<PAGE>
As filed with the Securities and Exchange Commission on September 20, 1996
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
CAMBRIDGE HEART, INC.
- -------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 13-3679946
- -------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1 Oak Park Drive, Bedford, MA 01730
- -------------------------------------------------------------------------------
(Address of principal executive offices) (Zip code)
Amended and Restated 1993 Incentive and Non-Qualified Stock Option Plan
1996 Equity Incentive Plan
1996 Employee Stock Purchase Plan
1996 Director Option Plan
- -------------------------------------------------------------------------------
(Full title of the plans)
Jeffrey M. Arnold
President and Chief Executive Officer
Cambridge Heart, Inc.
1 Oak Park Drive, Bedford, MA 01730
- -------------------------------------------------------------------------------
(Name and address of agent for service)
(617) 271-1200
- -------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
Exhibit Index is on Page II-7
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
===================================================================================================
| | Proposed | Proposed |
Title of | | Maximum | Maximum |
Securities | Amount | Offering | Aggregate | Amount of
to be | to be | Price Per | Offering | Registration
Registered | Registered (#)|Share($)(1)| Price($) | Fee ($)
- ----------------------------------------------------------------------------------------------------
1993 Amended and | | | |
Restated Incentive| | | |
and Non-Qualified | | | |
Stock Option Plan | | | |
Common Stock | | | |
(Par Value $.001) | 1,688,663 | $10.06 | $16,987,950 | $ 5,857.91
- ----------------------------------------------------------------------------------------------------
| | | |
1996 Equity | | | |
Incentive Plan | | | |
Common Stock | | | |
(Par Value $.001) | 1,000,000 | $10.06 | $10,060,000 | $ 3,468.97
- ----------------------------------------------------------------------------------------------------
1996 Employee | | | |
Stock Purchase | | | |
Plan | | | |
Common Stock | | | |
(Par Value $.001) | 100,000 | $10.06 | $ 1,006,000 | $ 346.09
- ----------------------------------------------------------------------------------------------------
1996 Director | | | |
Option Plan | | | |
Common Stock | | | |
(Par Value $.001) | 100,000 | $10.06 | $ 1,006,000 | $ 346.09
- ----------------------------------------------------------------------------------------------------
| | | |
TOTAL | 2,888,663 | $10.06 | $29,059,950 | $ 10,020.68
====================================================================================================
</TABLE>
(1) Price estimated solely for the purpose of calculating the
registration fee pursuant to Rules 457(c) and (h) under the
Securities Act of 1933, and based on the average of the high
and low prices of the Registrant's Common Stock on September
16, 1996 as quoted on the Nasdaq National Market.
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance
with the requirements of Form S-8 which relate to the Registrant's
Common Stock offered pursuant to the Company's 1993 Amended and
Restated Incentive and Non-Qualified Stock Option Plan, 1996 Equity
Incentive Plan, 1996 Employee Stock Purchase Plan and 1996 Director
Option Plan.
2
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 is included in
documents sent or given to participants in the 1993 Amended and
Restated Incentive and Non-Qualified Stock Option Plan, 1996 Equity
Incentive Plan, 1996 Employee Stock Purchase Plan and 1996 Director
Option Plan of Cambridge Heart, Inc., a Delaware corporation (the
"Registrant"), pursuant to Rule 428(b)(1) of the Securities Act of
1933, as amended (the "Securities Act").
3
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
------------------------------------------------
The following documents, which were filed with the Securities
and Exchange Commission (the "Commission"), are incorporated in this
Registration Statement by reference:
(1) The Prospectus, dated August 2, 1996, constituting
part of the Registration Statement on Form S-1 filed with the
Commission by the Registrant (File No. 333-04879).
(2) The description of the common stock of the
Registrant, $.001 par value per share (the "Common Stock"),
contained in the Registration Statement on Form 8-A filed by
the Registrant with the Commission on July 10, 1996 (File No.
0-20991).
(3) The Form 10-Q for the quarter ended June 30, 1996, as
filed with the Commission by the Registrant on September 13,
1996 (File No. 0-20991).
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all shares
of Common Stock offered hereby have been sold or which deregisters
all shares of Common Stock then remaining unsold, shall be deemed to
be incorporated by reference herein and to be part hereof from the
date of the filing of such documents.
Item 4. Description of Securities
--------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
---------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers
------------------------------------------
Article EIGHTH of the Registrant's Amended and Restated
Certificate of Incorporation (the "Certificate of Incorporation)
provides that no director of the Registrant shall be personally
liable for any monetary damages for any breach of fiduciary duty as a
director, except to the extent that the Delaware General Corporation
Law prohibits the elimination of liability of directors for breaches
of fiduciary duty.
Article NINTH of the Certificate of Incorporation provides that
a director or officer of the Registrant (a) shall be indemnified by
the Registrant against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with any litigation or other legal
proceeding (other than an action by or in the right of the
Registrant) brought against him by virtue of his position as a
director or officer of the Registrant if he
II-1
<PAGE>
acted in good faith and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the Registrant, and, with
respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful and (b) shall be indemnified by
the Registrant against all expenses (including attorneys' fees) and
amounts paid in settlement actually and reasonably incurred in
connection with any action by or in the right of the Registrant
brought against him by virtue of his position as a director or
officer of the Registrant if he acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best
interests of the Registrant, except that no indemnification shall be
made with respect to any matter as to which such person shall have
been adjudged to be liable to the Registrant, unless the Court of
Chancery of Delaware determines that, despite such adjudication but
in view of all of the circumstances, he is entitled to
indemnification of such expenses. Notwithstanding the foregoing, to
the extent that a director or officer has been successful, on the
merits or otherwise, including, without limitation, the dismissal of
an action without prejudice, he is required to be indemnified by the
Registrant against all expenses (including attorneys' fees) actually
and reasonably incurred in connection therewith. In the event the
Registrant does not assume the defense of an action in accordance
with the Certificate of Incorporation, expenses shall be advanced to
a director or officer at his request prior to the final disposition
of the matter, provided that he undertakes to repay the amount
advanced if it is ultimately determined that he is not entitled to
indemnification for such expenses.
Indemnification is required to be made unless the Registrant
determines that the applicable standard of conduct required for
indemnification has not been met and must be made if the director or
officer was successful, on the merits or otherwise, in defense of the
matter. In the event of a determination by the Registrant that the
director or officer did not meet the applicable standard of conduct
required for indemnification, or if the Registrant fails to make an
indemnification payment within 60 days after such payment is claimed
by such person, such person is permitted to petition the court to
make an independent determination as to whether such person is
entitled to indemnification. As a condition precedent to the right of
indemnification, the director or officer must give the Registrant
notice of the action for which indemnity is sought, and the
Registrant has the right to participate in such action or assume the
defense thereof.
Article NINTH of the Certificate of Incorporation further
provides that the indemnification provided therein is not exclusive,
and provides that in the event that the Delaware General Corporation
Law is amended to expand the indemnification permitted to directors
or officers the Registrant must indemnify those persons to the
fullest extent permitted by such law as so amended.
Section 145 of the Delaware General Corporation Law provides
that a corporation has the power to indemnify a director, officer,
employee or agent of the corporation and certain other persons
serving at the request of the corporation in related capacities
against amounts paid and other expenses actually and reasonably
incurred in connection with an action or
II-2
<PAGE>
proceeding to which he is or is threatened to be made a party by
reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, and, in any criminal
proceeding, if such person had no reasonable cause to believe his
conduct was unlawful; provided that, in the case of actions brought
by or in the right of the corporation, no indemnification shall be
been made with respect to any matter as to which such person shall
have adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
Item 7. Exemption from Registration Claimed
------------------------------------
Not applicable.
Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
Item 9. Undertakings
-------------
1. The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar
value of securities offered would not exceed that which
was registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table
in the effective Registration Statement.
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
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<PAGE>
provided, however, that paragraphs (i) and (ii) do not apply if
--------- --------
the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
2. The Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be in the
initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Bedford,
Commonwealth of Massachusetts, on September 19, 1996.
CAMBRIDGE HEART, INC.
By: /s/Jeffrey M. Arnold
----------------------------------
Jeffrey M. Arnold
President, Chief Executive Officer
and Director
II-5
<PAGE>
POWER OF ATTORNEY
We, the undersigned officers and directors of Cambridge Heart, Inc.,
hereby severally constitute and appoint Jeffrey M. Arnold, Thomas V.
Hennessey, Jr., and John A. Burgess, Esq., and each of them singly, our
true and lawful attorneys with full power to them, to sign for us and in
our names, in the capacities indicated below, the Registration Statement
filed herewith, and any and all amendments to said Registration Statement
and generally to do all such things in our names and behalf in our
capacities as officers and directors to enable Cambridge Heart, Inc. to
comply with the Securities Act of 1933, as amended, and all requirements of
the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to
said Registration Statement and any and all amendments thereto.
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 dates indicated.
<TABLE>
<CAPTION>
Signature Title (Capacity) Date
---------- ---------------- ----
<S> <C> <C>
/s/Jeffrey M. Arnold President, Chief Executive September 19, 1996
----------------------------------- Officer and Director
Jeffrey M. Arnold (Principal Executive
Officer)
/s/Thomas V. Hennessey, Jr. Vice President Operations, September 19, 1996
----------------------------------- Treasurer and Chief Financial
Thomas V. Hennessey, Jr. Officer
(Principal Financial Officer
and Principal Accounting
Officer)
/s/Marlene Krauss Director September 19, 1996
-----------------------------------
Marlene Krauss
/s/Zachary C. Berk Director September 19, 1996
-----------------------------------
Zachary C. Berk
/s/Richard J. Cohen Director September 19, 1996
-----------------------------------
Richard J. Cohen
/s/M. Fazle Husain Director September 19, 1996
-----------------------------------
M. Fazle Husain
/s/David S. Muller Director September 19, 1996
-----------------------------------
David F. Muller
-----------------------------------
/s/David F. Rollo Director September 19, 1996
-----------------------------------
David F. Rollo
/s/Rolf S. Stutz Director September 19, 1996
-----------------------------------
Rolf S. Stutz
/s/Laurence J. Blumberg, M.D. Director September 19, 1996
-----------------------------------
Laurence J. Blumberg, M.D.
</TABLE>
II-6
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Exhibit Page
*4 Specimen Certificate for Shares of Common Stock,
$.001 par value per share, of the Registrant
5 Opinion of Hale and Dorr, Counsel to
the Registrant
23.1 Consent of Hale and Dorr
(included in Exhibit 5)
23.2 Consent of Price Waterhouse LLP
24 Power of Attorney (included on the
signature page of this Registration
Statement)
----------------------------------
* Previously filed with the Commission as an Exhibit to the Registrant's
Registration Statement on Form S-1, File No. 333-04879, which was
originally filed with the Commission on May 31, 1996 and is incorporated
herein by reference.
II-7
<PAGE>
Exhibit 5
---------
September 19, 1996
Cambridge Heart, Inc.
1 Oak Park Drive
Bedford, MA 01730
Re: 1993 Amended and Restated Incentive and Non-Qualified Stock
------------------------------------------------------------
Option Plan, 1996 Equity Incentive Plan, 1996 Employee Stock
------------------------------------------------------------
Purchase Plan and 1996 Director Option Plan
-------------------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form
S-8 (the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to an aggregate 2,888,663 shares of Common Stock, $.001 par
value per share (the "Shares"), of Cambridge Heart, Inc., a Delaware
corporation (the "Company"), issuable under the Company's 1993 Amended and
Restated Incentive and Non-Qualified Stock Option Plan, 1996 Equity Incentive
Plan, 1996 Employee Stock Purchase Plan and 1996 Director Option Plan
(collectively, the "Plans").
We have examined the Amended and Restated Certificate of Incorporation
of the Company, the By-laws of the Company, and originals, or copies certified
to our satisfaction, of all pertinent records of the meetings of the directors
and stockholders of the Company, the Registration Statement and such other
documents relating to the Company as we have deemed material for the purposes
of this opinion.
In examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies, and the authenticity of the
originals of such latter documents.
Based on the foregoing, we are of the opinion that the Company has duly
authorized for issuance the shares of its Common Stock covered by the
Registration Statement to be issued under the Plans, as described in the
Registration Statement, and such shares, when issued in accordance with the
terms of the Plans, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
/s/Hale and Dorr
HALE AND DORR
<PAGE>
Exhibit 23.2
-------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 24, 1996, except as to the first
paragraph of Note 5 which is as of July 8, 1996, appearing on page F-2 of
Cambridge Heart, Inc.'s Prospectus constituting part of the Registration
Statement on Form S-1 (No. 333-04879).
/s/ Price Waterhouse LLP
- ------------------------
PRICE WATERHOUSE LLP
Boston, Massachusetts
September 19, 1996
