As filed with the Securities and Exchange Commission on February 5, 2016
REGISTRATION NO. 333 -
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ABIOMED, INC.
(Exact
Name of Registrant as Specified in Its Charter)
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Delaware |
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04-2743260 |
(State or Other Jurisdiction of |
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(I.R.S. Employer |
Incorporation or Organization) |
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Identification No.) |
22 Cherry Hill Drive, Danvers, MA 01923
(Address, Including Zip Code, of Principal Executive Offices)
ABIOMED, INC. FOURTH AMENDED AND RESTATED
2008 STOCK INCENTIVE PLAN
(Full Title of the Plan)
Michael R. Minogue
Chief Executive Officer and President
ABIOMED, Inc.
22 Cherry
Hill Drive
Danvers, Massachusetts 01923
(978) 777-5410
(Name,
Address and Telephone Number, Including Area Code, of Agent For Service)
with copies to:
Paul M. Kinsella
Ropes & Gray LLP
Prudential Tower
800
Boylston Street
Boston, Massachusetts 02199
(617) 951-7000
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. (Check one):
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Large accelerated filer |
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x |
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Accelerated filer |
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¨ |
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Non-accelerated filer |
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¨ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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¨ |
CALCULATION OF REGISTRATION FEE
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Title of securities
to be registered |
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Amount
to be
Registered (1)(2) |
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Proposed
maximum offering
price per share(3) |
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Proposed
Maximum Aggregate
offering price(3) |
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Amount of
registration fee(3) |
Common Stock, $0.01 par value |
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1,700,000 |
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$85.29 |
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$144,998,559 |
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$14,602 |
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(1) |
Pursuant to General Instruction E of Form S-8, this Registration Statement covers the registration of 1,700,000 additional shares of Common Stock, par value $0.01 per share, authorized for issuance under the Fourth
Amended and Restated 2008 Stock Incentive Plan (the 2008 Plan). The Registrant previously filed Registration Statements on Form S-8 on August 13, 2008 (File No. 333-152989), September 1, 2011 (File
No. 333-176620) and February 12, 2013 (File No. 333-186613), which registered 2,000,000, 3,200,000 and 1,000,000 shares of Common Stock of the Registrant for issuance under the 2008 Plan, respectively. |
(2) |
Represents 1,700,000 shares of ABIOMED, Inc. Common Stock, par value $0.01 per share, that may be issued pursuant to the Fourth Amended and Restated 2008 Stock Incentive Plan. In addition, pursuant to Rule 416(c) under
the Securities Act of 1933, as amended (the Securities Act), this registration statement also covers an indeterminate number of additional shares of ABIOMED, Inc. Common Stock, par value $0.01 per share, that may become issuable pursuant
to terms designed to prevent dilution resulting from stock splits, stock dividends or similar events. |
(3) |
The registration fee of $14,602, the proposed maximum aggregate offering price of $144,998,559 and the proposed maximum offering price per share of $85.29 per share (rounded to the nearest cent) consist of
(a) $6,359.41 payable in respect of 718,862 shares with a weighted average grant/exercise price of $87.85 (rounded to the nearest cent) and (b) $8,241.95 in respect of the remaining 981,138 shares with a proposed maximum offering price per
share of $83.42 (rounded to the nearest cent), which has been estimated solely for the purpose of determining the registration fee pursuant to Rule 457(c) and (h) of the Securities Act on the basis of the average high and low prices of ABIOMED,
Inc. Common Stock reported on the NASDAQ Global Select Market as of a date (January 29, 2016) within five business days prior to the filing of this Registration Statement. |
EXPLANATORY NOTE
ABIOMED, Inc. (the Registrant) has prepared this registration statement in accordance with the requirements of Form S-8 under the Securities Act
to register an additional 1,700,000 shares of its Common Stock, par value $0.01 per share, issuable pursuant to the Registrants Fourth Amended and Restated 2008 Stock Incentive Plan (the 2008 Plan).
As permitted by General Instruction E to Form S-8 regarding registration of additional securities, this Registration Statement incorporates by reference the
contents of the Registration Statements on Form S-8 filed with the Securities and Exchange Commission (the SEC) on August 13, 2008 (File No. 333-152989), September 1, 2011 (File No. 333-176620) and
February 12, 2013 (File No. 333-186613), which registered 2,000,000, 3,200,000 and 1,000,000 shares of Common Stock of the Registrant for issuance under the 2008 Plan, respectively.
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the SEC are incorporated herein by reference:
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(1) |
The Registrants Annual Report on Form 10-K for the fiscal year ended March 31, 2015 (filed on May 28, 2015); |
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(2) |
The Registrants Definitive Proxy Statement (filed on July 2, 2015); |
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(3) |
The Registrants Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2015 (filed on August 6, 2015), the Registrants Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 2015 (filed on November 4, 2015) and the Registrants Quarterly Report on Form 10-Q for the fiscal quarter ended December 31, 2015 (filed on February 5, 2016); |
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(4) |
The Registrants Current Reports on Form 8-K filed on May 6, 2015, June 1, 2015, June 19, 2015, June 29, 2015, August 14, 2015, December 15,
2015, January 11, 2016 and February 4, 2016; and |
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(5) |
The description of the Registrants Common Stock, par value $0.01 per share, contained in the Registrants Registration Statement on Form 8-A, filed on June 16, 1987, pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the Exchange Act), including any amendment or report filed for purposes of updating such description. |
All reports and other documents filed by the Registrant after the date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from
the date of filing of such reports and documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of
Directors and Officers.
Section 102(b)(7) of the General Corporation Law of the State of Delaware (the DGCL) enables a corporation to
eliminate or limit the personal liability of a director for violations of the directors fiduciary duty, except for (i) any breach of the directors duty of loyalty to the corporation or its stockholders, (ii) acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) liability of directors for unlawful
payment of dividends or unlawful stock purchase or redemptions pursuant to Section 174 of the DGCL or (iv) any transaction from which a director derived an improper personal benefit.
Article 8 of the Registrants Restated Certificate of Incorporation, as amended, eliminates the personal liability of our directors to the Registrant or its stockholders for monetary damages for breach of fiduciary duty to the fullest extent
permitted by Delaware law.
Section 145(a) of the DGCL provides that a corporation shall have the power to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that
the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best interest of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person
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 reasonable cause to believe that his conduct was unlawful.
Section 145(b) of the DGCL provides that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no
indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such
action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware
Court of Chancery or such other court shall deem proper.
The Registrants Restated Certificate of Incorporation, as amended, and its Amended and
Restated Bylaws, together, provide that the Registrant is required to indemnify its officers and directors under certain circumstances, including those circumstances in which indemnification would otherwise be discretionary, and the Registrant is
required to advance expenses to its officers and directors as incurred in connection with proceedings against such officers and directors for which they may be indemnified.
We have entered into indemnification agreements with certain of our directors and certain of our officers and top management personnel and anticipate that we
will enter into similar agreements with future directors and officers. Generally, these agreements attempt to provide the maximum protection permitted by Delaware law with respect to indemnification. The indemnification agreements provide that we
will pay certain amounts incurred by our directors or officers in connection with any civil or criminal action or proceeding, specifically including actions by or in our name (derivative suits) where the individuals involvement is by reason of
the fact that he is or was a director or officer. Such amounts include, to the maximum extent permitted by law, attorneys fees, judgments, civil or criminal fines, settlement amounts and other expenses customarily incurred in connection with
legal proceedings. Under the indemnification agreements, an indemnitee will not receive indemnification if the indemnitee is found not to have acted in good faith and in a manner he reasonably believed to be in or not opposed to our best interests.
Generally, the indemnification agreements attempt to provide the maximum protection permitted by Delaware law with respect to indemnification of directors and officers.
The Registrant maintains directors and officers liability insurance for the benefit of its directors and officers.
Item 8. Exhibits.
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Exhibit Number |
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Description |
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5.1* |
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Opinion of Ropes & Gray LLP. |
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23.1* |
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Consent of Deloitte & Touche LLP. |
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23.2* |
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Consent of Ropes & Gray LLP (included in Exhibit 5.1). |
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24.1* |
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Power of Attorney (included on the signature page in Part II). |
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* |
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Filed herewith |
Item 9. Undertakings.
(a) 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:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the 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 the 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 a prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the
effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above shall 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 to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing
of the Registrants annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans 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.
(c) 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 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 Danvers, Commonwealth of Massachusetts, on the 5th day of February, 2016.
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ABIOMED, INC. |
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By: |
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/s/ Michael R. Minogue |
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Michael R. Minogue |
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President, Chief Executive Officer and Chairman |
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Michael R. Minogue and Michael J. Tomsicek, and each of them singly, his true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them singly, for him and in his name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to
this Registration Statement on Form S-8 of ABIOMED, Inc., and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting to the attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in or about the premises, as full to all intents and purposes as he might or could do in person, hereby ratifying and confirming
all that the attorneys-in-fact and agents or any of each of them 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 in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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/s/ Michael R. Minogue
Michael R. Minogue |
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President, Chief Executive Officer and Chairman (Principal Executive Officer) |
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February 5, 2016 |
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/s/ Michael J. Tomsicek
Michael J. Tomsicek |
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Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer) |
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February 5, 2016 |
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/s/ W. Gerald Austen
W. Gerald Austen |
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Director |
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February 5, 2016 |
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/s/ Dorothy E. Puhy
Dorothy E. Puhy |
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Director |
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February 5, 2016 |
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/s/ Eric A. Rose
Eric A. Rose |
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Director |
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February 5, 2016 |
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/s/ Martin P. Sutter
Martin P. Sutter |
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Director |
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February 5, 2016 |
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/s/ Henri A. Termeer
Henri A. Termeer |
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Director |
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February 5, 2016 |
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/s/ Paul Thomas
Paul Thomas |
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Director |
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February 5, 2016 |
INDEX OF EXHIBITS
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Exhibit Number |
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Description |
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5.1* |
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Opinion of Ropes & Gray LLP. |
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23.1* |
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Consent of Deloitte & Touche LLP. |
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23.2* |
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Consent of Ropes & Gray LLP (included in Exhibit 5.1). |
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24.1* |
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Power of Attorney (included on the signature page in Part II). |
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* |
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Filed herewith |
Exhibit 5.1
February 5, 2016
ABIOMED, Inc.
22 Cherry Hill Drive
Danvers, Massachusetts 01923
Ladies and Gentlemen:
This opinion letter is furnished to you
in connection with the registration statement on Form S-8 (the Registration Statement), filed by ABIOMED, Inc., a Delaware corporation (the Company), on the date hereof,
with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the Securities Act), for the registration of 1,700,000 shares of Common Stock, $0.01 par value, of the Company (the
Shares). The Shares are issuable under the Companys Fourth Amended and Restated 2008 Stock Incentive Plan (the Plan).
We have examined such certificates, documents and records and have made such investigation of fact and such examination of law as we have deemed appropriate
in order to enable us to render the opinions set forth herein. In conducting such investigation, we have relied, without independent verification, upon certificates of officers of the Company, public officials and other appropriate persons.
The opinions expressed below are limited to the Delaware General Corporation Law.
Based upon and subject to the foregoing, we are of the opinion that the Shares have been duly authorized and, when the Shares have been issued and sold in
accordance with the terms of the Plan, the Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion
letter as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
Very truly yours,
/s/ Ropes & Gray LLP
Ropes & Gray LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports relating to the consolidated financial statements and
financial statement schedule of ABIOMED, Inc. and subsidiaries and the effectiveness of ABIOMED, Inc.s and subsidiaries internal control over financial reporting dated May 28, 2015, appearing in the Annual Report on Form 10-K of ABIOMED,
Inc. for the year ended March 31, 2015.
/s/ DELOITTE & TOUCHE LLP
Boston, Massachusetts
February 5, 2016
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