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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. __)*
ABIOMED, INC.
- --------------------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK, $0.01 PAR VALUE
- --------------------------------------------------------------------------------
(Title of Class of Securities)
003654 10 0
-------------------------------------------------------
(CUSIP Number)
PETER WIRTH, ESQ. MAUREEN P. MANNING, ESQ.
GENZYME CORPORATION PALMER & DODGE LLP
ONE KENDALL SQUARE ONE BEACON STREET
CAMBRIDGE, MA 02139 BOSTON, MA 02108
(617) 252-7500 (617) 573-0100
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
JULY 14, 1997
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
NOTE: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are being
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 (the "Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the
Notes).
SEC 1746(12-91)
Page 1 of 33 Pages
<PAGE> 2
SCHEDULE 13D
- ------------------------- ----------------
CUSIP NO. PAGE 2 OF 33
---------------- --- ---
PAGES
- ------------------------- ----------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GENZYME CORPORATION (IRS IDENTIFICATION NO.: 06-1047163)
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF THE GROUP (a) [ ]
(b) [ ]
N/A
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E)[ ]
N/A
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
MASSACHUSETTS
- --------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 1,153,846
PERSON WITH
-------------------------------------------------------
8 SHARED VOTING POWER
0
-------------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,153,846
-------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,153,846
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ]
N/A
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW(11)
14.0%
- --------------------------------------------------------------------------------
14 TYPE OR REPORT PERSON*
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 3
ITEM 1. SECURITY AND ISSUER.
This statement relates to the common stock, $0.01 par value per share
("Common Stock"), of ABIOMED, Inc. ("ABIOMED").
The principal executive offices of ABIOMED are located at 33 Cherry
Hill Drive, Danvers, Massachusetts 01923.
ITEM 2. IDENTITY AND BACKGROUND.
The person filing this statement is Genzyme Corporation ("Genzyme"), a
Massachusetts corporation. Genzyme is a publicly-held, diversified human health
care products company with its principal place of business and principal office
located at One Kendall Square, Cambridge, Massachusetts 02139.
Set forth in Exhibit B to this Schedule 13D and incorporated herein by
reference is the following information with respect to each director and
executive officer of Genzyme: (i) name; (ii) business address; (iii) present
principal occupation or employment and the name, principal business and address
of any corporation or other organization in which such employment is conducted
and (iv) citizenship.
During the last five years, neither Genzyme nor any of its directors or
executive officers has been (a) convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or (b) a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order
enjoining further violation of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On July 14, 1997, ABIOMED and Genzyme entered into a Common Stock
Purchase Agreement whereby Genzyme purchased 1,153,846 shares (the "Shares") of
Common Stock for a purchase price of $14,999,998. The funds used in making the
purchase came from Genzyme's working capital.
ITEM 4. PURPOSE OF TRANSACTION.
Genzyme has acquired the Shares for its own account for investment
purposes. Under the terms of the Common Stock Purchase Agreement, a copy of
which is filed herewith as Exhibit A, Genzyme has agreed that, among other
things, neither it nor its affiliates will, without the prior consent of
ABIOMED, acquire additional ABIOMED voting securities (except for the grant to
Henri A. Termeer, the President and Chief Executive Officer of Genzyme, of
shares of Common Stock or options to acquire shares of Common Stock in
connection with Mr. Termeer's service as a director of ABIOMED), solicit proxies
with respect to ABIOMED voting securities or participate in any election contest
relating to the election of ABIOMED directors. Genzyme has also agreed to take
such action as may be required so that all ABIOMED voting securities held by it
or its affiliates will be voted in the same proportion as votes cast by other
ABIOMED stockholders or, in Genzyme's discretion, in accordance with the
recommendations of ABIOMED's Board of Directors. These "standstill" restrictions
will terminate on July 14,
Page 3 of 33 Pages
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2002 and will be suspended under certain circumstances set forth in the Common
Stock Purchase Agreement.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) Genzyme beneficially owns 1,153,846 shares of Common Stock, which
represents approximately 14.0% of the outstanding shares of such class of
securities. Mr. Termeer beneficially owns 25,400 shares of Common Stock,
including 25,000 shares subject to currently exercisable stock options.
(b) See the responses to lines (7), (8), (9), and (10) on page 2
hereof.
(c) The shares referred to in Item 5(a) were purchased pursuant to the
Common Stock Purchase Agreement in a private placement at a price of $13.00 per
share.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
See the response to Items 3 and 4.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit A - Common Stock Purchase Agreement. Filed herewith.
Exhibit B - Directors and Executive Officers of Genzyme Corporation.
Filed herewith.
Page 4 of 33 Pages
<PAGE> 5
SIGNATURE
---------
After reasonable inquiry and to the best of its knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Date: July 18, 1997 GENZYME CORPORATION
By: /s/ Peter Wirth
----------------------------------------
Peter Wirth
Executive Vice President and Chief Legal
Officer
Page 5 of 33 Pages
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EXHIBIT INDEX
-------------
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
- ------- ----------- ------
A Common Stock Purchase Agreement between
ABIOMED Inc. and Genzyme Corporation. 8
B Directors and Executive Officers of
Genzyme Corporation. 32
Page 6 of 33 Pages
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EXHIBIT A
Page 7 of 33 Pages
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COMMON STOCK PURCHASE AGREEMENT
between
ABIOMED, Inc.
and
GENZYME CORPORATION
dated as of July 14, 1997
Page 8 of 33 Pages
<PAGE> 3
TABLE OF CONTENTS
ARTICLE 1. PURCHASE AND SALE OF SHARES.................................... 1
1.1. Authorization.................................................. 1
1.2. Sale and Purchase of the Shares................................ 1
1.3. Delivery of Certificates....................................... 1
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF ABIOMED...................... 1
2.1. Organization and Qualification................................. 1
2.2. Capitalization................................................. 2
2.3. Issuance and Sale of Shares.................................... 2
2.4. Authority for Agreement........................................ 3
2.5. SEC Reports.................................................... 3
2.6. Financial Statements........................................... 3
2.7. Subsidiaries................................................... 3
2.8. Absence of Undisclosed ABIOMED Liabilities..................... 4
2.9. No Material Adverse Change..................................... 4
2.10. Tax Matters.................................................... 4
2.11. No Breach...................................................... 5
2.12. Actions and Proceedings........................................ 5
2.13. Compliance with Laws........................................... 5
2.14. Brokerage...................................................... 5
2.15. Full Disclosure................................................ 6
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF GENZYME...................... 6
3.1. Authority for Agreement........................................ 6
3.2. Investment..................................................... 6
3.3. Restrictions on Transferability; Legend........................ 6
3.4. Information.................................................... 7
3.5. Brokerage...................................................... 7
ARTICLE 4. CONDITIONS PRECEDENT........................................... 7
ARTICLE 5. COVENANTS OF ABIOMED........................................... 7
5.1. Corporate Existence............................................ 7
5.2. Reporting Status............................................... 8
5.3. Listing........................................................ 8
5.4. Use of Proceeds................................................ 8
5.5. Information to be Furnished.................................... 8
ARTICLE 6. COVENANTS OF GENZYME........................................... 8
6.1. Standstill Agreement........................................... 8
6.2. Voting of Shares............................................... 9
6.3. Henri A. Termeer............................................... 9
6.4. Release of Restrictions........................................ 10
ARTICLE 7. REGISTRATION RIGHTS............................................ 10
7.1. Certain Definitions............................................ 10
Page 9 of 33 Pages
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7.2. Required Registration.......................................... 10
7.3. Incidental Registration........................................ 11
7.4. Conditions of Obligations to Register Shares................... 12
7.5. Registration Procedures........................................ 12
7.6. Description of Expenses........................................ 14
7.7. Indemnification................................................ 15
ARTICLE 8. CONFIDENTIALITY................................................ 16
8.1. Non-Disclosure Obligations..................................... 16
8.2. Exceptions to Non-Disclosure Obligations....................... 17
8.3. Ownership of Confidential Information.......................... 17
8.4. Destruction of Confidential Information........................ 18
8.5. Material Inside Information.................................... 18
8.6. Terms of this Agreement........................................ 18
ARTICLE 9. JOINT DEVELOPMENT AND COLLABORATIONS........................... 18
ARTICLE 10. MISCELLANEOUS................................................. 18
10.1. Assignment..................................................... 18
10.2. Severability................................................... 18
10.3. Notices........................................................ 19
10.4. Applicable Law................................................. 19
10.5. Entire Agreement............................................... 19
10.6. Headings....................................................... 20
10.7. Counterparts................................................... 20
Page 10 of 33 Pages
<PAGE> 5
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT dated as of July 14, 1997 (the
"AGREEMENT") is between ABIOMED, Inc., a Delaware corporation having its
principal place of business at 33 Cherry Hill Drive, Danvers, Massachusetts
01923 ("ABIOMED"), and Genzyme Corporation, a Massachusetts corporation having
its principal place of business at One Kendall Square, Cambridge, Massachusetts
02139 ("GENZYME"). ABIOMED and Genzyme are sometimes referred to herein
individually as a "PARTY" and collectively as the "PARTIES."
In consideration of the mutual promises and of the covenants contained
herein, the Parties hereby agree as follows:
ARTICLE 1. PURCHASE AND SALE OF SHARES
1.1. AUTHORIZATION. ABIOMED has duly authorized the issuance and sale
to Genzyme of 1,153,846 shares (the "Shares") of its Common Stock, $0.01 par
value per share ("COMMON STOCK").
1.2. SALE AND PURCHASE OF THE SHARES. Concurrently with the execution
and delivery of this Agreement, ABIOMED hereby issues and sells to Genzyme, and
Genzyme hereby purchases from ABIOMED, the Shares at a purchase price of $13.00
per Share, for an aggregate purchase price of Fourteen Million Nine Hundred
Ninety-Nine Thousand Nine Hundred Ninety-Eight Dollars ($14,999,998), payable by
Genzyme to ABIOMED upon execution of this Agreement.
1.3. DELIVERY OF CERTIFICATES. On the date hereof, ABIOMED will deliver
to Genzyme one or more certificates representing the Shares registered in the
name of Genzyme against payment by Genzyme of the purchase price by check or
wire transfer.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF ABIOMED
Except as otherwise set forth in the disclosure schedule delivered to
Genzyme on the date hereof (the "DISCLOSURE SCHEDULE"), the section numbers of
which are numbered to correspond to the sections of this Agreement to which they
refer, ABIOMED represents and warrants to Genzyme as follows:
2.1. ORGANIZATION AND QUALIFICATION. Each of ABIOMED and the
Subsidiaries (as defined in Section 2.7) is a corporation or partnership duly
organized, validly existing and in good standing under the laws of its state or
jurisdiction of incorporation or formation with full power and authority to own,
lease and operate its assets, properties and business and to carry on its
business as now being and as heretofore conducted. Each of ABIOMED and the
Page 11 of 33 Pages
<PAGE> 6
Subsidiaries is qualified or otherwise authorized to transact business as a
foreign corporation or partnership in all jurisdictions in which such
qualification or authorization is required by law, except for jurisdictions in
which the failure to so qualify or be authorized would not have a material
adverse effect on the assets, properties, business, operations or condition
(financial or otherwise) of ABIOMED and the Subsidiaries taken as a whole (the
"BUSINESS OF ABIOMED").
2.2. CAPITALIZATION.
(a) ABIOMED is authorized to issue 25,000,000 shares of Common
Stock, of which 7,017,872 shares were issued and outstanding as of June 30,
1997, 2,346,000 shares of Class A Common Stock, $0.01 par value per share, none
of which are issued and outstanding, 150,000 shares of Class A Preferred Stock,
$0.01 par value per share, none of which are issued and outstanding, and
1,000,000 shares of Class B Preferred Stock, $0.01 par value per share, none of
which are issued and outstanding. No other class of capital stock of ABIOMED is
authorized or outstanding. All of the issued and outstanding shares of ABIOMED's
capital stock are duly authorized and are validly issued, fully paid,
nonassessable and free of preemptive rights. None of the issued and outstanding
shares have been issued in violation of any federal or state law except for
violations that would not have a material adverse effect on the Business of
ABIOMED.
(b) Options representing in the aggregate the right to
purchase 919,785 shares of Common Stock pursuant to ABIOMED's 1992 Combination
Stock Option Plan and ABIOMED's 1989 Non-Qualified Stock Option Plan for
Non-Employee Directors are outstanding as of the date hereof.
(c) 90,718 shares of Common Stock are reserved for issuance
under ABIOMED's 1988 Employee Stock Purchase Plan as of the date hereof.
(d) Except as set forth in paragraphs (a), (b) and (c) of this
Section 2.2, Section 2.2 of the Disclosure Schedule or as a result of the
exercise of outstanding options or rights set forth therein, there are not, as
of the date hereof, any other shares of ABIOMED capital stock authorized or
outstanding or any subscriptions, options, conversion or exchange rights,
warrants, repurchase or redemption agreements, or other agreements or
commitments obligating ABIOMED to issue, transfer, sell, repurchase or redeem
any shares of its capital stock or other securities of ABIOMED. To the best
knowledge of ABIOMED, there are no written stockholder agreements, voting
trusts, proxies or other agreements, instruments or understandings with respect
to the voting of the capital stock of ABIOMED.
2.3. ISSUANCE AND SALE OF SHARES. The issuance and sale of the
Shares by ABIOMED has been duly authorized and the Shares have been duly
reserved for issuance by all necessary corporate action on the part of ABIOMED,
and the Shares, when issued and delivered against payment therefor, will be duly
and validly issued, fully paid and non-assessable. Based in part on the
representations made by Genzyme set forth in Article 3 below, the offer,
issuance and sale of the Shares pursuant to this Agreement are exempt from
registration under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), and applicable state securities laws. ABIOMED has complied with all
applicable federal and state securities laws and with the Nasdaq By-Laws in
connection with the offer, issuance and sale of the Shares.
Page 12 of 33 Pages
<PAGE> 7
2.4. AUTHORITY FOR AGREEMENT. The execution, delivery and
performance by ABIOMED of this Agreement has been duly authorized by all
necessary corporate action, and this Agreement has been duly executed and
delivered by ABIOMED. This Agreement constitutes the valid and binding
obligation of ABIOMED enforceable against ABIOMED in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium and similar laws
affecting the rights and remedies of creditors generally and to general
principles of equity.
2.5. SEC REPORTS. ABIOMED has previously delivered to Genzyme its
(a) Annual Report on Form 10-K for the year ended March 31, 1997 (the "ABIOMED
10-K"), as filed with the Securities and Exchange Commission (the "SEC"), (b)
all proxy statements relating to ABIOMED's meetings of stockholders held or
currently scheduled to be held since March 31, 1997 and (c) all other reports
filed by ABIOMED with the SEC under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), since March 31, 1997. As of their respective
dates, such reports complied in all material respects with applicable SEC
requirements and did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. ABIOMED has timely filed with the SEC all reports required to be
filed under Section 13, 14 or 15(d) of the Exchange Act since March 31, 1997.
2.6. FINANCIAL STATEMENTS. The financial statements contained in
the ABIOMED 10-K have been prepared from, and are in accordance with, the books
and records of ABIOMED and present fairly, in all material respects, the
financial condition and results of operations of ABIOMED as of and for the
periods presented therein, all in conformity with United States generally
accepted accounting principles, consistently applied, except as otherwise noted
therein.
2.7. SUBSIDIARIES.
(a) The Disclosure Schedule sets forth all of the Subsidiaries
and the jurisdiction in which each is incorporated or organized. Except as set
forth on the Disclosure Schedule, all issued and outstanding shares or
partnership interests of each Subsidiary are owned directly by ABIOMED free and
clear of any charges, liens, encumbrances, security interests or adverse claims.
As used in this Agreement, "Subsidiary" means any corporation, partnership or
other legal entity of which ABIOMED or any Subsidiary owns, directly or
indirectly, 50% or more of the stock or other equity interest entitled to vote
for the election of directors.
(b) Except as set forth on the Disclosure Schedule, there are
not as of the date hereof any other shares of capital stock or other equity
interest of any Subsidiary authorized or outstanding or any subscriptions,
options, conversion or exchange rights, warrants, repurchase or redemption
agreements, or other agreements, claims or commitments of any nature whatsoever
obligating any Subsidiary to issue, transfer, deliver, sell, repurchase or
redeem any shares of the capital stock or other equity interest of any
Subsidiary or obligating ABIOMED or any Subsidiary to grant, extend or enter
into any such agreement. To the best knowledge of ABIOMED, there are no
stockholder agreements, voting trusts, proxies or other agreements, instruments
or understandings with respect to the capital stock of any Subsidiary.
Page 13 of 33 Pages
<PAGE> 8
(c) Except for the Subsidiaries, ABIOMED does not directly or
indirectly own or have any investment in any of the capital stock of, and is not
a party to a partnership or joint venture with, any other person.
2.8. ABSENCE OF UNDISCLOSED ABIOMED LIABILITIES. As of March 31,
1997, ABIOMED and the Subsidiaries had no material liabilities of any nature,
whether accrued, absolute, contingent or otherwise, (a) required to be reflected
or disclosed on the balance sheets dated March 31, 1997 (or the notes thereto)
included in the ABIOMED 10-K that were not adequately reflected or reserved
against on such balance sheets or (b) for the payment of any dividends, or any
other distribution, to the stockholders of ABIOMED. ABIOMED and the Subsidiaries
have no such liabilities, other than liabilities (i) adequately reflected or
reserved against on such balance sheet, (ii) incurred since March 31, 1997 in
the ordinary course of business and consistent with past practice or (iii) that
would not, in the aggregate, have a material adverse effect on the Business of
ABIOMED.
2.9. NO MATERIAL ADVERSE CHANGE. Since March 31, 1997, there has
not been any material adverse change in the Business of ABIOMED.
2.10. TAX MATTERS.
(a) ABIOMED and each of the Subsidiaries have filed all tax
reports and returns required to be filed by them and have paid or will timely
pay all taxes and other charges shown as due on such reports and returns.
Neither ABIOMED nor any of the Subsidiaries is delinquent in the payment of any
material tax assessment or other governmental charge (including without
limitation applicable withholding taxes). Any provision for taxes reflected in
the financial statements referenced in Section 2.6 above is, to the best
knowledge of ABIOMED, adequate for payment of any and all tax liabilities for
periods ending on or before March 31, 1997 and there are no tax liens on any
assets of ABIOMED or the Subsidiaries except liens for current taxes not yet
due.
(b) Except as set forth in the Disclosure Schedule, there has
not been any audit of any tax return filed by ABIOMED or any of the Subsidiaries
and no audit of any such tax return is in progress and neither ABIOMED nor any
Subsidiary has been notified by any tax authority that any such audit is
contemplated or pending. ABIOMED knows of no material tax deficiency or claim
for additional taxes asserted or threatened to be asserted against ABIOMED or
any of the Subsidiaries by any taxing authority and ABIOMED knows of no grounds
for any such assessment. No extension of time with respect to any date on which
a tax return was or is to be filed by ABIOMED or any of the Subsidiaries is in
force, and no waiver or agreement by ABIOMED or any of the Subsidiaries is in
force for the extension of time for the assessment or payment of any tax. For
purposes of this Agreement, the term "tax" includes all federal, state, local
and foreign taxes or assessments, including income, sales, gross receipts,
excise, use, value added, royalty, franchise, payroll, withholding, property and
import taxes and any interest or penalties applicable thereto.
2.11. NO BREACH. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(a) violate any provision of the certificate of incorporation or by-laws of
ABIOMED; (b) violate, conflict with or result in the breach of any of the terms
or conditions of, result in modification of the effect of, or otherwise give any
other contracting party the right to terminate, or constitute (or with
Page 14 of 33 Pages
<PAGE> 9
notice or lapse of time or both constitute) a default under, any material
instrument, contract or other agreement to which ABIOMED or any of the
Subsidiaries is a party or to which any of the assets or properties of ABIOMED
or any of the Subsidiaries may be bound or subject; (c) violate any order,
judgment, injunction, award or decree of any court, arbitrator or governmental
or regulatory body against, or binding upon, ABIOMED, any Subsidiary or upon any
of their respective securities, properties, assets or businesses; (d) violate
any statute, law or regulation of any jurisdiction as such statute, law or
regulation relates to ABIOMED, any Subsidiary or any of their respective
securities, properties, assets or businesses; (e) require the approval, consent
or authorization of, or registration or filing with, any foreign, federal,
state, local or other governmental or regulatory body or the approval, consent,
waiver or notification of any stockholder, creditor, lessor or other person; or
(f) result in the creation of any lien or other encumbrance on the assets or
properties of ABIOMED or any of the Subsidiaries, excluding from clauses (b) -
(f) such matters as would not in the aggregate have a material adverse effect on
the Business of ABIOMED or upon the transactions contemplated hereby.
2.12. ACTIONS AND PROCEEDINGS. There are no outstanding orders,
judgments, injunctions, awards or decrees of any court, governmental or
regulatory body or arbitration tribunal against ABIOMED, any Subsidiary or any
of their respective properties or assets. There are no actions, suits or claims
or legal, administrative or arbitral proceedings or, to the best knowledge of
ABIOMED, investigations (whether or not the defense thereof or liabilities in
respect thereof are covered by insurance) pending or, to the best knowledge of
ABIOMED, threatened against ABIOMED, any Subsidiary or any of their respective
properties or assets.
2.13. COMPLIANCE WITH LAWS. To its knowledge, neither ABIOMED nor any
of the Subsidiaries is in violation of any statute, law, rule or regulation, or
in default with respect to any judgment, writ, injunction, decree, rule or
regulation of any court, governmental or regulatory body or arbitration
tribunal, including without limitation laws relating to environmental
protection, health and safety matters and labor and employment practices, except
for such violations or defaults which do not, individually or in the aggregate,
materially and adversely affect the Business of ABIOMED.
2.14. BROKERAGE. Except as set forth in the Disclosure Schedule, no
broker, finder, agent or similar intermediary has acted on behalf of ABIOMED in
connection with this Agreement or the transactions contemplated hereby, and
there are no brokerage commissions, finders fees or similar fees or commissions
payable in connection therewith based on any agreement, arrangement or
understanding with ABIOMED or any action taken by ABIOMED.
2.15. FULL DISCLOSURE. The representations and warranties of ABIOMED
contained in this Agreement, together with the ABIOMED 10-K, taken as a whole as
of the date hereof, do not (a) contain an untrue statement of a material fact or
omit to state a material fact required to be stated or necessary to make the
statements made, in light of the circumstances under which made, not false or
misleading or (b) omit to state a material fact known to ABIOMED that reasonably
could be expected to materially adversely affect the Business of ABIOMED.
Page 15 of 33 Pages
<PAGE> 10
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF GENZYME
Genzyme hereby represents and warrants to ABIOMED as follows:
3.1. AUTHORITY FOR AGREEMENT. The execution, delivery and performance
by Genzyme of this Agreement has been duly authorized by all necessary corporate
action, and this Agreement has been duly executed and delivered by Genzyme. This
Agreement constitutes the valid and binding obligation of Genzyme enforceable
against Genzyme in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium and similar laws affecting the rights and remedies of
creditors generally and to general principles of equity.
3.2. INVESTMENT. Genzyme is an accredited investor, as defined in Rule
501 of Regulation D under the Securities Act. Genzyme is acquiring the Shares
solely for its own account for investment purposes as a principal and not with a
view to the public resale or distribution of all or any part thereof; provided,
however, that in making such representation, Genzyme does not agree to hold the
Shares for any minimum or specific term and reserves the right to sell, transfer
or otherwise dispose of the Shares at any time in accordance with the terms of
this Agreement and with federal and state securities laws applicable to such
sale, transfer or disposition.
3.3. RESTRICTIONS ON TRANSFERABILITY; LEGEND. Genzyme understands that
the Shares have not been registered under the Securities Act or under the
securities laws of any state or other jurisdiction in reliance upon exemptions
thereunder. Genzyme acknowledges and is aware that the Shares cannot be resold
unless the Shares are registered under the Securities Act and any applicable
securities law of any state or other jurisdiction, or an exemption from
registration is available. Each certificate representing the Shares shall bear a
legend in substantially the following form (unless such Shares have been
transferred pursuant to a registration statement under the Securities Act or, in
the opinion of counsel acceptable to ABIOMED, such a legend is not required):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAW AND MAY NOT BE TRANSFERRED EXCEPT (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR (ii) UPON FIRST
FURNISHING TO THE COMPANY AN OPINION OF COUNSEL SATISFACTORY TO IT THAT
SUCH TRANSFER IS NOT IN VIOLATION OF THE REGISTRATION REQUIREMENTS OF
THE ACT OR ANY STATE SECURITIES LAW.
3.4. INFORMATION. Genzyme has reviewed (a) the representations of
ABIOMED contained in this Agreement and (b) the ABIOMED 10-K and has had the
opportunity to make inquiry concerning ABIOMED and its business and personnel.
The officers of ABIOMED have made available to Genzyme any and all written
information that it has requested and have answered to Genzyme's satisfaction
all inquiries made by Genzyme. Genzyme acknowledges that Henri A. Termeer,
President and Chief Executive Officer of Genzyme, is a member of the Board of
Directors of ABIOMED, and in that capacity Mr. Termeer has knowledge of the
Business of ABIOMED.
Page 16 of 33 Pages
<PAGE> 11
3.5. BROKERAGE. No broker, finder, agent or similar intermediary has
acted on behalf of Genzyme in connection with this Agreement or the transactions
contemplated hereby, and there are no brokerage commissions, finders fees or
similar fees or commissions payable in connection therewith based on any
agreement, arrangement or understanding with Genzyme, or any action taken by it.
ARTICLE 4. CONDITIONS PRECEDENT
Contemporaneously with the execution of this Agreement, ABIOMED shall
deliver to Genzyme:
(a) The certificate of incorporation, as amended, of ABIOMED,
certified by the Secretary of State of Delaware as of the most recent
practicable date;
(b) Certificates, as of the most recent practicable date, as
to the corporate good standing and legal existence of ABIOMED issued by the
Secretary of State of Delaware and the Secretary of the Commonwealth of
Massachusetts, each confirming such good standing and legal existence as of such
date;
(c) By-laws of ABIOMED, certified by its Secretary as of the
date hereof;
(d) Resolutions of the Board of Directors of ABIOMED
authorizing and approving this Agreement and the issuance of the Shares hereby,
certified by the Secretary of ABIOMED as of the date hereof; and
(e) An opinion of counsel to ABIOMED, dated as of the date
hereof and addressed to Genzyme, in a form reasonably acceptable to Genzyme and
its counsel.
ARTICLE 5. COVENANTS OF ABIOMED
5.1. CORPORATE EXISTENCE. ABIOMED will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence; provided, however, nothing herein shall prevent or limit the right of
ABIOMED to merge or consolidate with any other entity or to sell all or
substantially all of its assets to another entity followed by a dissolution of
ABIOMED, or to enter into any similar transaction.
5.2. REPORTING STATUS. For so long as Genzyme or any affiliate of
Genzyme beneficially owns any of the Shares, ABIOMED (a) shall timely file with
the SEC any and all reports required to be so filed pursuant to the Exchange Act
and (b) shall not terminate its status as an issuer required by the Exchange Act
to file reports thereunder even if the Exchange Act or the rules or regulations
thereunder would permit such termination.
5.3. LISTING. For so long as Genzyme or any affiliate of Genzyme
beneficially owns any of the Shares, ABIOMED shall cause the Common Stock to
continue to be listed for trading on Nasdaq or on a national securities
exchange.
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<PAGE> 12
5.4. USE OF PROCEEDS. ABIOMED will use amounts paid for the Shares
hereunder for working capital and general corporate purposes, including research
and development of new products and product enhancements, including the
development of a battery-powered implantable total artificial heart, subject to
adjustment based upon the results of development efforts, delays or changes in
governmentally required testing and approval procedures, changing market
conditions and other risks described in the ABIOMED 10-K.
5.5. INFORMATION TO BE FURNISHED. For so long as Genzyme or any
affiliate of Genzyme holds Shares representing at least 1% of the outstanding
shares of Common Stock, ABIOMED will furnish promptly to Genzyme copies of (a)
each report and proxy statement filed by ABIOMED with the SEC pursuant to
Section 13(a), 14 or 15(d) of the Exchange Act, (b) all financial statements,
periodic and special reports and investor relations materials as ABIOMED may
distribute to all holders of Common Stock generally and (c) all press releases
issued by ABIOMED.
ARTICLE 6. COVENANTS OF GENZYME
6.1. STANDSTILL AGREEMENT. Genzyme agrees that, unless it has
obtained the prior written consent of ABIOMED or the restrictions contained in
this Article 6 have otherwise been released or suspended as provided below, it
will not, nor will it allow its Affiliates (as that term is defined in Rule
12b-2 under the Exchange Act, regardless of whether such person is an Affiliate
on the date hereof) to:
(a) acquire, offer to acquire or enter into any agreement to
acquire, directly or indirectly, by purchase or otherwise, record or beneficial
ownership of any additional voting securities of ABIOMED or direct or indirect
rights or options to acquire (through purchase, exchange, conversion or
otherwise) voting securities of ABIOMED;
(b) "solicit" proxies with respect to voting securities under
any circumstances, in any way participate in any "solicitation" of "proxies" or
become a "participant" in any "election contest" relating to the election of
directors of ABIOMED, as such terms are defined in Regulation 14A under the
Exchange Act;
(c) deposit any voting securities in a voting trust or subject
them to a voting agreement or other agreement of similar effect;
(d) call any special meeting of stockholders of ABIOMED or
initiate or participate in the initiation of any special meeting of stockholders
of ABIOMED for any purpose;
(e) initiate, propose or otherwise solicit stockholders for
the approval of one or more stockholder proposals at any time, or induce or
attempt to induce any other person to initiate any stockholder proposal;
(f) request, or take any action to obtain or retain from
ABIOMED, directly or indirectly, any list of holders of securities (other than
to avail itself of the inspection rights set forth in Sections 219 and 220 of
the Delaware General Corporation Law, or any similar successor statutory
provisions, for any proper purpose);
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<PAGE> 13
(g) fail to withdraw any proposal relating to any matter set
forth in this Section 6.1 that, in the written opinion of counsel to ABIOMED,
would require ABIOMED to make a public announcement with respect thereto;
(h) form, join or in any way participate in a "group" (within
the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting
securities of ABIOMED;
(i) assist, advise, encourage or influence in any respect any
third party to seek to control management of ABIOMED including, without
limitation (i) proposing any business combination or similar transaction with, a
change in control of, or any restructuring, recapitalization or other
extraordinary transaction involving, ABIOMED, (ii) influencing the management,
board of directors or policies of ABIOMED or (iii) acquiring, holding, voting or
disposing of voting securities of ABIOMED; or
(j) take any action individually or jointly with any
partnership, limited partnership, syndicate, or other group or assist any other
person, corporation, entity or group in taking any action it could not take
individually under the terms of this Agreement.
6.2. VOTING OF SHARES. For so long as the restrictions contained in
Section 6.1 remain in effect, Genzyme shall take such action as may be required
so that (a) all voting securities held by it or any of its Affiliates shall be
present for purposes of determining a quorum at every meeting of the holders of
Common Stock and (b) such securities shall be voted in the same proportion as
the votes cast by holders of the same class of voting securities other than
Genzyme and its Affiliates, or, in Genzyme's discretion, in accordance with the
recommendations of ABIOMED's Board of Directors.
6.3. HENRI A. TERMEER. The restrictions of this Article 6 shall not
prohibit (i) the grant to Henri A. Termeer, in connection with his position as a
member of the Board of Directors of ABIOMED, of shares of Common Stock or
options to acquire shares of Common Stock, or the exercise by Mr. Termeer of any
such options or (ii) the exercise by Mr. Termeer of his fiduciary duties as a
member of the Board of Directors of ABIOMED.
6.4. RELEASE OF RESTRICTIONS. Notwithstanding the foregoing, the
restrictions contained in this Article 6:
(a) shall be suspended during such time as the Board of
Directors of ABIOMED determines to accept bids from any responsible bidder to
obtain the best price for the sale of ABIOMED, but only so long as ABIOMED
continues to accept such bids or negotiate or consummate a transaction with any
bidder;
(b) shall be suspended during such time as any third party
makes an unsolicited offer to acquire more than fifty percent (50%) of the
outstanding voting securities of ABIOMED, but only so long as such offer is
outstanding; and
(c) shall be released after the fifth anniversary of the date
hereof.
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<PAGE> 14
ARTICLE 7. REGISTRATION RIGHTS
7.1. CERTAIN DEFINITIONS. As used in this Article 7, the following
terms shall have the following respective meanings:
(a) "Holders" shall mean Genzyme and any of its successors and
assigns (other than successors and assigns who acquire the Shares pursuant to a
registered public offering or pursuant to a transaction covered by Rule 144
under the Securities Act) who hold at least 5% of the Common Stock.
(b) "Registration Expenses" and "Selling Expenses" shall mean
the expenses so described in Section 7.6.
(c) "Other Holders" shall mean all holders of the Company's
securities other than Holders.
(d) "Underwriter" shall mean each person who is or may be
deemed an "underwriter," as that term is defined in Section 2(11) of the
Securities Act, in respect of securities which shall have been registered by
ABIOMED under the Securities Act pursuant to any of the provisions of this
Article 7.
7.2. REQUIRED REGISTRATION.
(a) At any time after the first anniversary of the date hereof
and prior to the seventh anniversary of the date hereof, the Holder(s) of at
least 25% of the then unregistered Shares may notify ABIOMED in writing that
such Holder(s) intend to offer or cause to be offered for sale unregistered
Shares and request ABIOMED to cause such Shares to be registered under the
Securities Act if such registration may be effected on Form S-3 (or any similar
or successor form promulgated by the SEC). Such right to require registration
shall be available to Holders on not more than a total of three (3) occasions,
and on not more than one (1) occasion during any twelve (12) month period,
provided such right shall be deemed to have been used only upon a registration
statement on Form S-3, or successor form, becoming and remaining effective in
accordance with such request and the provisions hereof.
(b) Upon a request pursuant to Section 7.2(a), ABIOMED will
use commercially reasonable efforts as soon as practicable thereafter to prepare
and file a registration statement on the appropriate form covering such Shares.
Neither ABIOMED nor any Other Holder may include any securities in any
registration statement requested pursuant to this Section 7.2 which relates to
an underwritten offering unless the underwriter or underwriters managing the
offering shall determine and advise in writing that such inclusion will not
interfere with the marketing of the securities to be offered by the requesting
Holder or Holders. Any Holder or Holders intending to request a registration
pursuant to Section 7.2(a) shall notify each other Holder of such request at
least thirty (30) days prior to making the request and shall permit each such
other Holder to join such request provided that such other Holder, within
fifteen (15) days of receipt of such notification, so indicates his or her
intention in writing to the Holder or Holders from which such notification was
received. ABIOMED, if requested, shall provide reasonable assistance in such
notification process. If the underwriter managing such an offering shall
determine that the number of Shares
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proposed to be included would interfere with the marketing of the same, then the
number of Shares proposed to be included in such registration statement shall be
reduced to the extent deemed appropriate by such managing underwriter pro rata
among the Holders joining in such request in proportion to the number of Shares
then held by each, giving effect to the provisions of the last two sentences of
Section 7.3 below. ABIOMED shall have the right once per request to defer for a
reasonable period (not to exceed six (6) months) the filing of any registration
statement requested hereunder if, in the reasonable judgment of ABIOMED's Board
of Directors, such registration would materially interfere with or materially
and adversely affect the aftermarket of any recently completed public offering,
or any then existing negotiations for financing arrangements of ABIOMED, or any
material business transaction then pending or being negotiated, or any
arrangement or plan of ABIOMED, then pending or being negotiated in good faith,
relating to any acquisition, disposition, merger or similar transaction.
7.3. INCIDENTAL REGISTRATION. If ABIOMED for itself or any of its
security holders shall at any time or times after the first anniversary of the
date hereof and prior to the seventh anniversary of the date hereof determine to
register under the Securities Act any shares of Common Stock in an underwritten
public offering (other than (a) the registration of an offer and sale of
securities to employees of, or other persons providing services to ABIOMED
pursuant to an employee or similar benefit plan, registered on Form S-8 or
comparable form; or (b) relating to a merger, acquisition or other transaction
of the type described in Rule 145 under the Securities Act or comparable rule,
registered on Form S-4 or similar form), ABIOMED will notify each Holder in each
case of such determination at least twenty (20) days prior to the filing of such
registration statement, and upon the request of a Holder given in writing within
ten (10) days after the date of such notice, ABIOMED will use commercially
reasonable efforts as soon as practicable thereafter to cause any of the Shares
specified by such Holder to be included in such registration statement.
Notwithstanding the foregoing, if the managing underwriter determines and
advises in writing that the inclusion of all Shares of such requesting Holders
and all shares of ABIOMED's Common Stock to be offered by ABIOMED and by Other
Holders, whether covered by requests for registration or otherwise included,
would interfere with the marketing of the securities to be sold by ABIOMED, or
if the registration is at the request of a person or persons with a right to
require registration, by that person or persons, then the number of shares of
Common Stock otherwise to be included in the registration statement by Holders
and Other Holders shall be reduced as follows: (i) there shall first be excluded
shares proposed to be included by Other Holders not possessing legal rights to
include the same pursuant to this section or any similar provision; and (ii) any
further reduction shall be pro rata among such Holders and Other Holders (having
such legal rights) in proportion to the number of shares as to which
registration is requested by each; provided, however, that there shall be no
reduction in the number of shares to be included therein (x) by ABIOMED or (y)
if the registration is at the request of a person or persons with a right to
require such registration, by that person or persons. For purposes of making any
such reduction, each holder (whether a Holder or Other Holder) which is a
partnership, together with the affiliates, partners and retired partners of such
holder, the estates and family members of any such partners and retired partners
and of their spouses, and any trusts for the benefit of any of the foregoing
persons shall be deemed to be a single holder and any pro rata reduction with
respect to such holder shall be based upon the aggregate amount of Shares sought
to be sold by all entities and individuals so included in such holder, and the
aggregate reduction so allocated to such holder shall be allocated among the
entities and individuals included in such
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<PAGE> 16
holder in such manner as such partnership may reasonably determine. If the
managing underwriter determines and advises in writing that the inclusion in the
registration statement of any shares of Common Stock to be sold by stockholders
of ABIOMED would interfere with the marketing of the securities to be sold by
ABIOMED, no notice need be given to any Holder pursuant to the first sentence of
this section and no Holder will have the right to include its Shares in such
registration statement.
7.4. CONDITIONS OF OBLIGATIONS TO REGISTER SHARES. As conditions to
ABIOMED's obligation hereunder to cause a registration statement to be filed or
Shares to be included in a registration statement, the Holder shall provide such
information and execute such documents as may reasonably be required in
connection with such registration.
7.5. REGISTRATION PROCEDURES. If and whenever ABIOMED is required
by the provisions of this Article 7 to use commercially reasonable efforts to
include any of the Shares in a registration statement filed under the Securities
Act, ABIOMED shall as expeditiously as possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Shares and use commercially reasonable efforts to cause
such registration statement to become effective.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective
until the Shares covered thereunder have been sold.
(c) Secure the designation and quotation of the Shares on
Nasdaq or any national securities exchange on which the Common Stock is then
listed.
(d) Furnish to each Holder such number of copies of the
prospectus contained in such registration statement (including each preliminary
prospectus), in conformity with the requirements of the Securities Act, and such
other documents as such Holder may reasonably request in order to facilitate the
disposition of the Shares owned by such Holder.
(e) Use commercially reasonable efforts to register or qualify
the Shares covered by such registration statement under the securities or "blue
sky" laws of such jurisdictions as each selling Holder shall reasonably request,
and do any and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition of the Shares
owned by such Holder in such jurisdictions during the period specified in
Section 7.5(b), provided that ABIOMED shall not be required in connection
herewith to execute a general consent to service of process in any jurisdiction.
(f) Notify each Holder immediately of any Shares covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus contained in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
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existing, and as promptly as practicable, prepare, file and furnish to the
Holder a reasonable number of copies of a supplement or an amendment to such
prospectus as may be necessary so that such prospectus does not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; provided, however, that ABIOMED may
delay preparing, filing and distributing any such supplement or amendment if
ABIOMED determines in good faith that such supplement or amendment might, in the
reasonable judgment of ABIOMED (i) interfere with or affect the negotiation or
completion of a transaction that is being contemplated by ABIOMED (whether or
not a final decision has been made to undertake such transaction) or (ii)
involve initial or continuing disclosure obligations that are not in the best
interests of ABIOMED's stockholders at such time; provided, further, that (x)
ABIOMED will give notice (a "STANDSTILL NOTICE") of any such delay no less than
five (5) business days prior to such delay, (y) such delay shall not extend for
a period of more than fifteen (15) business days without the written consent of
the Holder and (z) ABIOMED may utilize such delay no more than once in each
calendar year. Each Holder agrees, upon receipt of a Standstill Notice,
forthwith to cease making offers and sales of the Shares pursuant to the
registration statement or deliveries of the prospectus contained therein and to
return to ABIOMED, for modification and exchange, the copies of such prospectus
not theretofore delivered by such Holder; provided that ABIOMED shall forthwith
prepare and deliver to such Holder after such delay a reasonable number of
copies of any supplement to or amendment of such prospectus that may be
necessary so that such prospectus does not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing.
(g) Use commercially reasonable efforts to prevent the
issuance of any stop order or other order suspending the effectiveness of such
registration statement and, if such an order is issued, to obtain the withdrawal
at the earliest possible time and to notify the Holder of the issuance of such
order and the resolution thereof.
(h) Furnish to the Holder and any Underwriter of the Holder's
Shares, on the date that such registration statement becomes effective, (i) an
opinion, dated such date, of outside counsel representing ABIOMED (and
reasonably acceptable to the Holder) addressed to the Holder as to the
effectiveness of the registration statement and its compliance as to form with
the requirements of the Securities Act and such other matters as may be
reasonably requested by the Holder (including, if such registration statement
relates to an underwritten public offering, such additional matters as are
customarily included in opinions delivered by company counsel in underwritten
public offerings) and (ii) in the case of an underwriting, a letter, dated such
date, from ABIOMED's independent certified public accountants, in form and
substance as is customarily given by independent certified public accounts to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holder.
(i) Subject to the Holder entering into a confidentiality
agreement reasonably acceptable to ABIOMED, provide the Holder and its
representatives the opportunity to conduct a reasonable inquiry of ABIOMED's
financial and other records during normal business hours and make available its
officers, directors and employees for questions regarding information which the
Holder may reasonably request in order to fulfill any due diligence obligation
on its part.
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<PAGE> 18
(j) Permit counsel for the Holder to review such registration
statement and all amendments and supplements thereto a reasonable period of time
prior to the filing thereof with the SEC.
(k) In the event of an underwritten public offering of the
Shares, enter into and perform its obligations under an underwriting agreement,
in usual and customary form reasonably acceptable to ABIOMED, with the
underwriters of such offering and to use its best efforts to cause the
conditions to the underwriters' performance thereunder to be met.
7.6. DESCRIPTION OF EXPENSES. All expenses incurred by ABIOMED in
complying with any of the foregoing provisions of this Section 7, including
without limitation all federal and state registration, qualification and filing
fees, printing expenses, fees and disbursements of counsel to ABIOMED, and
accountants' fees and expenses incident to or required by any such registration
are herein called "REGISTRATION EXPENSES." All underwriting discounts and
selling commissions applicable to the sale of Shares hereunder and the fees and
disbursements of one counsel to the Holders with respect to any registration of
the Shares hereunder are herein called "SELLING EXPENSES." If ABIOMED is
required by the provisions of this Article 7 to use commercially reasonable
efforts to effect the registration of any of the Shares under the Securities
Act, the Registration Expenses and Selling Expenses in connection with such
registration shall be borne as follows:
(a) All Registration Expenses shall be borne by ABIOMED.
(b) Selling Expenses shall be borne pro rata among the Holders
participating in the registration, except that each Holder shall bear the
expenses of any separate counsel retained by it.
7.7. INDEMNIFICATION.
In the event that ABIOMED registers under the Securities Act
any Shares held by a Holder:
(a) ABIOMED agrees to indemnify and hold harmless such Holder,
each person, if any, who controls such Holder within the meaning of the
Securities Act, any Underwriter offering or selling the Holder's Shares and any
person controlling such Underwriter, against any and all loss, liability or
expense arising out of or based upon any untrue statement or alleged untrue
statement of a material fact in any related registration statement, prospectus
or preliminary prospectus or any omission or alleged omission of any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, unless
such statement or omission was (i) made in reliance upon information furnished
in writing by any such Holder, Underwriter or controlling person specifically
for inclusion therein or (ii) contained in a preliminary prospectus and
corrected in a final or amended prospectus if such Holder, Underwriter or
controlling person received notice of such final or amended prospectus prior to
the effective date of the registration statement but failed to deliver a copy of
the final or amended prospectus at or prior to the confirmation of the sale of
the Shares to the person asserting such loss, claim, damage or liability, in any
case where such delivery is required by the Securities Act.
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(b) The obligations of ABIOMED under Sections 7.2 and 7.3 with
respect to any Holder are subject to the following conditions: (i) that each
Holder whose Shares are to be included in any registration referred to in this
Article 7 agrees, in writing, prior to the filing of such registration or
filing, to indemnify and hold harmless ABIOMED and each person, if any, who
controls ABIOMED within the meaning of the Securities Act, against any and all
loss, liability or expense arising out of or based upon any untrue statement or
alleged untrue statement of a material fact in any related registration
statement, prospectus or preliminary prospectus or any omission or alleged
omission of any material fact required to be stated therein or necessary to make
the statements therein not misleading, but only with reference to statements or
omissions made in reliance upon a statement in writing furnished by or on behalf
of such Holder for inclusion therein; provided, however, that the liability of
each Holder to so indemnify shall be limited to the amount received by such
Holder on the sale of his or her Shares pursuant to such registration statement,
and (ii) if such registration relates to an underwritten public offering by
ABIOMED, that each such Holder enters into an underwriting agreement in usual
and standard form (including a "lock-up" not exceeding 180 days of Shares not
being sold in the underwritten offering) respecting such offering and uses its
best reasonable efforts to cause the conditions to the Underwriters' performance
thereunder to be met.
(c) Each Party entitled to indemnification under this Section
7.7 (the "INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 7.7 unless and to the extent that such failure
results in the forfeiture of substantive rights or defenses by the Indemnifying
Party. The Indemnified Party may participate in such defense at such party's
expense; provided, however, that the Indemnifying Party shall pay such expense
if, in the opinion of counsel to the Indemnified Party, representation of such
Indemnified Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between the
Indemnified Party and any other party represented by such counsel. No
Indemnifying Party, in the defense of any such claim or litigation shall, except
with the consent of each Indemnified Party, consent to entry of any judgment or
enter into any settlement that does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such Indemnified Party of a release
from all liability in respect of such claim or litigation and the Indemnifying
Party shall not be required to indemnify any Indemnified Party for any amount
paid or payable by such Indemnified Party in settlement of any claim or
litigation without such consent of the Indemnifying Party, which consent shall
not be unreasonable withheld.
ARTICLE 8. CONFIDENTIALITY
In connection with the due diligence investigation of ABIOMED by
Genzyme and Genzyme's status as a substantial stockholder of ABIOMED and in the
course of discussing projects in the field of minimally invasive cardiac surgery
that the Parties may jointly
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develop, fund and commercialize, the Parties acknowledge that they have been or
may be given access to confidential information of the other Party. For purposes
of this Agreement, the term "Confidential Information" means any information
relating to the scientific and business affairs of either Party, regardless of
whether such information is specifically designated as confidential and
regardless of whether such information is in written, oral, electronic, or other
form. Such Confidential Information may include, without limitation, trade
secrets, know-how, inventions, technical data or specifications, testing
methods, business or financial information, research and development activities,
product and marketing plans, and customer and supplier information.
8.1. NON-DISCLOSURE OBLIGATIONS. With respect to all Confidential
Information furnished by one party (the "DISCLOSING PARTY") to the other (the
"RECEIVING PARTY"), the Receiving Party agrees that it shall:
(a) maintain such Confidential Information in strict
confidence, at least to the same extent as the Receiving Party maintains the
confidence of its own information of like nature;
(b) not disclose or permit the disclosure of such Confidential
Information to any persons other than to its directors, officers, employees,
agents, consultants and service providers who need to know such Confidential
Information and who are obligated to maintain the confidential nature of such
Confidential Information;
(c) use such Confidential Information only for purposes
related to the ongoing business relationship between the Parties and not use any
Confidential Information for its own benefit or for the benefit of any other
person or business entity; and
(d) allow its directors, officers, employees, agents, and
other representatives to reproduce the Confidential Information only to the
extent necessary to effect the purposes set forth herein, with all such
reproductions being considered Confidential Information.
8.2. EXCEPTIONS TO NON-DISCLOSURE OBLIGATIONS. The obligations of
the Receiving Party under Section 8.1 above shall not apply to the extent that
the Receiving Party can demonstrate (with the Receiving Party having the burden
of proof) that certain Confidential Information:
(a) was in the public domain prior to the time of its
disclosure;
(b) entered the public domain after the time of its disclosure
through means other than an unauthorized disclosure resulting from an act or
omission by the Receiving Party;
(c) was independently developed or discovered by the Receiving
Party without use of the Confidential Information;
(d) is or was disclosed to the Receiving Party at any time,
whether prior to or after the time of its disclosure under this Agreement, by a
third party having no obligation of confidentiality with respect to such
Confidential Information; or
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(e) is required to be disclosed to comply with applicable laws
or regulations, or with a court or administrative order, provided that the
Disclosing Party receives prior written notice of such disclosure to permit it
to seek a protective order against such disclosure, and in the absence of such
protective order, that the Receiving Party takes all reasonable and lawful
actions to obtain confidential treatment for such disclosure and, if possible,
to minimize the extent of such disclosure.
8.3. OWNERSHIP OF CONFIDENTIAL INFORMATION. The Receiving Party
agrees that the Disclosing Party (or any third party entrusting its own
Confidential Information to the Disclosing Party) is and shall remain the
exclusive owner of the Confidential Information disclosed by the Disclosing
Party and all patent, copyright, trademark, trade secret, and other intellectual
property rights in such Confidential Information or arising therefrom. No
option, license, or conveyance of such rights to the Receiving Party is granted
or implied under this Agreement. If any such rights are to be granted to the
Receiving Party, such grant shall be expressly set forth in a separate written
instrument.
8.4. DESTRUCTION OF CONFIDENTIAL INFORMATION. Upon the later of (a)
transfer of all of the Shares or (b) the termination by either Party of any
ensuing business arrangement between the Parties that is conducted without the
benefit of a further agreement governing the treatment of Confidential
Information, the Receiving Party shall return to the Disclosing Party all
originals, copies, and summaries of documents, materials, and other tangible
manifestations of Confidential Information in any form or media, including
formal and informal notes and memoranda, in the possession or control of the
Receiving Party, except that the Receiving Party may retain one copy of such
Confidential Information in the possession of its legal counsel solely for the
purpose of monitoring its obligations under this Agreement.
8.5. MATERIAL INSIDE INFORMATION. The Receiving Party further
acknowledges that it may receive material inside information regarding the
Disclosing Party that has not been generally disclosed to the public in the
course of its investigation and agrees to treat such information as Confidential
Information. The Receiving Party further understands that if it receives such
material inside information, it may not trade, directly or indirectly, in the
securities of the Disclosing Party until such time as such information is no
longer material or is otherwise disclosed to the public.
8.6. TERMS OF THIS AGREEMENT. The Parties agree that the public
announcement of the execution of this Agreement shall take the form of a press
release mutually agreeable to the Parties and, from and after the date hereof,
each Party shall be entitled to make or publish any statement limited to the
contents of such press release. Except as permitted by the foregoing provisions,
each Party hereby agrees not to disclose any terms or conditions of this
Agreement to any third party without the prior consent of the other Party;
provided, however, that each Party will give the other Party the opportunity to
review and comment on any disclosure that may be required by law.
Page 27 of 33 Pages
<PAGE> 22
ARTICLE 9. JOINT DEVELOPMENT AND COLLABORATIONS
ABIOMED and Genzyme shall continue to attempt diligently to identify
projects in the field of minimally invasive cardiac surgery that the Parties can
jointly develop, fund and commercialize.
ARTICLE 10. MISCELLANEOUS
10.1. ASSIGNMENT. This Agreement may not be assigned or otherwise
transferred by any Party without the consent of the other Party, which consent
shall not be unreasonably withheld. Notwithstanding the foregoing, Genzyme's
rights under Article 7 shall inure to the benefit of each Holder (as defined in
Section 7.1) of the Shares. Any purported assignment in violation of this
Section 10.1 shall be void. Any permitted assignee shall assume all obligations
of its assignor under this Agreement in writing.
10.2. SEVERABILITY. Each Party hereby agrees that it does not intend to
violate any public policy, statutory or common laws, rules, regulations, treaty
or decision of any government agency or executive body thereof of any country or
community or association of countries. Should one or more provisions of this
Agreement be or become invalid, the Parties hereto shall substitute, by mutual
consent, valid provisions for such invalid provisions, which valid provisions in
their economic effect are sufficiently similar to the invalid provisions that it
can be reasonably assumed that the Parties would have entered into this
Agreement with such valid provisions. In case such valid provisions cannot be
agreed upon, the invalidity of one or several provisions of this Agreement shall
not affect the validity of this Agreement as a whole, unless the invalid
provisions are of such essential importance to this Agreement that it is to be
reasonably assumed that the Parties would not have entered into this Agreement
without the invalid provisions.
10.3. NOTICES. Any consent, notice or report required or permitted to
be given or made under this Agreement by one of the Parties hereto to the other
shall be in writing, delivered personally or by facsimile (and promptly
confirmed by personal delivery or courier) or courier, postage prepaid (where
applicable), addressed to such other Party at its address indicated below, or to
such other address as the addressee shall have last furnished in writing to the
addressor in accordance with this Section 10.3, and shall be effective upon
receipt by the addressee.
If to ABIOMED, Inc.
ABIOMED: 33 Cherry Hill Drive
Danvers, Massachusetts 01923
Attention: President
Facsimile: (508) 777-8411
with a copy to: Brown Rudnick Freed & Gesmer, P.C.
One Financial Center
Boston, Massachusetts 02111
Attention: Philip J. Flink, Esq.
Facsimile: (617) 856-8201
Page 28 of 33 Pages
<PAGE> 23
If to Genzyme Corporation
Genzyme: One Kendall Square
Cambridge, Massachusetts 02139
Attention: President
Facsimile: (617) 374-7423
with a copy to: Genzyme Corporation
One Kendall Square
Cambridge, Massachusetts 02139
Attention: Chief Legal Counsel
Facsimile: (617) 252-7553
10.4. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts.
10.5. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the Parties with respect to the subject matter hereof. All
express or implied agreements and understandings, either oral or written,
heretofore made are expressly merged in and made a part of this Agreement. This
Agreement may be amended, or any term hereof modified, only by a written
instrument duly executed by the Parties. Each of the Parties hereby acknowledges
that this Agreement is the result of mutual negotiation and therefore any
ambiguity in their respective terms shall not be construed against the drafting
Party.
10.6. HEADINGS. The captions to the several Articles and Sections
hereof are not a part of this Agreement, but are merely guides or labels to
assist in locating and reading the several Articles and Sections hereof.
10.7. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Page 29 of 33 Pages
<PAGE> 24
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first set forth above.
ABIOMED, Inc.
By: /s/ David M. Lederman
-------------------------------------------
Title: President and Chief Executive Officer
----------------------------------------
GENZYME CORPORATION
By: /s/ Peter Wirth
-------------------------------------------
Title: Executive Vice President
----------------------------------------
Page 30 of 33 Pages
<PAGE> 1
EXHIBIT B
Page 31 of 33 Pages
<PAGE> 2
Directors of Genzyme
- --------------------
Set forth below is the name, present principal occupation or employment
and the name, principal business and address of any corporation or other
organization in which such employment is conducted of each director of Genzyme.
Unless otherwise indicated, each director is a citizen of the United States.
Henri A. Termeer
Chairman of the Board, President and Chief Executive Officer
Genzyme Corporation
One Kendall Square
Cambridge, Massachusetts 02139
Citizenship: The Netherlands
Constantine E. Anagnostopoulos
Managing General Partner
Gateway Associates (venture capital limited partnership)
800 Maryland Avenue, Suite 1190
St. Louis, Missouri 63105
Douglas A. Berthiaume
President and Chief Executive Officer
Waters Corporation (high technology manufacturer of products used for
analysis and purification)
34 Maple Street
Milford, Massachusetts 01757
Henry E. Blair
Chief Executive Officer
Dyax Corporation
P.O. Box 648
275 Mill Way
Barnstable, Massachusetts 02630
Robert J. Carpenter
President and Chief Executive Officer
VacTex, Inc.
70 Walnut Street
Wellesley, Massachusetts 02181
Charles L. Cooney
Professor of Chemical and Biochemical Engineering
Massachusetts Institute of Technology
25 Ames Street
Building 66-Room 472
Cambridge, Massachusetts 02139
Page 32 of 33 Pages
<PAGE> 3
Henry R. Lewis
Chairman of the Board
Delphax Systems
35 Clover Street
Belmont, Massachusetts 02178
Executive Officers of Genzyme
Set forth below is the name and present principal occupation of each of
the executive officers of Genzyme. Unless otherwise indicated, each executive
officer is a citizen of the United States and has as his principal business
address One Kendall Square, Cambridge, Massachusetts 02139.
Henri A. Termeer
Chairman of the Board, President and Chief Executive Officer
Citizenship: The Netherlands
Earl M. Collier, Jr.
Executive Vice President
Geoffrey F. Cox, Ph.D.
Executive Vice President, Diagnostic Products, Genetics,
Pharmaceuticals and Manufacturing Operations
Citizenship: United Kingdom
David D. Fleming
Group Senior Vice President, Diagnostic Products and Genetics
John V. Heffernan
Senior Vice President, Human Resources
David J. McLachlan
Executive Vice President, Finance; Chief Financial Officer
Richard A. Moscicki, M.D.
Senior Vice President, Clinical, Medical and Regulatory Affairs;
Chief Medical Officer
Gregory D. Phelps
Executive Vice President
Alan E. Smith, Ph.D.
Senior Vice President, Research; Chief Scientific Officer
Citizenship: United Kingdom
G. Jan van Heek
Executive Vice President
Citizenship: The Netherlands
Peter Wirth, Esq.
Executive Vice President and Chief Legal Officer
Page 33 of 33 Pages
