<PAGE>
As filed with the Securities and Exchange Commission on March 30, 1995
Registration 33-89740
-----
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
REGISTRATION STATEMENT
on FORM S-3
CONSTITUTING
AMENDMENT NO. 1
to
FORM S-2
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ABIOMED, Inc.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware
------------------------------
(State or other jurisdiction of incorporation or organization)
04-2743260
---------------------
(I.R.S. Employer Identification No.)
33 Cherry Hill Drive
Danvers, Massachusetts 01923
(508) 777-5410
--------------
(Address, including zip code, and
telephone number, including area code, of
registrant's principal executive offices)
John F. Thero
33 Cherry Hill Drive
Danvers, Massachusetts 01923
(508) 777-5410
--------------
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
It is respectfully requested that the Commission send copies
of all notices, orders and communications to:
Donald E. Paulson, Esquire
Brown, Rudnick, Freed & Gesmer
One Financial Center
Boston, Massachusetts 02111
___________________
<PAGE>
Approximate date of commencement of proposed
sales to the public: At any time after the
Registration Statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delay or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. [ X ]
CALCULATION OF ADDITIONAL REGISTRATION FEE
<TABLE>
<CAPTION>
_____________________________________________________________________________
Title of Each Additional Proposed Proposed
Class of Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered Per Share(1) Offering Price Fee
_____________________________________________________________________________
<S> <C> <C> <C> <C>
Common stock, 41,427 $6.25 $258,919 $100.00
------ ---- ------- ------
$.01 par value
</TABLE>
_____________________________________________________________________________
(1) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933.
___________________
The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
<PAGE>
ABIOMED, INC.
Cross Reference Sheet Pursuant to Item 501 of Regulation S-K
Registration Statement Item and Caption............... Caption in Prospectus
--------------------------------------- ---------------------
1. Forepart of the Registration Statement
and Outside Front Cover of Prospectus............. Facing Page; Cross
Reference Sheet; Outside
Front Cover
2. Inside Front and Outside Back Cover Pages
of Prospectus..................................... Available Information;
Incorporation By
Reference; Table of
Contents
3. Summary Information, Risk Factors and Ratio
of Earnings to Fixed Charges...................... Prospectus Summary; Risk
Factors
4. Use of Proceeds................................... Use of Proceeds
5. Determination of Offering Price................... *
6. Dilution.......................................... Dilution
7. Selling Security Holders.......................... Selling Stockholder
8. Plan of Distribution.............................. Plan of Distribution
9. Description of Securities to be Registered........ *
10. Interests of Named Experts and Counsel............ Experts; Legal Matters
11. Material Changes.................................. *
12. Incorporation of Certain Information
by Reference...................................... Incorporation of Certain
Documents by
Reference
________________
*Not Applicable.
<PAGE>
Subject to Completion, Dated March 30, 1995
Prospectus
----------
451,427 SHARES
-------
[Logo]
ABIOMED, INC.
Common Stock
($0.01 Per Share)
_____________________
All 451,427 shares of Common Stock (the "Shares") of ABIOMED, Inc. (the
"Company") covered by this Prospectus are issued and outstanding shares which
may be offered and sold from time to time by Abiomed Limited Partnership (the
"Partnership"), or its distributees (the "Selling Stockholder"). The Shares
were issued to the Partnership in satisfaction of the Company's obligation to
pay certain unpaid cumulative minimum royalties to the Partnership under the
terms of an Option to Purchase Developed Technology dated September 27, 1985.
See "Selling Stockholder".
The Common Stock is traded on the Nasdaq National Market (the "NMS")
under the symbol ABMD. On March 29, 1995, the closing sale price of the Common
Stock on the NMS was $6.375.
The Shares may be offered through any of several methods, including
ordinary brokerage transactions or block transactions on the NMS or in the
over-the-counter market, at market prices, or in privately negotiated
transactions at prices agreed upon by the parties. Alternatively, the Shares
may be distributed by the Partnership to its limited partners, to be held or
sold by them. See "Plan Of Distribution".
The Company will not receive any of the proceeds from the sale of the
Shares covered by this Prospectus, but will bear all expenses incurred in
effecting the registration of such Shares, including all registration and
filing fees, "blue sky" fees, printing expenses, and legal fees for counsel
for the Company. The Selling Stockholder will bear all brokerage expenses or
commissions, if any, applicable to sale of the Shares.
_____________________
The Common Stock offered hereby involves a high degree of risk. See
"Risk Factors".
_____________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
MARCH __, 1995
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copies at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 or at
its regional offices located at Citicorp Center, 500 West Madison Street, (Suite
1400), Chicago, Illinois 60661, and Suite 1300, Seven World Trade Center, New
York, New York 10048. Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates.
The Common Stock of the Company is included for quotation on the Nasdaq
National Market under the symbol "ABMD". The reports, proxy statements and
other information filed by the Company with the Commission are also available
for inspection at the offices of the National Association of Securities
Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
This Prospectus, which constitutes part of a registration statement
(herein, together with all exhibits thereto, referred to as the "Registration
Statement") filed by the Company with the Commission under the Securities Act
of 1933 (the "Securities Act"), omits certain of the information contained in
the Registration Statement. Reference is hereby made to the Registration
Statement for further information with respect to the Company and the
securities offered hereby. Statements contained herein concerning provisions
of documents are necessarily summaries of such documents, and each statement
is qualified in its entirety by reference to the applicable document filed
with the Commission.
The Company undertakes to provide without charge to each person to whom
a copy of this Prospectus has been delivered, on the written or oral request of
such person, a copy of any or all of the documents that have been or may be
incorporated in this Prospectus by reference, other than exhibits to such
documents. Requests for such documents should be directed to Kristin T. Hurley,
Executive Assistant, ABIOMED, Inc., 33 Cherry Hill Drive, Danvers, Massachusetts
01923 (telephone number: (508) 777-5410).
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission are
incorporated into this Prospectus by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
March 31, 1994, as amended by Form 10-K/A.
(2) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended June 30, 1994, September 30, 1994 and December 31,
1994.
(3) The Company's proxy statement with respect to its Annual Meeting of
Stockholders held on August 10, 1994.
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<PAGE>
(4) The description of the Company's Common Stock contained in a
registration statement on Form 8-A filed under the Exchange Act,
including the portions of all amendments or reports filed for the
purpose of updating such description heretofore filed with the
Commission.
In addition, all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof
and prior to the filing of a post-effective amendment hereto which indicates
that all securities offered herein have been sold or which deregisters all
securities offered herein then remaining unsold, shall be deemed to be
incorporated herein by reference and to be part hereof from the filing date of
such documents.
Statements in documents incorporated by reference shall be deemed
modified by statements herein. Statements so modified shall constitute part of
the Prospectus only as so modified.
______________________________________________________________________________
TABLE OF CONTENTS
<TABLE>
<S> <C>
Available Information ............................................... 2
Incorporation of Documents by Reference ............................. 2
Prospectus Summary .................................................. 4
Risk Factors ........................................................ 7
Use of Proceeds ..................................................... 11
Selling Stockholder ................................................. 11
Plan of Distribution ................................................ 13
Legal Opinions ...................................................... 13
Experts ............................................................. 13
</TABLE>
______________________________________________________________________________
-3-
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and consolidated financial statements and notes thereto appearing
elsewhere in this Prospectus and in the documents incorporated herein by
reference.
THE COMPANY
ABIOMED(R), Inc. (the "Company") is a developer, manufacturer and
marketer of medical and dental devices and is a leader in the research and
development of cardiac support systems. The Company includes three separate
operating divisions: ABIOMED R&D, Inc., ABIOMED Cardiovascular, Inc., and
ABIODENT\, Inc.
ABIOMED R&D, Inc. is dedicated to scientific and engineering research
and development of solutions to a variety of medical needs, with expertise in
such areas as, but not limited to, electro-mechanical systems, cardiac
physiology, fluid mechanics, electronics (hardware and software), plastics
processing and optical physics. The R&D group is primarily funded by research
grants and contracts from U.S. Government agencies. Technologies and devices
under development by the Company include the SupraCor(TM) Intra-Arterial Cardiac
Support System, the Total Artificial Heart, the Body Lead Analyzer, the
Pediatric Pump, the Vascular Laser Welder and others as described further in the
Company's Form 10-K and Forms 10-Q, herein incorporated by reference.
ABIOMED Cardiovascular, Inc. and ABIODENT, Inc. manufacture, market and
support products based on technology initially developed by the R&D Group now
comprising ABIOMED R&D, Inc. The primary cardiovascular product is a
bi-ventricular cardiac assist device, the BVS-5000\ (the "BVS-5000\"). This
sophisticated but easy to use Class III device is employed by cardiac surgeons
to save lives by providing patients' ailing hearts with full assist as an
external temporary artificial heart, assuming, on a temporary basis, the
complete pumping function of the heart until their natural hearts recover their
normal function. In November 1992, the BVS-5000 became the first cardiac assist
device to receive pre-market approval ("PMA") from the FDA for domestic
marketing. The Company's only dental product (the "PerioTemp(TM)") is a device
for early screening of periodontal disease through the measurement of small
temperature differences around the pockets where teeth meet the gums.
The Company is a Delaware corporation. It commenced operations in 1981.
The Company's principal offices are located at 33 Cherry Hill Drive, Danvers,
Massachusetts 01923, and its telephone number is (508) 777-5410.
RISK FACTORS
The Common Stock offered hereby involves a high degree of risk. See
"Risk Factors".
-4-
<PAGE>
THE OFFERING
Type of Security .................. Common Stock $.01 par value
Shares to be sold ................. 451,427 shares by the Selling
Stockholder
Shares outstanding(1) ............. 6,925,763 shares
(1) Excludes 487,080 shares of common Stock reserved for issuance upon
exercise of outstanding options.
-5-
<PAGE>
SUMMARY FINANCIAL INFORMATION(3)
(in thousands, except the footnotes and per share data)
<TABLE>
<CAPTION>
Nine Months
Years Ended March 31, Ended
December 31,
---------------------------------------------------- ----------------------
Statements of 1990 1991 1992 1993 1994 1993 1994
Operations Data: ---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Revenues $4,449 $3,788 $3,928 $4,049 $7,212 $5,412 $6,881
Net Loss (1,933) (6,605) (5,085) (3,893) (1,983) (1,524) (336)
Per share net
loss (1) (0.36) (1.08) (0.79) (0.60) (0.31) (0.24) (0.05)
</TABLE>
<TABLE>
<CAPTION>
______________________________________________________________________________________________________________
March 31, December 31, 1994
---------------------------------------------------- ----------------------
As
Balance Sheet Data: 1990 1991 1992 1993 1994 Actual Adjusted (2)
---- ---- ---- ---- ---- ------ --------
<S> <C> <C> <C> <C> <C> <C> <C>
Working Capital $25,343 $23,152 $18,801 $10,727 $ 6,043 $ 6,355 $ 6,355
Total Assets 27,665 25,790 21,257 17,504 15,426 14,876 14,486
Debt to Abiomed Limited
Partnership 0 3,724 3,805 3,820 3,773 3,558 0
Total Liabilities 1,251 4,588 4,976 5,044 4,837 4,614 1,056
Stockholders
Investment 26,414 21,202 16,281 12,460 10,589 10,262 13,430
</TABLE>
________________________________________________________________________________
(1) The weighted average number of Common and Common Share Equivalents
outstanding was 5,423,541, 6,143,728, 6,397,241, 6,440,828 and 6,461,234 for
the fiscal years 1990, 1991, 1992, 1993 and 1994, respectively, and 6,458,194
and 6,474,089 for the nine month periods ended December 31, 1993 and 1994,
respectively.
(2) Adjusted to reflect the issuance of Common Shares distributed in
satisfaction of $3,490,000 in Net Minimum Royalty Obligation, of which a
portion is owed to subsidiaries of the Company and netted against the
Company's $390,000 investment in the Partnership.
(3) Operating data for the years ended March 31 and Balance Sheet data as of
March 31 are derived from the Company's audited financial statements included
in the Company's Form 10-K incorporated by reference herein. Amounts for the
nine months ended December 31 and as of December 31 are unaudited. These
amounts are derived from the Company's unaudited consolidated financial
statements.
-6-
<PAGE>
RISK FACTORS
HISTORY OF OPERATING LOSSES; ACCUMULATED DEFICIT AND ANTICIPATED FUTURE
LOSSES
The Company has incurred net losses since 1987. As of December 31, 1994 the
Company had an accumulated deficit of approximately $23 million. Although
losses have declined each year since 1991, there can be no assurance that the
Company will be able to achieve significant commercial revenue or
profitability in the future. The Company is in the development stage with
several of its potential products. Further research and development of these
products, including clinical trials, and introduction of these products to
market will require significant additional expenditures which could increase
operating losses. Whether the Company achieves profitability will depend upon
a number of factors, including its ability to increase sales of its present
products, successful development of new products, obtaining required
approvals, and successful manufacturing and marketing of these new products.
There can be no assurance that the new products will be clinically successful
or that the Company will ever commercialize its new products or achieve
profitability.
LIMITED MANUFACTURING AND MARKETING EXPERIENCE
The Company's product and service revenues are dominated by sales of the BVS-
5000 product line, representing greater than ninety percent of such revenues.
The Company received FDA pre-market approval to market this product in the
United States in November 1992. Since FDA approval, the Company has been
marketing and selling the BVS-5000 console to hospitals and other medical
centers and training doctors and nurses of these hospitals and medical centers
on use of the device. The Company considers itself to still be in the early
stages of marketing the BVS-5000 in the United States. Continued new orders
and reorders of the product are likely to be inconsistent and can not be
assured. The Company has relied on third party distributors for international
sales and distribution, and the Company has very limited direct experience
with sales and marketing outside the United States.
Although the Company has manufactured product in sufficient quantities and
quality to support recent levels of product sales, the Company has limited
manufacturing experience. There can be no assurance that the Company can
manufacture present and future products in sufficient quantity and quality to
support desired future revenue growth.
MARKET ACCEPTANCE; REIMBURSEMENT; HEALTH CARE REFORM
Market acceptance of medical devices by doctors, medical institutions and
insurers, including the Company's present and future products, is heavily
dependent on clinical benefit to patients and related cost. The Company's
future products have not been presented to the market and, accordingly,
acceptance of such products with respect to clinical benefit and cost is
unknown. Market acceptance and insurance reimbursement for these products
cannot be assured.
The Company sells its primary products to doctors and medical institutions who
are typically reimbursed for use of such product by government health
administration authorities, private health insurers and other organizations.
-7-
<PAGE>
The Company's ability to generate revenues from the sale of its products
depends in part on the extent to which reimbursement for the cost of such
products is available to the doctors and medical institutions. The Company
believes that virtually all government health agencies and private health
insurers currently recognize and reimburse doctors and medical institutions
for the types of surgical procedures in which the BVS-5000 is typically
involved. The level of reimbursement varies according to a variety of
factors, including the insurer, location, medical procedure classification and
cost. For example, Medicare reimburses for the surgical procedures in which
the BVS-5000 is utilized, and incrementally reimburses doctors for implant and
explant of the BVS-5000. However, Medicare does not incrementally reimburse
medical institutions for implant or explant of the BVS-5000, whereas certain
private payor insurance companies provide incremental reimbursement to both
doctors and medical institutions. The sufficiency of such reimbursement to
doctors and medical institutions cannot be assured.
Proposals for significant health care reform are expected to continue to
affect health care in the United States and international markets where the
Company sells or plans to sell its products. Many of the proposed domestic
reforms seek to control the escalation of healthcare costs through changes in
reimbursement policies and otherwise. The Company cannot at this time assess
the impact that various proposals may have on future operating results because
of the uncertainties surrounding any foreseeable changes, although some of the
proposals, if enacted, could potentially have a material adverse effect on the
Company's business.
STRINGENT GOVERNMENT REGULATION
The Company's products are subject to extensive regulation by the federal Food
and Drug Administration ("FDA") and, in some jurisdictions, by state and
foreign government authorities. In particular, the Company must obtain
specific clearance from the FDA before it can market future products, or
enhancements to present products, in the United States. Although the Company
has all FDA approvals needed to market the BVS-5000 and PerioTemp, there can
be no assurance that additional clearances sought by the Company will be
granted or that FDA review will not involve delays and added cost which
adversely affect the marketing and sale of future products and enhancements.
Current FDA enforcement policy prohibits the promotion or labeling of approved
medical devices for unapproved uses. The Company is also required to continue
to adhere to the manufacturing, testing, control, labeling, documentation and
post-market product surveillance requirements of the FDA. These Good
Manufacturing Procedures, as regulated by the FDA, and subject to periodic
change and review by the FDA, may have a material impact on the Company's
business. Recently, the FDA has pursued a more rigorous enforcement program
to ensure that regulated businesses, like the Company's, comply with
applicable laws and regulations. Medical device laws are also in effect in
many of the foreign countries where the Company does or seeks to do business.
Federal, state and foreign regulations regarding the manufacture and sale of
medical devices are subject to future change.
POTENTIAL INADEQUACY OF PRODUCT LIABILITY INSURANCE
The use of the Company's products entail an inherent risk of adverse effect
which could expose the Company to product liability claims. Although exposure
of Class III devices, such as the BVS-5000, to product liability claims have
-8-
<PAGE>
historically been mitigated by the nature of the devices, there can be no
assurance that the Company would have sufficient resources to satisfy any
liability resulting from such claims, that the Company's $5 million of
insurance coverage would be adequate to protect the Company against potential
liabilities, that such insurance will continue to be available at acceptable
costs, if at all, or that a product liability claim would not materially
adversely affect the business or financial condition of the Company.
DEPENDENCE ON SOLE SOURCES OF SUPPLY
The Company relies on outside vendors to supply certain components used in the
BVS-5000. Certain of these components of the BVS-5000 are supplied by sole
source vendors and custom made for the Company. In addition, certain of these
components are supplied from single sources due to quality considerations,
costs or constraints imposed by regulatory authorities. There are relatively
few additional sources of supply for such components and establishing
additional or replacement suppliers for such components cannot be accomplished
quickly. In the past, certain suppliers have announced that, due to
government regulation or in an effort to reduce potential product liability
exposure, they intend to limit or terminate sales of certain products to the
medical industry. Although the Company does not expect any interruption of its
product production due to the lack of available supplies, there can be no
assurances that, if such an interruption were to occur, the Company would be
able to find suitable alternative supplies at reasonable prices. The
Company's inability to obtain acceptable components in a timely manner or find
suitable replacements would have a material adverse effect on the Company's
ability to manufacture the BVS-5000, and therefore on its business and
financial condition.
DEPENDENCE ON PATENTS AND PROPRIETARY RIGHTS
The Company relies upon the law of trade secrets, patent protection and
unpatented proprietary know-how to protect its technology.
The Company owns numerous United States and foreign patents and has numerous
patent applications pending. The Company's success will depend in part on its
ability to obtain and maintain patent protection for products and processes,
to preserve its trade secrets and to operate without infringing the
proprietary rights of third parties. No assurance can be given that any
patents in addition to those held by the Company will be issued, that the
scope of any patent protection will exclude competitors or that any of the
Company's patents will be held valid if subsequently challenged. Further,
there can be no assurance that others will not independently develop similar
products, duplicate the Company's products or design products that circumvent
any patents used by the Company.
The Company also protects its proprietary technology in part by entering into
confidentiality agreements with industry partners and consultants and both
confidentiality and non-competition agreements with employees. There can be
no assurance that these agreements will not be breached, that the Company will
have adequate remedies for any breach, or that the Company's trade secrets and
proprietary know-how will not otherwise become known or be independently
discovered by competitors.
-9-
<PAGE>
DEPENDENCE ON KEY PERSONNEL
The Company is highly dependent on the principal members of its scientific,
sales, and management staff, the loss of whose service could have a material
adverse effect on the Company. Competition among medical device companies for
highly skilled scientific, sales and management personnel is intense. There
can be no assurance that the Company will be able to attract and retain all
personnel necessary for the development of its business.
COMPETITION AND TECHNOLOGICAL CHANGE
Competition in the cardiac assist market is intense and expected to increase.
The mechanical cardiac assist device market, a segment of which is addressed
by the BVS-5000, is believed to be a rapidly emerging market. Although the
BVS-5000 is the only device approved by the FDA for the treatment of post
cardiotomy shock, many of the companies developing or marketing products in
the cardiac assist market have substantially greater financial, product
development, sales and marketing resources and experience than the Company.
Competitors may develop superior products or products of similar quality at
the same or lower prices. Although no other current product has FDA approval
for treatment of post cardiotomy shock, products of other companies are sold
to similar audiences and compete for budgeted funds of customers. In the
future, the Company may experience increased competitive pricing pressure that
may adversely affect unit prices and sales levels and innovation in medical
technology and biotechnology may reduce the size of the potential markets for
the Company's products.
RELIANCE ON GOVERNMENT CONTRACTS
The Company relies heavily on external funding for its basic research and
development, primarily through government research contracts and grants. Such
funding has been responsible for the initial development for the majority of
the Company's present products and products under development. In particular,
in September 1993, the Company was awarded by the National Heart, Lung and
Blood Institute, a two phase, seven year contract of $13.5 million for
continued development of the total artificial heart. The Company anticipates
that it will continue to seek government contracts and grants to support
development efforts. Certain of the Company's government contracts have been
completed or are nearing completion. All such government contracts contain
provisions making them terminable at the convenience of the government. There
can be no assurance that any of the government contracts being sought by the
Company will be forthcoming or that the Government will not terminate any of
the Company's existing contracts.
FUTURE CAPITAL NEEDS AND UNCERTAINTY OF ADDITIONAL FINANCING
Although the Company believes that its existing resources will be sufficient
to meet its operating expenses for at least the next 24 months, there can be
no assurance that the Company will not need to seek additional capital at an
earlier date.
The Company is working on the research and development of several products.
Before many of these products can be brought to market, the Company expects
that it may be necessary to significantly increase expenditures related to
research and development, including costs of clinical trials. Expenditures
-10-
<PAGE>
required for development of new products could exceed the Company's resources.
To adequately fund such development, the Company may seek additional funding
through public or private financing, including equity financing, from time to
time. Future financing for these purposes, whether obtained through financial
markets, arrangements with corporate partners or other sources, may result in
dilution to holders of the Company's Common Stock.
VOTING CONTROL AND LIMITED VOTING RIGHTS
Except in certain cases, each share of Common Stock is entitled to one vote
and each share of Class A Common Stock is entitled to ten votes, with both
classes voting together as a single class. Dr. David M. Lederman beneficially
owns 1,428,000 shares of Class A Common Stock and Dr. Param I. Singh
beneficially owns the remaining 612,000 share of Class A Common Stock.
Together, they control a majority of the total voting power of the Company
both prior to and after this offering. If at any time Dr. David M. Lederman
should sell one or more shares of the Class A Common Stock, all Class A Common
Stock will be converted to Common Stock and the voting rights of such stock
reduced to one vote per share. The voting power of the Class A Common Stock
may discourage or preclude certain transactions by the Company, whether or not
beneficial to public stockholders, including matters with respect to election
of directors and matters with respect to mergers or acquisitions, if any, and
such voting power may discourage other investors from investing in the Common
Stock.
POSSIBLE VOLATILITY OF SHARE PRICE
There has been a history of significant volatility in the market price for
shares of the Company's stock and shares of other companies in the medical
products and biomedical technology fields. Factors such as the announcement
of new products and the achievement of developmental milestones or FDA
approvals by the Company or its competitors have caused and could cause the
price of the Company's Common Stock to fluctuate significantly. Moreover,
although there has been a public trading market for the Common Stock since
1987, on many days there has been a relatively limited number of shares which
have been traded by the public, resulting in further volatility of the stock
price. Additionally, the spread between the ask and bid prices for the
Company's stock on the NMS market has been relatively wide, potentially
discouraging investor trading in the Company's Common Stock.
USE OF PROCEEDS
The proceeds from the sale of the Shares offered hereby will be the
property of the Selling Stockholder and no part of the proceeds will be
received by the Company.
SELLING STOCKHOLDER
In 1985, the Company sponsored the formation of the Partnership to
finance the development of the BVS-5000 and the SupraCor~ (formerly the
"ICS"). One wholly-owned subsidiary of the Company is the sole general
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<PAGE>
partner of the Partnership with a 1% interest and another wholly-owned
subsidiary has a 9.9% special limited partner interest. Under the Option to
Purchase Developed Technology between the Company and the Partnership dated
September 27, 1985 (the "Purchase Option"), the Company was required to pay
the Partnership royalties of 5.5% of sales plus 50% of amounts the Company
receives from sales or sublicenses of the BVS-5000, SupraCor and certain
related technology through August 3, 2000, up to a maximum amount of $16
million with respect to the BVS-5000 and $33.8 million with respect to
SupraCor. In addition, the Company was obligated to pay cumulative minimum
annual royalties, which are subject to deferral under certain circumstances.
At March 31, 1995 the Company would have owed the Partnership cumulative minimum
annual royalties, accrued for the five years ending March 31, 1995, net of
previous payments to the Partnership, of $9,164,000, and the Partnership would
have owed the Company approximately $5,674,182 for a loan and related interest
at a bank's prime rate plus 1% and for certain direct operating expenses of the
Partnership, so that the Company would have owed the Partnership a net amount of
approximately $3,489,818 (the "Net Minimum Royalty Obligation").
On March 29, 1995, the Company issued 451,427 Shares of Common Stock to
the Partnership in satisfaction of the Net Minimum Royalty Obligation, less the
portion of the Net Minimum Royalty Obligation allocable to the interest of the
subsidiaries of the Company holding a 10.9% interest in the Partnership. Those
subsidiaries and the Partnership agreed to waive payment by the Company of the
portion of the Net Minimum Royalty Obligation attributable to the subsidiaries'
interest in the Partnership. In accordance with the terms of the Purchase
Option, the Shares were valued based upon the average closing price on NMS for
the 10 trading days immediately preceding the date of issuance.
The following table sets forth certain information concerning the
beneficial ownership of the Company's Common Stock by the Selling Stockholder.
<TABLE>
<CAPTION>
Number of Shares Number of Number of Shares
Name of Beneficially Owned of Shares Beneficially Owned
Selling Stockholder at March 29, 1995 Offered Hereby After Offering (1)
------------------- ------------------ -------------- ------------------
<S> <C> <C> <C>
Abiomed Limited 451,427 451,427 - 0 -
Partnership
</TABLE>
___________
(1) Assumes the sale of all the shares of Common Stock registered hereby,
although the Selling Stockholder has made no arrangements to sell the Shares at
this time.
PLAN OF DISTRIBUTION
Depending upon market conditions and other factors, the Partnership may
sell any of the shares of Common Stock from time to time. Alternatively, the
Partnership may elect to distribute the Shares to its limited partners in kind.
To the extent that any of the Shares so distributed are not freely resalable by
one or more limited partners (under Rule 144(k) under the Exchange Act, or
otherwise), at the request of any limited partner the Company
-12-
<PAGE>
will amend this Prospectus to name such limited partner as Selling
Stockholder.
The price and manner of sale of the Shares are in the sole discretion of
the Selling Stockholder. The Shares may be offered through any of several
methods, such as ordinary brokerage transactions or block transactions through
the NMS in the over-the-counter market at market prices or in privately
negotiated transactions at prices agreed upon by the parties. Neither the
Company, the Partnership, nor, to the best of the Company's knowledge, any of
the limited partners of the Partnership, has any agreement, arrangement or
understanding with any broker or dealer entered into prior to the effective date
of the Registration Statement of which this Prospectus is part with respect to
the sale of the Common Stock offered hereby.
LEGAL OPINIONS
Certain legal matters relating to the Shares offered hereby are being
passed upon for the Company by Brown, Rudnick, Freed & Gesmer, Boston,
Massachusetts. Donald E. Paulson, who is also Secretary of the Company, and
certain other employees of corporate partners of Brown, Rudnick, Freed &
Gesmer hold in the aggregate approximately 23,700 shares of Common Stock of
the Company.
EXPERTS
The consolidated financial statements and supplemental schedules of the
Company as of March 31, 1994 and 1993 and for each of the three years in the
period ended March 31, 1994, incorporated by reference in this Prospectus,
have been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto and are included herein in
reliance upon the authority of said firm as experts in giving said reports.
-13-
<PAGE>
PART II
-------
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses incurred by the Company in connection with the issuance and
distribution of the securities being registered are as follows:
Amount*
------
Securities and Exchange Commission Registration Fee.............$ 1,060
State Blue Sky Filing Fees...................................... 1,985
Legal Fees and Expenses......................................... 15,000
Accounting Fees and Expenses.................................... 5,000
Blue Sky Fees and Expenses...................................... 1,000
Transfer Agent's Fees and Expenses.............................. 500
Miscellaneous................................................... 455
-------
Total.......................................................$ 25,000
-------
_______
* All amounts are estimated except SEC Registration Fee.
Item 15. Indemnification of Directors and Officers.
The Company's Certificate of Incorporation provides that, to the fullest
extent permitted by Delaware law, no director of the Company shall be personally
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, notwithstanding any other provisions of the law.
However, a director shall be liable to the extent required by law (i) for any
breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) in respect of certain unlawful
dividend payments or stock redemptions or repurchases or (iv) for any
transactions from which the director derives an improper personal benefit. The
effect of the provision in the Certificate of Incorporation is to eliminate the
rights of the Company and its stockholders (through derivative suits on behalf
of the Company) to recover monetary damages against a director for breach of
fiduciary duty as a director, including breaches resulting from grossly
negligent behavior in the context of transactions involving a change of control
of the Company or otherwise, except in the situations described in clauses (i)
through (iv) above. These provisions will not alter the liability of directors
under Federal security laws or their liability as officers or employees of the
Company.
II-1
<PAGE>
The Company has indemnification agreements with each of its present and
former directors providing for the maximum indemnification provided by
Delaware law. The Company has entered into similar agreements with certain
of the Company's officers and key employees who are not directors. The
Company's directors and officers are also covered by an insurance policy
against certain liabilities that might be incurred in connection with the
performance of their duties.
The indemnification agreements provide that the Company will pay certain
amounts incurred by a director or officer in connection with any civil or
criminal action or proceeding and specifically including actions by or in the
name of the Company (derivative suits) where the individuals's involvement is by
reason of the fact that he or she is or was a director or officer. Under the
indemnification agreements, a director or officer will not receive
indemnification if the director is found not to have acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Company. The agreements provide a number of procedures and presumptions used
to determine the director's or officer's right to indemnification and include a
requirement that, in order to receive an advance of expenses, the director or
officer must submit an undertaking to repay any expenses advanced on the
director's or officer's behalf that are later determined the director was not
entitled to receive. The Company believes that indemnification agreements such
as the form adopted by the Company's Board of Directors offer directors and
officers significant assurance that they will be indemnified for actions taken
in good faith and in a manner they believe to be in the best interests of the
Company. The Company knows of no pending or threatening litigation against a
director or officer for which a claim for indemnification under the
indemnification agreement would be made.
ITEM 16. EXHIBITS.
See the Exhibits Index included immediately preceding the exhibits to
this Registration Statement.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes to file, during any period
in which offers or sales are being made, a post-effective amendment to
this registration statement 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;
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-2
<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the 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 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 Act and will be governed
by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that is has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1
on Form S-3 to the Registration Statement on Form S-2 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Town of Danvers,
Commonwealth of Massachusetts, on the 29th day of March, 1995.
-----
ABIOMED, Inc.
/s/ David M. Lederman
----------------------------
David M. Lederman,
President, Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ David M. Lederman Chairman of the Board, March 29, 1995
---------------------- Chief Executive Officer,
David M. Lederman President and Director
(Principal Executive Officer)
/s/ John F. Thero Vice President Finance March 29, 1995
---------------------- and Administration
John F. Thero (Principal Financial and
Accounting Officer)
* Director March 29, 1995
----------------------
W. Gerald Austen
* Director March 29, 1995
----------------------
William G. Davis
II-4
<PAGE>
* Director March 29, 1995
----------------------
Paul Fireman
* Director March 29, 1995
----------------------
John F. O'Brien
* Director and March 29, 1995
----------------------
Param I. Singh Vice President Corporate
Development
* Director March 29, 1995
----------------------
Henri A. Termeer
*By: /s/ John F. Thero
----------------------
John F. Thero, as
attorney-in-fact
II-5
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit Sequential Page No.
----------- ---------------------- -------------------
(4) Instruments defining the rights of
Security Holders, including
Indentures.
(a) Specimen Certificate of Common
Stock - filed as Exhibit 4.01
to Registration Statement on
Form S-1 (Registration No. 33-
14861) (the "1987 Registration
Statement") *
(5) Opinion of Brown, Rudnick, Freed &
Gesmer 22
(23) Consent of Arthur Andersen LLP 25
(24) Power of Attorney *
_____________
* In accordance with Rule 411(c) under the Securities Act of 1933,
as amended, reference is made to the documents previously filed
with the Securities and Exchange Commission, which documents are
hereby incorporated by reference.
<PAGE>
[LOGO OF BROWN RUDNICK FREED & GESMER APPEARS HERE] EXHIBIT 5
---------
March 29, 1995
ABIOMED, Inc.
33 Cherry Hill Drive
Danvers, MA 01923
Re: Registration Statement on Form S-3
File NO. 33-89740
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to ABIOMED, Inc., a Delaware corporation (the
"Company"), in connection with the preparation and filing with the Securities
and Exchange Commission of a Registration Statement on Form S-3 (the
"Registration Statement") pursuant to which the Company is registering under the
Securities Act of 1933, as amended (the "Act"), a total of 451,427 shares of
Common Stock, $.01 par value, (the "Registered Shares") for resale by Abiomed
Limited Partnership, a Massachusetts limited partnership (the "Partnership"), or
its distributees. The Registered Shares were issued to the Partnership on March
29, 1995 pursuant to the Option to Purchase Developed Technology dated September
27, 1985 between the Company's wholly owned subsidiary ABIOMED Cardiovascular,
Inc., a Massachusetts corporation, and the Partnership (the "Option Agreement").
This opinion is being rendered in connection with the filing of the Registration
Statement. Unless otherwise indicated, capitalized terms used herein shall have
the meanings ascribed thereto in the Registration Statement.
For purposes of this opinion, we have assumed, without any investigation,
(i) the legal capacity of each natural person, (ii) the full power and authority
of each entity and person other than the Company to execute, deliver and perform
each document heretofore executed and delivered or hereafter to be executed and
delivered and to do each other act heretofore done or hereafter to be done by
such entity or person, (iii) the due authorization by each entity or person
other than the Company of each document heretofore executed and delivered or
hereafter to be executed and delivered and to do each other act heretofore done
or to be done by such entity or person, (iv) the due execution and delivery by
each entity or person other than the Company of each document heretofore
executed and delivered or hereafter to be executed and
<PAGE>
[LOGO OF BROWN RUDNICK FREED & GESMER APPEARS HERE]
ABIOMED, Inc.
March 29, 1995
Page Two
delivered by such entity or person, (v) the legality, validity, binding effect
and enforceability as to each entity or person other than the Company of each
document heretofore executed and delivered or hereafter to be executed and
delivered and of each other act heretofore done or hereafter to be done by such
entity or person, (vi) the genuineness of each signature on, and the
completeness of each document submitted to us as an original, (vii) the
conformity to the original of each document submitted to us as a copy, (viii)
the authenticity of the original of each document submitted to us as a copy,
(ix) the completeness, accuracy and proper indexing of all governmental and
judicial records searched and (x) no modification of any provision of any
document, no waiver of any right or remedy and no exercise of any right or
remedy other than in a commercially reasonable and conscionable manner and in
good faith.
In connection with this opinion, we have examined (a) the Option Agreement
and (b) the corporate minute books of the Company, including the Certificate of
Incorporation and By-laws of the Company contained therein (collectively, the
"Documents").
The opinions expressed herein are based solely upon (i) our review of the
Documents, (ii) discussions with those of our attorneys who have devoted
substantive attention to the matters contained herein, and (iii) such review of
published sources of law as we have deemed necessary.
Our opinions contained herein are limited to the laws of the Commonwealth
of Massachusetts, the general corporate laws of the State of Delaware and the
Federal law of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Registered Shares are validly issued, fully paid and nonassessable.
We understand that this opinion is to be used in connection with the
Registration Statement. We consent to the filing of this opinion as an Exhibit
to said Registration Statement and to the reference to our firm wherever it
appears in the Registration Statement, including the prospectus constituting a
part thereof and any amendments thereto. This opinion may be used in
<PAGE>
[LOGO OF BROWN RUDNICK FREED & GESMER APPEARS HERE]
ABIOMED, Inc.
March 29, 1995
Page Three
connection with the offering of the Registered Shares only while the
Registration Statement, as it may be amended from time to time, remains in
effect.
Very truly yours,
BROWN, RUDNICK, FREED & GESMER
By: BROWN, RUDNICK, FREED & GESMER, P.C.
By: /s/ David H. Murphree
--------------------------------------
David H. Murphree, a Member
duly authorized
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our reports dated May 19, 1994
included in ABIOMED, Inc.'s Form 10-K for the year ended March 31, 1994 and to
all references to our Firm included in this Registration Statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
March 27, 1995
