Reference

The following documents that we filed (File No. 000-19806) with the Commission are incorporated by reference and made a part of this registration statement:

·   our Annual Report on Form 10-K for the year ended April 24, 2009;

·   our Quarterly Report on Form 10-Q for the thirteen weeks ended July 24, 2009, filed on August 24, 2009;

·   our Quarterly Report on Form 10-Q for the thirteen weeks ended October 23, 2009, filed on November 19, 2009;

·   our Current Reports on Form 8-K (excluding any information furnished under Items 2.02 or 7.01 thereof) filed with the Commission on June 3, 2009, June 12, 2009, June 24, 2009, September 29, 2009 and November 18, 2009; and

·   the description of our common stock contained in our registration statement on Form 8-A dated February 10, 1993, including any amendment to that form that we may have filed in the past, or may file in the future, for the purpose of updating the description of our common stock.

All documents we file pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) (excluding any information furnished under Items 2.02 or 7.01 on any Current Report on Form 8-K) subsequent to the effective date of this Registration Statement, and prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered hereby have been sold or deregistering all securities then remaining unsold, will be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.  Any statement contained herein or in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.  Any such statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement, except as so modified or superseded.

Item 4.                      Description of Securities

Not applicable.

Item 5.                      Interests of Named Experts and Counsel

Not applicable.

Item 6.                      Indemnification of Directors and Officers

Article VIII of Cyberonics’ Certificate of Incorporation, a copy of which is filed as Exhibit 4.1, provides that the Company’s directors shall be indemnified to the fullest extent permitted by the Delaware General Corporation Law (the “DGCL”).

Article VI of the Company’s Amended and Restated Bylaws, a copy of which is filed as Exhibit 4.2, provides that the Company shall indemnify any person (an “indemnitee”) who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, by or in the right of the Company, by reason of the fact that such person is or was an officer or director of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, to the fullest extent permitted by the DGCL.  In addition, Article VI also provides for advancement to an indemnitee of expenses (including attorneys’ fees) incurred in defending the proceeding in advance of its final disposition, subject to the delivery of any required undertaking to repay the advancement in the event that the indemnitee is ultimately found not entitled to such indemnification.

Section 145 of the DGCL authorizes, inter alia, a corporation to indemnify any person (“indemnitee”) who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, by or in the right of the corporation, by reason of the fact that such person is or was an officer or director of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. A Delaware corporation may indemnify past or present officers and directors of such corporation or of another corporation or other enterprise at the former corporation’s request, in an action by or in the right of the corporation to procure a judgment in its favor under the same conditions, except that no indemnification is permitted without judicial approval if such person is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in defense of any action referred to above, or in defense of any claim, issue or matter therein, the corporation must indemnify him against the expenses (including attorney’s fees) which he actually and reasonably incurred in connection therewith. Section 145 further provides that any indemnification shall be made by the corporation only as authorized in each specific case upon a determination by the (i) stockholders, (ii) board of directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding or (iii) independent counsel if a quorum of disinterested directors so directs.  Section 145 provides that indemnification pursuant to its provisions is not exclusive of other rights of indemnification to which a person may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.

Section 145 of the DGCL also empowers Cyberonics to purchase and maintain insurance on behalf of any person who is or was an officer or director of Cyberonics against liability asserted against or incurred by him in any such capacity, whether or not Cyberonics would have the power to indemnify such officer or director against such liability under the provisions of Section 145. Cyberonics intends to purchase and maintain a directors’ and officers’ liability policy for such purposes.

Item 7.                      Exemption from Registration Claimed

Not applicable.

Item 8.                      Exhibits

Unless otherwise indicated below as being incorporated by reference to another filing of ours with the Commission, each of the following exhibits is filed herewith:

4.1 Amended and Restated Certificate of Incorporation of Cyberonics, Inc. (incorporated by reference to Exhibit 3.1 to Cyberonics, Inc.’s Registration Statement on Form S-3 (File No. 333-56022) filed on February 21, 2001).

4.2 Cyberonics, Inc. Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2(i) to Cyberonics, Inc.’s Current Report on Form 8-K (File No. 000-19806) filed on October 26, 2007).

4.3 Registration Rights Agreement, dated September 27, 2005, between Cyberonics, Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Initial Purchaser (incorporated by reference to Exhibit 10.2 to Cyberonics, Inc.’s Current Report on Form 8-K (File No. 000-19806) filed on October 3, 2005).

4.4 Cyberonics, Inc. 2009 Stock Plan (incorporated by reference to Annex A to Cyberonics, Inc.’s Proxy Statement on Schedule 14A (File No. 000-19806) filed on August 6, 2009).

5.1* Opinion of Vinson & Elkins L.L.P.

23.1* Consent of Independent Registered Public Accounting Firm KPMG LLP.

23.2* Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1).

24.1* Powers of Attorney (included on the signature page to this Registration Statement).

______________

*      Filed herewith.

Item 9.                      Undertakings

The undersigned registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

(a) To include any prospectus required by Section 10(a)(3) of the Securities Act;

(b) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement.  Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

(c) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

provided, however, that paragraphs (1)(a) and (1)(b) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) that are incorporated by reference in this Registration Statement.

(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(4) That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(5) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.  In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on the 19th day of November, 2009.

CYBERONICS, INC.

By:/s/ Gregory H. Browne

Name:  Gregory H. Browne

Title:    Vice President, Finance and Chief

Financial Officer

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Daniel J. Moore and Gregory H. Browne, jointly and severally, his true and lawful attorney or attorneys-in-fact and agents, with full power to act with or without the others and with full power of substitution and resubstitution, to execute in his name, place and stead, in any and all capacities, any or all amendments (including pre-effective and post-effective amendments) to this registration statement and any registration statement for the same offering filed pursuant to Rule 462 under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents and each of them, full power and authority to do and perform in the name of on behalf of the undersigned, in any and all capacities, each and every act and thing necessary or desirable to be done in and about the premises, to all intents and purposes and as fully as they might or could do in person, hereby ratifying, approving and confirming all that said attorneys-in-fact and agents or their substitutes may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on behalf of the registration and in the capacities and on the 19th day of November, 2009.

Signature	Title
/s/ HUGH M. MORRISON Hugh M. Morrison	Chairman of the Board of Directors
/s/ DANIEL J. MOORE Daniel J. Moore	Director, President and Chief Executive Officer (Principal Executive Officer)
/s/ GREGORY H. BROWNE Gregory H. Browne	Vice President, Finance and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
/s/ GUY C. JACKSON Guy C. Jackson	Director
/s/ JOSEPH E. LAPTEWICZ Joseph E. Laptewicz	Director
/s/ ALFRED J. NOVAK Alfred J. Novak	Director
/s/ ARTHUR L. ROSENTHAL, PH.D. Arthur L. Rosenthal, Ph.D.	Director
/s/ REESE S. TERRY, JR. Reese S. Terry, Jr.	Director

INDEX TO EXHIBITS

4.1 Amended and Restated Certificate of Incorporation of Cyberonics, Inc. (incorporated by reference to Exhibit 3.1 to Cyberonics, Inc.’s Registration Statement on Form S-3 (File No. 333-56022) filed on February 21, 2001).

4.2 Cyberonics, Inc. Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2(i) to Cyberonics, Inc.’s Current Report on Form 8-K (File No. 000-19806) filed on October 26, 2007).

4.3 Registration Rights Agreement, dated September 27, 2005, between Cyberonics, Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Initial Purchaser (incorporated by reference to Exhibit 10.2 to Cyberonics, Inc.’s Current Report on Form 8-K (File No. 000-19806) filed on October 3, 2005).

4.4 Cyberonics, Inc. 2009 Stock Plan (incorporated by reference to Annex A to Cyberonics, Inc.’s Proxy Statement on Schedule 14A (File No. 000-19806) filed on August 6, 2009).

5.1* Opinion of Vinson & Elkins L.L.P.

23.1* Consent of Independent Registered Public Accounting Firm KPMG LLP.

23.2* Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1).

24.1* Powers of Attorney (included on the signature page to this Registration Statement).

______________

*      Filed herewith.

Exhibit 5.1

OPINION AND CONSENT OF LEGAL COUNSEL

November 19, 2009

Cyberonics, Inc.

100 Cyberonics Boulevard

Houston, Texas 77058

RE: Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as counsel for Cyberonics, Inc., a Delaware corporation (the “Company”), with respect to certain legal matters in connection with the registration by the Company under the Securities Act of 1933 of the offer and sale of up to 2,100,000 shares of common stock, par value $0.01 per share (the “Shares”), pursuant to the Cyberonics, Inc. 2009 Stock Plan (the “Plan”).

In connection with the opinion expressed herein, we have examined, among other things, (i) the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, (ii) the records of corporate proceedings that have occurred prior to the date hereof with respect to the Shares, and (iii) the registration statement on Form S-8 filed in connection with the Shares (the “Registration Statement”).  We have also reviewed such questions of law as we have deemed necessary or appropriate.  As to matters of fact relevant to the opinion expressed herein, and as to factual matters arising in connection with our examination of corporate documents, records and other documents and writings, we relied upon certificates and other communications of corporate officers of the Company, without further investigation as to the facts set forth therein.

Based upon the foregoing, we are of the opinion that (i) the issuance of the Shares has been duly authorized by the Company and (ii) when the Shares have been issued in accordance with the provisions of the Plan, the Shares will be validly issued, fully paid and nonassessable.

The foregoing opinions are limited in all respects to the General Corporation Law of the State of Delaware (including the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting these laws) and the federal laws of the United States of America, and we do not express any opinions as to the laws of any other jurisdiction.

We hereby consent to the statements with respect to us under the heading “Legal Matters” in the prospectus incorporated by reference in the Registration Statement and to the filing of this opinion as an exhibit to the Registration Statement, but we do not thereby admit that we are within the class of persons whose consent is required under the provisions of the Securities Act of 1933 or the rules and regulations of the Securities and Exchange Commission issued thereunder.

Very truly yours,

/s/ Vinson & Elkins, L.L.P.

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

The Board of Directors

Cyberonics, Inc.

We consent to the use of our reports dated June 18, 2009, with respect to the consolidated balance sheets of Cyberonics, Inc. as of April 24, 2009 and April 25, 2008, and the related consolidated statements of operations, stockholders’ equity (deficit) and comprehensive income (loss), and cash flows for the 52 weeks ended April 24, 2009, April 25, 2008, and April 27, 2007, and the effectiveness of internal control over financial reporting as of April 24, 2009, incorporated herein by reference.

/s/ KPMG LLP

Houston, Texas

November 19, 2009