AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 25, 2000
REGISTRATION NO. 333-93033
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ABIOMED, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 04-2743260
(STATE OR OTHER JURISDICTION OF INCORPORATION (I.R.S. EMPLOYER IDENTIFICATION NO.)
OR ORGANIZATION)
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22 CHERRY HILL DRIVE
DANVERS, MASSACHUSETTS 01923
(978) 777-5410
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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DR. DAVID M. LEDERMAN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ABIOMED, INC.
22 CHERRY HILL DRIVE
DANVERS, MASSACHUSETTS 01923
(978) 777-5410
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
PETER M. ROSENBLUM, ESQ. WILLIAM T. WHELAN, ESQ.
FOLEY, HOAG & ELIOT LLP MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
ONE POST OFFICE SQUARE ONE FINANCIAL CENTER
BOSTON, MASSACHUSETTS 02109 BOSTON, MASSACHUSETTS 02111
(617) 832-1000 (617) 542-6000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. / /
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If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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Part I of the Registration Statement has been intentionally omitted because
this Amendment No. 2 does not effect any changes to the Prospectus. The sole
purpose of this Amendment No. 2 is to file Exhibits 1.1 and 5.1.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
SEC Registration Fee........................................ $ 20,294
NASD Filing Fee............................................. 8,187
Nasdaq National Market Listing Fee.......................... 17,500
Transfer Agent and Registrant Fees.......................... 2,500*
Accounting Fees and Expenses................................ 50,000*
Legal Fees and Expenses..................................... 225,000*
Printing and Engraving...................................... 60,000*
Miscellaneous............................................... 116,519*
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TOTAL................................................... $500,000*
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* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
ABIOMED's certificate of incorporation provides that, to the fullest extent
permitted by Delaware law, no director of ABIOMED shall be personally liable to
ABIOMED or its stockholders for monetary damages for breach of fiduciary duty as
a director, notwithstanding any other provision of law. However, a director
shall be liable to the extent required by law (i) for any breach of the
director's duty of loyalty to ABIOMED or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) in respect of certain unlawful dividend payments or
stock redemptions or repurchases, or (iv) for any transaction from which the
director derived an improper personal benefit.
ABIOMED entered into indemnification agreements with each of its directors
and anticipates that it will enter into similar agreements with any future
director. Generally, these agreements attempt to provide the maximum protection
permitted by Delaware law with respect to indemnification. The indemnification
agreements provide that ABIOMED will pay certain amounts incurred by a director
in connection with any civil or criminal action or proceeding, specifically
including actions by or in the name of ABIOMED (derivative suits) where the
individual's involvement is by reason of the fact that he is or was a director
or officer. For directors, such amounts include, to the maximum extent permitted
by law, attorney's fees, judgments, civil or criminal fines, settlement amounts
and other expenses customarily incurred in connection with legal proceedings.
Under the indemnification agreements, a director will not receive
indemnification if the director is found not to have acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
ABIOMED. ABIOMED has also entered into similar agreements with certain of its
officers and top management personnel who are not also directors. The
indemnification agreements with officers are slightly more restrictive.
Generally, the indemnification agreements attempt to provide the maximum
protection permitted by Delaware law with respect to indemnification of
directors and officers.
The effect of these provisions would be to permit such indemnification by
ABIOMED for liabilities arising under the Securities Act of 1933, as amended.
Reference is hereby made to Section 8 of the Underwriting Agreement between
ABIOMED, the underwriters and Dr. David M. Lederman, filed as Exhibit 1.1 to
this registration statement, for a description of indemnification arrangements
between ABIOMED and the underwriters.
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ITEM 16. EXHIBITS
EXHIBIT
NUMBER
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1.1 Form of Underwriting Agreement**
3.1 Restated Certificate of Incorporation of ABIOMED,
Inc.--Filed as Exhibit 3.1 to Registration Statement No.
333-36657*
3.2 Amended and Restated Bylaws of ABIOMED, Inc.--Filed as
Exhibit 3.02 to the Company's Quarterly Report on Form 10-Q
for the period ended September 30, 1996*
3.3 Certificate of Designations of Series A Junior Participating
Preferred Stock--Filed as Exhibit 3.3 to Registration
Statement No. 333-36657*
4.1 Specimen Certificate of Common Stock--Filed as Exhibit 4.1
to Registration Statement No. 33-14861 on Form S-1*
4.2 Description of Capital Stock (contained in the Restated
Certificate of Incorporation of ABIOMED, Inc. filed as
Exhibit 3.1 and in the Certificate of Designations of Series
A Junior Participating Preferred Stock filed as Exhibit
3.3)*
4.3 Rights Agreement between ABIOMED, Inc. and BankBoston, N.A.,
as Rights Agent dated as of August 13, 1997 (including Form
of Right Certificate attached thereto as Exhibit A)--Filed
as Exhibit 4 to ABIOMED, Inc.'s Current Report on Form 8-K,
dated August 13, 1997*
5.1 Legal Opinion of Foley, Hoag & Eliot LLP**
23.1 Consent of Arthur Andersen LLP***
23.2 Consent of Foley, Hoag & Eliot LLP (included in Exhibit
5.1)**
24.1 Power of Attorney (contained on the signature page of this
registration statement)***
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*Not filed herewith. In accordance with Rule 411 promulgated pursuant to the
Securities Act of 1933, as amended, reference is made to the documents
previously filed with the Commission, which are incorporated by reference
herein.
**Filed herewith.
***Previously filed.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange 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
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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.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus 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.
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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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on
February 25, 2000.
ABIOMED, INC.
By: /s/ DAVID M. LEDERMAN
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Dr. David M. Lederman
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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Chief Executive Officer,
/s/ DAVID M. LEDERMAN President and Director
------------------------------------------- (Principal Executive February 25, 2000
David M. Lederman Officer)
Chief Financial Officer,
* Vice President--Finance
------------------------------------------- and Treasurer (Principal February 25, 2000
John F. Thero Financial and Accounting
Officer)
*
------------------------------------------- Director February 25, 2000
W. Gerald Austen
*
------------------------------------------- Director February 25, 2000
Paul Fireman
*
------------------------------------------- Director February 25, 2000
John F. O'Brien
*
------------------------------------------- Director February 25, 2000
Desmond H. O'Connell, Jr.
*
------------------------------------------- Director February 25, 2000
Henri A. Termeer
*By: /s/ DAVID M. LEDERMAN
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David M. Lederman
ATTORNEY-IN-FACT
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EXHIBIT INDEX
EXHIBIT
NUMBER
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1.1 Form of Underwriting Agreement**
3.1 Restated Certificate of Incorporation of ABIOMED,
Inc.--Filed as Exhibit 3.1 to Registration Statement No.
333-36657*
3.2 Amended and Restated Bylaws of ABIOMED, Inc.--Filed as
Exhibit 3.02 to the Company's Quarterly Report on Form 10-Q
for the period ended September 30, 1996*
3.3 Certificate of Designations of Series A Junior Participating
Preferred Stock--Filed as Exhibit 3.3 to Registration
Statement No. 333-36657*
4.1 Specimen Certificate of Common Stock--Filed as Exhibit 4.1
to Registration Statement No. 33-14861 on Form S-1*
4.2 Description of Capital Stock (contained in the Restated
Certificate of Incorporation of ABIOMED, Inc. filed as
Exhibit 3.1 and in the Certificate of Designations of Series
A Junior Participating Preferred Stock filed as Exhibit
3.3)*
4.3 Rights Agreement between ABIOMED, Inc. and BankBoston, N.A.,
as Rights Agent dated as of August 13, 1997 (including Form
of Right Certificate attached thereto as Exhibit A)--Filed
as Exhibit 4 to ABIOMED, Inc.'s Current Report on Form 8-K,
dated August 13, 1997*
5.1 Legal Opinion of Foley, Hoag & Eliot LLP**
23.1 Consent of Arthur Andersen LLP***
23.2 Consent of Foley, Hoag & Eliot LLP (included in Exhibit
5.1)**
24.1 Power of Attorney (contained on the signature page of this
registration statement)***
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*Not filed herewith. In accordance with Rule 411 promulgated pursuant to the
Securities Act of 1933, as amended, reference is made to the documents
previously filed with the Commission, which are incorporated by reference
herein.
**Filed herewith.
***Previously filed.