<PAGE>
As filed with the Securities and Exchange Commission on May 11, 2000
Registration Statement No. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
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
incorporation or organization) Identification No.)
1 Oak Park Drive
Bedford, Massachusetts 01730
(781) 271-1200
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------
Jeffrey M. Arnold
Chairman of the Board and Chief Executive Officer
Cambridge Heart, Inc.
1 Oak Park Drive
(781) 271-1200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------
Copies to:
John A. Burgess, Esq.
Steven D. Singer, Esq.
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Tel: (617) 526-6000
Fax: (617) 526-5000
Approximate date of commencement of proposed sale to public: As soon as
practicable after this 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 delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_] 333- .
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_] 333- .
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
<CAPTION>
Proposed
Proposed Maximum
Maximum Aggregate Amount of
Title of Shares to be Amount to be Offering Price Offering Registration
Registered Registered Per Share(1) Price(1) Fee
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par
value per share....... 3,235,930(2) $3.19 $10,322,616 $2,726
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) under the Securities Act and based upon the average of the high
and low prices on the Nasdaq National Market on May 8, 2000.
(2) Includes 574,572 shares of common stock issuable upon the exercise of
common stock purchase warrants. Pursuant to Rule 416, there are also
registered an indeterminate number of shares of common stock which may be
issued pursuant to anti-dilution provisions applicable to the common stock
purchase warrant.
---------------
The Company hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Company 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), shall determine.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and we are not soliciting offers to buy these +
+securities in any jurisdiction where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to completion, dated May 11, 2000
PROSPECTUS
Cambridge Heart, Inc.
3,235,930 SHARES OF COMMON STOCK
-----------
This prospectus relates to registering for resale shares of common stock
previously issued by Cambridge Heart, Inc. in private placements of our common
stock and warrants to purchase our common stock.
We will not receive any proceeds from the sale of the shares.
The selling stockholders identified in this prospectus, or their pledgees,
donees, transferees or other successors-in-interest, may offer the shares from
time to time through public or private transactions at prevailing market
prices, at prices related to prevailing market prices or at privately
negotiated prices.
Our common stock is traded on the Nasdaq National Market under the symbol
"CAMH." On May 10, 2000, the closing sale price of the common stock on Nasdaq
was $3.00 per share.
-----------
Investing in our common stock involves a high degree of risk. See "Risk
Factors" beginning on page 4.
-----------
The Securities and Exchange Commission and state securities regulators have
not approved or disapproved these securities, or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is , 2000.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Prospectus Summary......................................................... 3
The Offering............................................................... 3
Risk Factors............................................................... 4
Special Note Regarding Forward-Looking Information......................... 8
Use Of Proceeds............................................................ 8
Selling Stockholder........................................................ 8
Description Of Our Securities.............................................. 10
Legal Matters.............................................................. 15
Experts.................................................................... 15
Where You Can Find More Information........................................ 15
Incorporation Of Certain Documents By Reference............................ 15
</TABLE>
Cambridge Heart, Inc.'s executive offices are located at 1 Oak Park Drive,
Bedford, MA 01730, our telephone number is (781) 271-1200 and our Internet
address is www.cambridgeheart.com. The information on our Internet website is
not intended to be incorporated by reference in this prospectus. Unless the
context otherwise requires references in this prospectus to "Cambridge Heart,"
"we," "us," and "our" refer to Cambridge Heart, Inc.
The Cambridge Heart logo, CH 2000, Hi-Res and Alternans Test are trademarks
of Cambridge Heart. All other trademarks and service marks are the property of
their respective owners.
We have not authorized anyone to provide you with information different from
that contained or incorporated by reference in this prospectus. The selling
stockholder is offering to sell, and seeking offers to buy, shares of our
common stock only in jurisdictions where offers and sales are permitted. The
information contained in this prospectus is accurate only as of the date of
this prospectus, regardless of the time of delivery of this prospectus or of
any sale of common stock.
<PAGE>
PROSPECTUS SUMMARY
This summary highlights important features of this offering and the
information included or incorporated by reference in this prospectus. This
summary does not contain all of the information that you should consider before
investing in our common stock. You should read the entire prospectus carefully,
especially the risks of investing in our common stock discussed under "Risk
Factors."
Cambridge Heart, Inc.
Cambridge Heart is engaged in the research, development and commercialization
of products for the non-invasive diagnosis of cardiac disease, the leading
cause of death in the United States and many other developed countries. Using
innovative technologies, including our proprietary disposable electrodes, we
are addressing such key problems in cardiac diagnosis as:
. the identification of those at risk of sudden cardiac death, accounting
for approximately 50% of all deaths due to heart attack;
. the early detection of coronary artery disease; and
. the prompt and accurate diagnosis of heart attack.
Our lead product, the CH 2000 System incorporates our proprietary technology
to non-invasively measure extremely low levels of T-wave alternans, a beat-to-
beat alternation in a portion of the electrocardiogram. Clinical research
published to date has demonstrated that by measuring T-wave alternans we can
assess vulnerability to the ventricular arrhythmias responsible for sudden
cardiac death to a degree comparable to electrophysiology testing, the most
accurate invasive test. The CH 2000 System is also able to perform conventional
cardiac stress tests.
Our CH 2000 System and Hi-Resolution electrodes have received 510(k)
clearance from the U.S. Food and Drug Administration for sale in the United
States, have received the CE mark for sale in Europe and have been approved for
sale by the Ministry of Health in Japan. The 510(k) clearance for the CH 2000
System includes the claim that the CH 2000 System can measure T-wave alternans
and the presence of T-wave alternans in patients with known, suspected or at
risk of ventricular tachyarrhythmia predicts increased risk of ventricular
tachyarrhythmia or sudden death.
THE OFFERING
<TABLE>
<S> <C>
Common Stock offered by
selling stockholders... 3,235,930 shares
Use of proceeds......... Cambridge Heart will not receive any proceeds from the
sale of shares in this offering
Nasdaq National Market
symbol................. CAMH
</TABLE>
3
<PAGE>
RISK FACTORS
Investing in our common stock involves a high degree of risk. You should
carefully consider the risks and uncertainties described below before
purchasing our common stock. The risks and uncertainties described below are
not the only ones facing our company. Additional risks and uncertainties may
also impair our business operations. If any of the following risks actually
occur, our business, financial condition or results of operations would likely
suffer. In that case, the trading price of our common stock could fall, and you
may lose all or part of the money you paid to buy our common stock.
Risks Related to Our Operations
We may never generate substantial revenues
We are engaged primarily in the commercialization, manufacture, research and
development of products for the non-invasive diagnosis of heart disease. We
have incurred substantial and increasing net losses through December 31, 1999.
We may never generate substantial revenues or achieve profitability on a
quarterly or annual basis. We believe that our research and development
expenses will increase in the future as we develop additional products and fund
clinical trials of our product candidates. Our research and development
expenses may also increase in the future as we supplement our internal research
and development with additional third party technology licenses and potential
acquisition of complementary products and technologies. We also expect that our
selling, general and administrative expenses will increase significantly in
connection with the continued expansion of our sales and marketing activities.
Revenues generated from the sale of our products will depend upon numerous
factors, including:
. the timing of regulatory actions;
. progress of product development;
. the extent to which our products gain market acceptance;
. varying pricing promotions and volume discounts to customers;
. competition; and
. the availability of third-party reimbursement.
Our technology may never achieve market acceptance
We believe that our future success will depend, in large part, upon the
successful commercialization and market acceptance of our T-wave alternans
technology. Market acceptance will depend upon our ability to demonstrate the
diagnostic advantages and cost-effectiveness of this technology and upon our
ability to obtain third party reimbursement for users of our technology. We can
give no assurance that we will be able to successfully commercialize or achieve
market acceptance of our T-wave alternans technology or that our competitors
will not develop competing technologies that are superior to our technology.
The results of future clinical studies may not support the usefulness of our
technology
We have sponsored and are continuing to sponsor clinical studies relating to
our T-wave alternans technology and Hi-Resolution sensors to establish the
predictive value of such technology. Although studies on high risk patients to
date have indicated that the measurement of T-wave alternans to predict the
vulnerability to ventricular arrhythmia is comparable to electrophysiology
testing, we do not know whether the results of such studies, particularly
studies involving patients who are not high risk, will continue to be
favorable. Any clinical studies or trials which fail to demonstrate that the
measurement of T-wave alternans is at least comparable in accuracy to
alternative diagnostic tests, or which otherwise call into question the cost-
effectiveness, efficacy or safety of our technology, would have a material
adverse effect on our business, financial condition and results of operations.
4
<PAGE>
We may have difficulty responding to changing technology
The medical device market is characterized by rapidly advancing technology.
Our future success will depend, in large part, upon our ability to anticipate
and keep pace with advancing technology and competitive innovations. However,
we may not be successful in identifying, developing and marketing new products
or enhancing our existing products. In addition, there can be no assurance that
new products or alternative diagnostic techniques may be developed that will
render our current or planned products obsolete or inferior. Rapid
technological development by competitors may result in our products becoming
obsolete before we recover a significant portion of the research, development
and commercialization expenses incurred with respect to such products.
We have significant competition from a variety of sources
Competition from competitors' medical devices that diagnose cardiac disease
is intense and likely to increase. We compete with manufacturers of
electrocardiogram stress tests, the conventional method of diagnosing ischemic
heart disease, as well as with manufacturers of other invasive and non-invasive
tests, including EP testing, electrocardiograms, Holter monitors, ultrasound
tests and systems of measuring cardiac late potentials. Many of our competitors
and prospective competitors have substantially greater capital resources, name
recognition, research and development experience and regulatory, manufacturing
and marketing capabilities. Many of these competitors offer broad, well-
established product lines and ancillary services not offered by Cambridge
Heart. Some of our competitors have long-term or preferential supply
arrangements with physicians and hospitals which may act as a barrier to market
entry.
We depend heavily on independent manufacturers' representatives and foreign
distributors
We currently market our products in the United States through a small direct
sales force and independent manufacturers' representatives. We may not be able
to continue to recruit and retain skilled sales management, direct sales
persons or independent manufacturers' representatives. We market our products
internationally through independent distributors. These distributors also
distribute competing products under certain circumstances. The loss of a
significant international distributor could have a material adverse effect on
our business if a new distributor, sales representative or other suitable sales
organization could not be found on a timely basis in the relevant geographic
market. To the extent that we rely on sales in certain territories through
distributors, any revenues we receive in those territories will depend upon the
efforts of our distributors. Furthermore, there can be no assurance that a
distributor will market our products successfully or that the terms of any
future distribution arrangements will be acceptable to us.
Risks Related to the Market for Cardiac Diagnostic Equipment
Our business could be subject to product liability claims
The testing, manufacture, marketing and sale of medical devices entails the
inherent risk of liability claims or product recalls. Although we maintain
product liability insurance in the United States and in other countries in
which we conduct business, including clinical trials and product marketing and
sales, such coverage may not be adequate. Product liability insurance is
expensive and in the future may not be available on acceptable terms, if at
all. A successful product liability claim or product recall could inhibit or
prevent commercialization of the CH 2000 Alternans System or cause a
significant financial burden on Cambridge Heart, or both, and could have a
material adverse effect on our business, financial condition and ability to
market the CH 2000 Alternans System as currently contemplated.
Our business could be adversely affected if we are unable to protect our
proprietary technology
Our success will depend, in large part, on our ability to develop patentable
products, enforce our patents and obtain patent protection for our products
both in the United States and in other countries. However, the patent positions
of medical device companies, including Cambridge Heart, are generally uncertain
and involve
5
<PAGE>
complex legal and factual questions. We can give no assurance that patents will
issue from any patent applications we own or license or that, if patents do
issue, the claims allowed will be sufficiently broad to protect our proprietary
technology. In addition, any issued patents we own or license may be
challenged, invalidated or circumvented, and the rights granted under issued
patents may not provide us with competitive advantages. We also rely on
unpatented trade secrets to protect our proprietary technology, and we can give
no assurance that others will not independently develop or otherwise acquire
substantially equivalent techniques, or otherwise gain access to our
proprietary technology, or disclose such technology or that we can ultimately
protect meaningful rights to such unpatented proprietary technology.
Others could claim that we infringe their intellectual property rights
Our commercial success will depend in part on our neither infringing patents
issued to others nor breaching the licenses upon which our products might be
based. Our licenses of patents and patent applications impose various
commercialization, sublicensing, insurance, royalty and other obligations on
our part. If we fail to comply with these requirements, licenses could convert
from being exclusive to nonexclusive in nature or could terminate.
We could become involved in litigation over intellectual property rights
The medical device industry has been characterized by extensive litigation
regarding patents and other intellectual property rights. Litigation, which
would likely result in substantial cost to us, may be necessary to enforce any
patents issued or licensed to us and/or to determine the scope and validity of
others' proprietary rights. In particular, our competitors and other third
parties hold issued patents and are assumed to hold pending patent applications
which may result in claims of infringement against us or other patent
litigation. We also may have to participate in interference proceedings
declared by the United States Patent and Trademark Office, which could result
in substantial cost, to determine the priority of inventions. Furthermore, we
may have to participate at substantial cost in International Trade Commission
proceedings to abate importation of products which would compete unfairly with
our products.
We may not be able to protect our trade secrets
We rely on confidentiality agreements with our collaborators, employees,
advisors, vendors and consultants. We can give no assurance that these
agreements will not be breached, that we would have adequate remedies for any,
breach or that our trade secrets will not otherwise become known or be
independently developed by competitors. Failure to obtain or maintain patent
and trade secret protection, for any reason, could have a material adverse
effect on Cambridge Heart.
We may not be able to obtain third-party reimbursement
Our revenues currently depend and will continue to depend, to a significant
extent, on sales of the CH 2000 Alternans System. Our ability to successfully
commercialize the CH 2000 Alternans System depends in part on the availability
of, and our ability to obtain, adequate levels of third-party reimbursement for
use of the CH 2000 Alternans System. Reimbursement is not currently available
for the use of the CH 2000 Alternans System for measuring T-wave alternans.
The amount of reimbursement in the United States that will be available for
clinical use of the CH 2000 Alternans System, if any, is uncertain and may
vary. In the United States, the cost of medical care is funded, in substantial
part, by government insurance programs, such as Medicare and Medicaid, and
private and corporate health insurance plans. Third-party payors may deny
reimbursement if they determine that a prescribed device has not received
appropriate FDA or other governmental regulatory clearances, is not used in
accordance with cost-effective treatment methods as determined by the payor, or
is experimental, unnecessary or inappropriate. Our ability to commercialize the
CH 2000 Alternans System successfully will depend, in large part, on the extent
to which appropriate reimbursement levels for the cost of the use of the CH
2000 Alternans System and
6
<PAGE>
associated sensors are obtained from government authorities, private health
insurers and other organizations, such as health maintenance organizations.
We do not know whether reimbursement in the United States or foreign
countries will be available for the CH 2000 Alternans System, or if available,
will not be decreased in the future or that reimbursement amounts will not
reduce the demand for, or the price of, the CH 2000 Alternans System. The
unavailability of third-party reimbursement or the inadequacy of the
reimbursement for medical tests using the CH 2000 Alternans System would have a
material adverse effect on Cambridge Heart.
We have a number of risks associated with the year 2000
Although year 2000 issues have not had a significant impact on our internal
operations or on our products, we may experience interruptions of operations
because of year 2000 problems. Year 2000 problems could require us to incur
unanticipated expenses, and such expenses could have a material adverse effect
on our business, financial condition and results of operations. Furthermore,
the purchasing patterns of customers or potential customers may be affected by
year 2000 issues as companies expend significant resources to correct their
current systems for year 2000 compliance. These expenditures may result in
reduced funds being available to purchase products offered by Cambridge Heart.
Risks Related to Investing in Our Common Stock
The market price of our shares has experienced, and may continue to be subject
to, extreme price and volume fluctuations
The stock market has, from time to time, experienced extreme price and volume
fluctuations. The market prices of the securities of medical-device companies
have been especially volatile, including fluctuations that are often unrelated
to the operating performance of the affected companies. Broad market
fluctuations of this type may adversely affect the market price of our common
stock.
The market price of our common stock has experienced, and may continue to be
subject to be subject to extreme fluctuations due to a variety of factors,
including:
. public announcements concerning us, our competitors or of the medical
device industry;
. fluctuations in operating results;
. introductions of new products or services by us or our competitors;
. changes in analysts' earnings estimates; and
. announcements of technological innovations.
In the past, companies that have experienced volatility in the market price
of their stock have been the object of securities class action litigation. If
we were the object of securities class action litigation, we could incur
substantial costs and experience a diversion of our management's attention and
resources and such securities class action litigation could have a material
adverse effect on our business, financial condition and results of operations.
A third party could be prevented from acquiring your shares of stock at a
premium to the market price because of our anti-takeover provisions
Various provisions of our certificate of incorporation, by-laws and Delaware
law could make it more difficult for a third party to acquire us, even if doing
so might be beneficial to you and our other stockholders.
The future sale of shares of our common stock may negatively affect our stock
price
If our stockholders sell substantial amounts of our common stock, including
shares issuable upon the exercise of outstanding warrants and options,
following this offering, the market price of our common stock
7
<PAGE>
could fall. These sales also might make it more difficult for us to sell equity
securities in the future at a time and price that we deem appropriate.
SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION
This prospectus includes and incorporates forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934. All statements, other than statements of
historical facts, included or incorporated in this prospectus regarding our
strategy, future operations, financial position, future revenues, projected
costs, prospects, plans and objectives of management are forward-looking
statements. The words "anticipates," "believes," "estimates," "expects,"
"intends," "may," "plans," "projects," "will," "would" and similar expressions
are intended to identify forward-looking statements, although not all forward-
looking statements contain these identifying words. We cannot guarantee that we
actually will achieve the plans, intentions or expectations disclosed in our
forward-looking statements and you should not place undue reliance on our
forward-looking statements. Actual results or events could differ materially
from the plans, intentions and expectations disclosed in the forward-looking
statements we make. We have included important factors in the cautionary
statements included or incorporated in this prospectus, particularly under the
heading "Risk Factors", that we believe could cause actual results or events to
differ materially from the forward-looking statements that we make. Our
forward-looking statements do not reflect the potential impact of any future
acquisitions, mergers, dispositions, joint ventures or investments we may make.
We do not assume any obligation to update any forward-looking statements.
USE OF PROCEEDS
We will not receive any proceeds from the sale of shares by the selling
stockholders.
The selling stockholders will pay any underwriting discounts and commissions
and expenses incurred by the selling stockholders for brokerage, accounting,
tax or legal services or any other expenses incurred by the selling
stockholders in disposing of the shares. We will bear all other costs, fees and
expenses incurred in effecting the registration of the shares covered by this
prospectus, including, without limitation, all registration and filing fees,
Nasdaq listing fees and fees and expenses of our counsel and our accountants.
SELLING STOCKHOLDERS
We issued the shares of common stock covered by this prospectus, and the
warrants pursuant to which shares of common stock covered by this prospectus
are issuable, in private placements. The following table sets forth, to our
knowledge, certain information about the selling stockholders as of April 30,
2000.
Beneficial ownership is determined in accordance with the rules of the SEC,
and includes voting or investment power with respect to shares. Shares of
common stock issuable under the warrants that are exercisable within 60 days
after April 30, 2000 are deemed outstanding for computing the percentage
ownership of the person holding the options but are not deemed outstanding for
computing the percentage ownership of any other person. Unless otherwise
indicated below, to our knowledge, the person named in the table has sole
voting and investment power with respect to the shares of common stock. The
inclusion of any shares in this table does not constitute an admission of
beneficial ownership for the person named below.
<TABLE>
<CAPTION>
Shares of Common
Shares of Common Stock Stock to be
Beneficially Owned Beneficially Owned
Prior to Offering Number of Shares After Offering(1)
Name of Selling ------------------------------ of Common Stock -----------------------
Stockholder Number Percentage Being Offered Number Percentage
--------------- ------------- ------------- ---------------- --------- -----------
<S> <C> <C> <C> <C> <C>
Yale University......... 342,856(2) 2.4 342,856(2) 0 0%
Little Wing L.P......... 225,700 1.6% 225,700 0 0%
Cambridge Options....... 180,000(3) 1.2% 180,000(3) 0 0%
</TABLE>
8
<PAGE>
<TABLE>
<CAPTION>
Shares of Common
Shares of Common Stock Stock to be
Beneficially Owned Beneficially Owned
Prior to Offering Number of Shares After Offering(1)
Name of Selling ------------------------------- of Common Stock ----------------------
Stockholder Number Percentage Being Offered Number Percentage
--------------- ------------- ------------- ---------------- ------- ----------
<S> <C> <C> <C> <C> <C>
Rebel Investments &
Co..................... 180,000(4) 1.2% 180,000(4) 0 0%
Nathan Low.............. 197,017(5) 1.4% 197,017(5) 0 0%
Tradewinds Fund Ltd..... 120,000 * 120,000 0 0%
Paul Scharfer........... 163,374(6) 1.1% 163,374(6) 0 0%
Robert L. Swisher, Jr... 136,500(7) * 120,000(7) 16,500 0%
Little Wing L.P. Too.... 82,860 * 82,860 0 0%
Richard B. Stone........ 23,917(8) * 7,917(8) 16,000 0%
Matthew Rebold.......... 30,000(9) * 30,000(9) 0 0%
Amy Newmark............. 24,000(10) * 24,000(10) 0 0%
Jerry Heymann........... 17,143(11) * 17,143(11) 0 0%
Judy W. Stone, M.D...... 10,200(12) * 10,200(12) 0 0%
David Bartash........... 10,000(13) * 10,000(13) 0 0%
Jeff Elliot Margolis.... 539(14) * 539(14) 0 0%
Aurora Capital LLC...... 973(15) * 973(15) 0 0%
Mitchell Sutin.......... 2,088(16) * 2,088(16) 0 0%
Dwight Miller........... 7,982(17) * 7,982(17) 0 0%
Preston Tsao............ 10,254(18) * 10,254(18) 0 0%
The Tail Wind Fund
Ltd.................... 788,717(19) 5.4% 264,924 523,793(19) 3.6%
Special Situations
Private Equity Fund,
L.P.................... 344,846(20) 2.4% 126,846 218,000(20) 1.5%
Special Situations Fund
III, L.P............... 89,823(21) * 32,109 57,714(21) *
Geoffrey H. Galley...... 191,439(22) 1.3% 105,970 85,469(22) *
Cheryl Halpern.......... 17,143(23) * 17,143(23) 0 0%
David S. Hannes......... 17,143(24) * 17,143(24) 0 0%
Norwest Bank North
Dakota, N.A. as Trustee
of the Conmy, Feste,
Hubbard, Corwin &
Brust, Ltd. 401K Profit
Sharing Plan F/B/O
Charles A. Feste....... 25,714(25) * 25,714(25) 0 0%
RLH Options, Inc........ 17,143(26) * 17,143(26) 0 0%
Robert P. Khederian..... 720,000(27) 4.9% 720,000(27) 0 0%
Paul Scharfer........... 208,536(28) 1.4% 45,162 163,374(28) 1.1%
Sunrise Securities
Corp................... 106,014(29) * 45,161(29) 60,853(29) *
AIG Soundshore Holdings
Ltd.................... 88,912(30) * 85,712(30) 3,200 *
</TABLE>
- --------
* Less than one percent.
(1) We do not know when or in what amounts a selling stockholder may offer
shares for sale. The selling stockholders may not sell any or all of the
shares offered by this prospectus. Because the selling stockholders may
offer all or some of the shares pursuant to this offering, and because
there are currently no agreements, arrangements or understandings with
respect to the sale of any of the shares, we can not estimate the number of
the shares that will be held by the selling stockholders after completion
of the offering. However, for purposes of this table, we have assumed that,
after completion of the offering, none of the shares covered by this
prospectus will be held by the selling stockholders.
(2) Includes 57,142 shares of common stock issuable to Yale University within
60 days after April 30, 2000 pursuant to the exercise of warrants.
(3) Includes 30,000 shares of common stock issuable to Cambridge Options
within 60 days after April 30, 2000 pursuant to the exercise of warrants.
(4) Includes 30,000 shares of common stock issuable to Rebel Investments & Co.
within 60 days after April 30, 2000 pursuant to the exercise of warrants.
9
<PAGE>
(5) Includes 28,000 shares of common stock issuable to Mr. Low within 60 days
after April 30, 2000 pursuant to the exercise of warrants and 29,017 shares
of common stock issuable to the Nathan Low Roth IRA within 60 days after
April 30, 2000 pursuant to the exercise of warrants.
(6) Includes 63,374 shares of common stock issuable to Mr. Scharfer within 60
days after April 30, 2000 pursuant to the exercise of warrants.
(7) Includes 20,000 shares of common stock issuable to Mr. Swisher within 60
days after April 30, 2000 pursuant to the exercise of warrants. Mr. Swisher
is also the beneficial owner of 16,500 shares of common stock not being
registered hereby held by the Sooner Profit Sharing Plan of which Mr.
Swisher is Trustee.
(8) Includes 7,917 shares of common stock issuable to Mr. Stone within 60 days
after April 30, 2000 pursuant to the exercise of warrants.
(9) Includes 5,000 shares of common stock issuable to Mr. Rebold within 60
days after April 30, 2000 pursuant to the exercise of warrants.
(10) Includes 4,000 shares of common stock issuable to Ms. Newmark within 60
days after April 30, 2000 pursuant to the exercise of warrants.
(11) Includes 2,857 shares of common stock issuable to Mr. Heymann within 60
days after April 30, 2000 pursuant to the exercise of warrants.
(12) Includes 1,700 shares of common stock issuable to Dr. Stone within 60 days
after April 30, 2000 pursuant to the exercise of warrants.
(13) Consists of 10,000 shares of common stock issuable to Mr. Bartash within
60 days of April 30, 2000 pursuant to the exercise of warrants.
(14) Consists of 539 shares of common stock issuable to Mr. Margolis within 60
days of April 30, 2000 pursuant to the exercise of warrants.
(15) Consists of 973 shares of common stock issuable to Aurora Capital LLC
within 60 days of April 30, 2000 pursuant to the exercise of warrants.
(16) Consists of 2,088 shares of common stock issuable to Mr. Sutin within 60
days of April 30, 2000 pursuant to the exercise of warrants.
(17) Consists of 7,982 shares of common stock issuable to Mr. Miller within 60
days of April 30, 2000 pursuant to the exercise of warrants.
(18) Consists of 10,254 shares of common stock issuable to Mr. Tsao within 60
days of April 30, 2000 pursuant to the exercise of warrants.
(19) Includes 47,619 shares of common stock issuable to The Tail Wind Fund Ltd.
within 60 days after April 30, 2000 pursuant to the exercise of warrants.
(20) Includes 22,800 shares of common stock issuable to Special Situations
Private Equity Fund, L.P. within 60 days after April 30, 2000 pursuant to
the exercise of warrants.
(21) Includes 5,771 shares of common stock issuable to Special Situations Fund
III, L.P. within 60 days after April 30, 2000 pursuant to the exercise of
warrants.
(22) Includes 19,048 shares of common stock issuable to Mr. Galley within 60
days after April 30, 2000 pursuant to the exercise of warrants.
(23) Includes 2,857 shares of common stock issuable to Ms. Halpern within 60
days of April 30, 2000 pursuant to the exercise of warrants.
(24) Includes 2,857 shares of common stock issuable to Mr. Hannes within 60
days of April 30, 2000 pursuant to the exercise of warrants.
(25) Includes 4,285 shares of common stock issuable to Norwest Bank North
Dakota, N.A. as Trustee of the Conmy, Feste, Hubbard, Corwin & Brust, Ltd.
401K Profit Sharing Plan F/B/O Charles A. Feste within 60 days of April 30,
2000 pursuant to the exercise of warrants.
(26) Includes 2,857 shares of common stock issuable to RLH Options, Inc. within
60 days of April 30, 2000 pursuant to the exercise of warrants.
(27) Includes 120,000 shares of common stock issuable to Mr. Khederian within
60 days after April 30, 2000 pursuant to the exercise of warrants.
(28) Includes 63,374 shares of common stock issuable to Mr. Scharfer within 60
days of April 30, 2000 pursuant to the exercise of warrants.
(29) Consists of shares of common stock issuable to Sunrise Securities Corp.
within 60 days after April 30, 2000 pursuant to the exercise of warrants.
(30) Includes 85,712 shares of our common stock issuable to AIG Soundshore
Holdings Ltd. within 60 days of April 30, 2000 upon the exercise of
warrants.
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<PAGE>
DESCRIPTION OF OUR SECURITIES
We are authorized to issue 25,000,000 shares of common stock, $.001 par value
per share of which 14,541,798 were issued and outstanding as of April 17, 2000,
and 2,000,000 shares of undesignated preferred stock, $.001 par value per
share, of which no shares are issued and outstanding. Our common stock is
traded on the Nasdaq National Market under the symbol CAMH.
Common Stock
As of April 17, 2000, there were 14,541,798 shares of common stock
outstanding, held of record by approximately 111 stockholders. Holders of our
common stock are entitled to one vote for each share held on all matters
submitted to a vote of stockholders and do not have cumulative voting rights.
Accordingly, holders of a majority of the shares of common stock entitled to
vote in any election of directors may elect all of the directors standing for
election. Holders of common stock are entitled to receive ratably such
dividends, if any, as may be declared by the board of directors out of funds
legally available therefor, subject to a preferential dividend rights of
outstanding preferred stock. Upon the liquidation, dissolution or winding up of
Cambridge Heart, the holders of common stock are entitled to receive ratably
the net assets of Cambridge Heart available after the payment of all debts and
other liabilities and subject to the prior rights of any outstanding preferred
stock. The outstanding shares of common stock are fully paid and nonassessable.
The rights, preferences and privileges of holders of common stock are subject
to, and may be adversely affected by the rights of the holders of shares of any
series of preferred stock which we may designate and issue in the future.
Pursuant to the terms of a purchase agreement dated June 8, 1999 between
Cambridge Heart and a group of investors led by The Tail Wind Fund Ltd., we
sold an aggregate of 952,380 shares of our common stock to the Tail Wind
investors at a price of $5.25 per share. In addition, we granted the Tail Wind
investors the following rights:
. If, prior to June 8, 2001, we sell any shares of our common stock in a
capital raising transaction at a per share selling price less than the
original per share purchase price paid by the Tail Wind investors, the
original purchase price per share paid by the Tail Wind investors will be
adjusted downward to equal the lower per share purchase price and,
accordingly, the Tail Wind investors will be entitled to receive
additional shares.
. Prior to June 8, 2001, the Tail Wind investors have the right to
participate in any non-public capital raising transaction by Cambridge
Heart.
Pursuant to the terms of the subscription agreements dated October 5, 1999,
October 25, 1999 and January 11, 2000 between Cambridge Heart and each of the
several investors introduced to us by Sunrise Securities Corp., we sold an
aggregate of 2,116,347 shares of our common stock to the Sunrise investors at a
price of $3.50 per share. In addition, we agreed that if, prior to earlier of
one year from the date of this prospectus and the date on which we complete a
sale or sales of our common stock resulting in net proceeds in excess of $4
million, we sell any shares of our common stock in a capital raising
transaction at a per share selling price less than $3.50, then each Sunrise
investor will be entitled to receive additional shares of our common stock
equal to the difference between (A) the quotient obtained by dividing (i) $3.50
by (ii) the lower selling price per share and (B) the number of shares sold to
each Sunrise investor. As a result of the sale of our common stock to the
Sunrise investors, pursuant to the terms of our agreement with the Tail Wind
investors described above, the exercise price per share of the warrants issued
to the Tail Wind investors was reduced to $3.71 per share and we issued an
aggregate of 529,849 additional shares of common stock to the Tail Wind
investors.
Warrants
The Tail Wind Warrants. As part of the purchase agreement between Cambridge
Heart and the Tail Wind investors, we issued warrants that expire on June 9,
2003 to purchase 95,238 shares of our common stock at an exercise price per
share of $7.22. In October 1999, in connection with an additional private
placement of our common stock, the per share exercise price of these warrants
was adjusted downward to $3.71 in accordance with the adjustment provisions
contained in these warrants and described below. As of November 30, 1999, none
of the warrants issued to the Tail Wind investors has been exercised.
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<PAGE>
The per share exercise price of the warrants issued to the Tail Wind
investors is subject to adjustment in certain events including but not limited
to the following:
. if we declare a dividend or make any distribution to shareholders payable
in common stock, subdivide or combine our common stock or reclassify of
our common stock;
. merger, consolidation or reorganization of Cambridge Heart or the sale of
substantially all of our assets; or
. until June 8, 2001, if we sell any shares of our common stock at a price
per share less than the price paid by the Tail Wind investors, the per
share exercise price of the warrants issued to the Tail Wind investors
will be reduced to 110% of that lower price.
The Sunrise Warrants. As part of the subscription agreements dated October 5,
1999, October 25, 1999 and January 11, 2000 between Cambridge Heart and each of
several investors introduced to us by Sunrise Securities Corp., and the sale
agency agreement dated August 16, 1999 between Cambridge Heart and Sunrise
Securities Corp., we issued warrants that expire on October 5, 2004, October
25, 2004 and January 11, 2005 for the purchase of 290,412, 12,857 and 120,000
shares of our common stock, respectively, at a per share exercise price of
$3.50. As part of the fee paid to Sunrise Securities Corp., we issued warrants
that expire on October 5, 1999, October 25, 1999 and January 11, 2005 for the
purchase of an aggregate of 151,305 shares of our common stock at a per share
price of $4.20. As of November 30, 1999, none of the warrants issued to the
Sunrise investors has been exercised.
The per share exercise price of the warrants issued to the Sunrise investors
is subject to adjustment in certain events including but not limited to the
following:
. if we declare a dividend or make any distribution to our shareholders
payable in stock or other securities convertible into stock, subdivide or
combine our common stock or reclassify of our common stock; or
. merger, consolidation or reorganization of Cambridge Heart or the sale of
substantially all of our assets.
Preferred Stock
Our certificate of incorporation authorizes us to issue up to 2,000,000
shares of preferred stock. Under the terms of our certificate of incorporation,
the board of directors is authorized, subject to any limitations prescribed by
law, without stockholder approval, to issue such shares of preferred stock in
one or more series. Each such series of preferred stock shall have such rights,
preferences, privileges and restrictions, including voting rights, dividend
rights, conversion rights, redemption privileges and liquidation preferences,
as shall be determined by the board of directors.
The purpose of authorizing the board of directors to issue preferred stock
and determine its rights and preferences is to eliminate delays associated with
a stockholder vote on specific issuances. The issuance of preferred stock,
while providing desirable flexibility in connection with possible acquisitions
and other corporate purposes, could have the effect of making it more difficult
for a third part to acquire, or of discouraging a third party from acquiring, a
majority of the outstanding voting stock of Cambridge Heart. We have no present
plans to issue any shares of preferred stock.
Registration Rights
As part of our issuances of common stock and warrants to the Tail Wind
investors on June 8, 1999 we agreed to register the 952,380 shares of common
stock purchased by the Tail Wind investors and the 95,238 shares of common
stock issuable upon exercise of the warrants issued to the Tail Wind investors.
We registered these shares with the Securities and Exchange Commission in July
1999. As part of our agreement with the Tail Wind investors, we also agreed to
register any additional shares issued to them pursuant to the anti-dilution
provisions of the Purchase Agreement dated June 8, 1999.
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<PAGE>
As part of our issuances of common stock and warrants to the Sunrise
investors on October 5, 1999, October 25, 1999 and January 11, 2000 we agreed
to register the 2,116,347 shares of common stock purchased by the Sunrise
investors and the 571,413 shares of common stock issuable upon exercise of the
warrants issued to the Sunrise investors and to Sunrise Securities Corp. In
December 1999 we registered (i) the 1,516,347 shares of common stock purchased
by the Sunrise investors in October 1999, (ii) 409,413 shares of common stock
issuable to the Sunrise investors and Sunrise Securities Corp. upon the
exercise of the warrants issued in October 1999 and (iii) the 529,849 shares
issued to the Tail Wind investors on October 5, 1999 and October 25, 1999
pursuant to the anti-dilution provisions of the purchase agreement dated June
8, 1999. With this registration statement and prospectus, we are fulfilling our
obligations to register (i) the 600,000 shares of our common stock purchased by
a Sunrise investor in January 2000 and (ii) the 165,161 shares of our common
stock issuable to the Sunrise investor and Sunrise Securities Corp. upon the
exercise of warrants issued in January 2000.
DELAWARE LAW AND CERTAIN CHARTER AND BY-LAW PROVISIONS
We are subject to the provisions of Section 203 of the General Corporation
Law of Delaware. Section 203 prohibits a publicly held Delaware corporation
from engaging in a "business combination" with any interested stockholder for a
period of three years after the date of the transaction in which the person
became an interested stockholder, unless the business combination is approved
in a prescribed manner. A "business combination" includes mergers, asset sales
and other transactions resulting in a financial benefit to the interested
stockholder. Subject to certain exceptions, an "interested stockholder" is (i)
a person who, together with affiliates and associates, owns 15% or more of the
corporation's voting stock or (ii) is an affiliate or associate of Cambridge
Heart and was the owner, together with affiliates and associates of 15% or more
of our outstanding voting stock at any time within the 3-year period prior to
the date for determining whether such person is "interested".
Our certificate of incorporation provides for the division of our board of
directors into three classes as nearly equal in size as possible with staggered
three-year terms. See "Management--Executive Officers and Directors". In
addition, our certificate of incorporation provides that directors may be
removed only for cause by the affirmative vote of the holders of two-thirds of
the shares of capitals stock of the corporation entitled to vote. Under our
certificate of incorporation, any vacancy on our board of directors, however
occurring, including a vacancy resulting from an enlargement of the board, may
only be filled by vote of a majority of the directors then in office. The
classification of our board of directors and the limitations on the removal of
directors and filling the vacancies could have the effect of making it more
difficult for a third party to acquire, or of discouraging a third party from
acquiring, control of Cambridge Heart.
Our certificate of incorporation also provides that any action required or
permitted to be taken by our stockholders at an annual meeting or special
meeting of stockholders may only be taken if it is properly brought before such
meeting and may not be taken by written action in lieu of a meeting. Our
certificate of incorporation further provides that special meetings of our
stockholders may only be called by the President of Cambridge Heart or by our
board of directors. Under our by-laws, in order for any matter to be considered
properly brought before a meeting, a stockholder must comply with certain
requirements regarding advance notice to Cambridge Heart. The foregoing
provisions could have the effect of delaying until the next stockholders'
meeting stockholder actions which are favored by the holders of a majority of
our outstanding voting securities. These provisions may also discourage another
person or entity from making a tender offer for our common stock, because such
person or entity, even if it acquired a majority of our outstanding voting
securities, would be able to take action as a stockholder (such as electing new
directors or approving a merger) only at a duly called stockholders' meeting,
and not by written consent.
The General Corporation Law of Delaware provides generally that the
affirmative vote of a majority of the shares entitled to vote on any matter is
required to amend a corporation's certificate of incorporation or by-laws,
unless a corporation's certificate of incorporation or by-laws, as the case may
be, requires a greater
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<PAGE>
percentage. Our certificate of incorporation and by-laws require the
affirmative vote of the holders of at least 75% of our shares of capital stock
issued and outstanding and entitled to vote to amend or repeal any of the
provisions described in the prior two paragraphs.
Our certificate of incorporation contains certain provisions permitted under
the General Corporation Law of Delaware relating to the liability of directors.
The provisions eliminate a director's liability for monetary damages for a
breach of fiduciary duty, except in certain circumstances involving wrongful
acts, such as the breach of a director's duty of loyalty or acts or omissions
which involve intentional misconduct or a knowing violation of law. Further,
our certificate of incorporation contains provisions to indemnify our directors
and officers to the fullest extent permitted by the General Corporation Law of
Delaware. We believe that these provisions will assist us in attracting and
retaining qualified individuals to serve as directors.
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<PAGE>
PLAN OF DISTRIBUTION
The shares covered by this prospectus may be offered and sold from time to
time by the selling stockholders. The term "selling stockholders" includes
donees, pledgees, transferees or other successors-in-interest selling shares
received after the date of this prospectus from a selling stockholder as a
gift, pledge, partnership distribution or other non-sale related transfer. The
selling stockholders will act independently of us in making decisions with
respect to the timing, manner and size of each sale. Such sales may be made on
one or more exchanges or in the over-the-counter market or otherwise, at prices
and under terms then prevailing or at prices related to the then current market
price or in negotiated transactions. The selling stockholders may sell their
shares by one or more of, or a combination of, the following methods:
. purchases by a broker-dealer as principal and resale by such broker-
dealer for its own account pursuant to this prospectus;
. ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
. block trades in which the broker-dealer so engaged will attempt to sell
the shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
. an over-the-counter distribution in accordance with the rules of the
Nasdaq National Market;
. in privately negotiated transactions; and
. in options transactions.
In addition, any shares that qualify for sale pursuant to Rule 144 may be
sold under Rule 144 rather than pursuant to this prospectus.
To the extent required, this prospectus may be amended or supplemented from
time to time to describe a specific plan of distribution. In connection with
distributions of the shares or otherwise, the selling stockholders may enter
into hedging transactions with broker-dealers or other financial institutions.
In connection with such transactions, broker-dealers or other financial
institutions may engage in short sales of the common stock in the course of
hedging the positions they assume with a selling stockholder. The selling
stockholders may also sell the common stock short and redeliver the shares to
close out such short positions. The selling stockholders may also enter into
option or other transactions with broker-dealers or other financial
institutions which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such transaction). The
selling stockholders may also pledge shares to a broker-dealer or other
financial institution, and, upon a default, such broker-dealer or other
financial institution, may effect sales of the pledged shares pursuant to this
prospectus (as supplemented or amended to reflect such transaction).
In effecting sales, broker-dealers or agents engaged by the selling
stockholder may arrange for other broker-dealers to participate. Broker-dealers
or agents may receive commissions, discounts or concessions from the selling
stockholder in amounts to be negotiated immediately prior to the sale.
In offering the shares covered by this prospectus, the selling stockholders
and any broker-dealers who execute sales for the selling stockholders may be
deemed to be "underwriters" within the meaning of the Securities Act in
connection with such sales. Any profits realized by the selling stockholders
and the compensation of any broker-dealer may be deemed to be underwriting
discounts and commissions.
In order to comply with the securities laws of certain states, if applicable,
the shares must be sold in such jurisdictions only through registered or
licensed brokers or dealers. In addition, in certain states the shares may not
be sold unless they have been registered or qualified for sale in the
applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
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<PAGE>
We have advised the selling stockholders that the anti-manipulation rules of
Regulation M under the Exchange Act may apply to sales of shares in the market
and to the activities of the selling stockholders and their affiliates. In
addition, we will make copies of this prospectus available to the selling
stockholders for the purpose of satisfying the prospectus delivery requirements
of the Securities Act. The selling stockholders may indemnify any broker-dealer
that participates in transactions involving the sale of the shares against
certain liabilities, including liabilities arising under the Securities Act.
At the time a particular offer of shares is made, if required, a prospectus
supplement will be distributed that will set forth the number of shares being
offered and the terms of the offering, including the name of any underwriter,
dealer or agent, the purchase price paid by any underwriter, any discount,
commission and other item constituting compensation, any discount, commission
or concession allowed or reallowed or paid to any dealer, and the proposed
selling price to the public.
We have agreed to indemnify the selling stockholders against certain
liabilities, including certain liabilities under the Securities Act.
We have agreed with the selling stockholders to keep the Registration
Statement of which this prospectus constitutes a part effective until the
earlier of (i) such time as all of the shares covered by this prospectus have
been disposed of pursuant to and in accordance with the Registration Statement
or (ii) the selling stockholder becomes eligible to resell the shares covered
by this prospectus pursuant to Rule 144(k) under the Securities Act.
LEGAL MATTERS
The validity of the shares offered by this prospectus has been passed upon by
Hale and Dorr LLP.
EXPERTS
The financial statements incorporated in this prospectus by reference to the
Annual Report on Form 10-K for the year ended December 31, 1999, have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other documents with the Securities and
Exchange Commission. You may read and copy any document we file at the SEC's
public reference room at Judiciary Plaza Building, 450 Fifth Street, N.W., Room
1024, Washington, D.C. 20549. You should call 1-800-SEC-0330 for more
information on the public reference room. Our SEC filings are also available to
you on the SEC's Internet site at http://www.sec.gov.
This prospectus is part of a registration statement that we filed with the
SEC. The registration statement contains more information than this prospectus
regarding us and our common stock, including certain exhibits and schedules.
You can obtain a copy of the registration statement from the SEC at the address
listed above or from the SEC's Internet site.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate" into this prospectus information that we
file with the SEC in other documents. This means that we can disclose important
information to you by referring to other documents that
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<PAGE>
contain that information. The information incorporated by reference is
considered to be part of this prospectus. Information contained in this
prospectus and information that we file with the SEC in the future and
incorporate by reference in this prospectus automatically updates and
supersedes previously filed information. We incorporate by reference the
documents listed below and any future filings we make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
prior to the sale of all the shares covered by this prospectus.
(1) Our Annual Report on Form 10-K for the year ended December 31, 1999;
(2) All of our filings pursuant to the Exchange Act after the date of
filing the initial registration statement and prior to effectiveness
of the registration statement; and
(3) The description of our common stock contained in our Registration
Statement on Form 8-A dated July 10, 1996.
You may request a copy of these documents, which will be provided to you at
no cost, by contacting:
Cambridge Heart, Inc.
1 Oak Park Drive
Bedford, Massachusetts 01730
Attention: Robert B. Palardy
Telephone: (781) 271-1200
[email protected]
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses to be incurred in
connection with the sale and distribution of the securities being registered
hereby, all of which will be borne by Cambridge Heart, Inc. (except any
underwriting discounts and commissions and expenses incurred by the selling
stockholder for brokerage, accounting, tax or legal services or any other
expenses incurred by the selling stockholder in disposing of the shares). All
amounts shown are estimates except the Securities and Exchange Commission
registration fee.
<TABLE>
<S> <C>
Filing Fee--Securities and Exchange Commission...................... $ 2,726
Legal fees and expenses............................................. $ 5,000
Accounting fees and expenses........................................ $ 5,000
Miscellaneous expenses.............................................. $ 2,274
-------
Total Expenses.................................................... $15,000
=======
</TABLE>
Item 15. Indemnification of Directors and Officers.
Article Nine of the Registrant's Restated 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 or
limitation of liability of directors for breach of fiduciary duty.
Article Nine of the Registrant's Restated 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 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 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 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 a court 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)
incurred in connection therewith. Expenses shall be advanced to a director or
officer at his request, 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. 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.
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<PAGE>
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 expenses incurred in
connection with an action or 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 made with respect to any matter as to which such
person shall have been 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 16. Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
4.1* Certificate of Incorporation of the Registrant.
4.2* By-laws of the Registrant.
5.1 Opinion of Hale and Dorr LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
Consent of Hale and Dorr LLP, included in Exhibit 5.1 filed
23.2 herewith.
24.1 Power of Attorney (See page II-4 of this Registration Statement).
</TABLE>
- --------
* Incorporated herein by reference to the Registrant's Registration Statement
on Form S-1, as amended (File No. 333-04879).
Item 17. Undertakings.
Item 512(a) of Regulation S-K. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this 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 this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in the 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 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included is a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that are incorporated by reference in this Registration
Statement.
(2) That, for the purposes of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to
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<PAGE>
the securities offered therein, and the offering of such securities at the 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.
Item 512(b) of Regulation S-K. 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 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 this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
Item 512(h) of Regulation S-K. 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 indemnification
provisions described herein, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling 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-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Bedford, Commonwealth of Massachusetts, on May
11, 2000.
CAMBRIDGE HEART, INC.
By: /s/ Jeffrey M. Arnold
----------------------------------
Jeffrey M. Arnold
Chief Executive Officer
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of Cambridge Heart, Inc., hereby
severally constitute and appoint Jeffrey M. Arnold, Robert B. Palardy and John
A. Burgess and each of them singly, our true and lawful attorneys with full
power to any of them, and to each of them singly, to sign for us and in our
names in the capacities indicated below the Registration Statement on Form S-3
filed herewith and any and all pre-effective and post-effective amendments to
said Registration Statement and generally to do all such things in our name and
behalf in our capacities as officers and directors to enable Cambridge Heart,
Inc. to comply with the provisions of 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, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Jeffrey M. Arnold President, Chief Executive May 11, 2000
______________________________________ Officer and Director
Jeffrey M. Arnold (Principal Executive
Officer)
/s/ Robert B. Palardy Chief Financial Officer May 11, 2000
______________________________________ (Principal Financial and
Robert B. Palardy Accounting Officer)
/s/ Maren D. Anderson Director May 11, 2000
______________________________________
Maren D. Anderson
/s/ Harris A. Berman Director May 11, 2000
______________________________________
Harris A. Berman
/s/ Richard J. Cohen Director May 11, 2000
______________________________________
Richard J. Cohen
Director
______________________________________
Jeffrey J. Langan
Director
______________________________________
Daniel M. Mulvena
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
4.1* Certificate of Incorporation of the Registrant.
4.2* By-laws of the Registrant.
5.1 Opinion of Hale and Dorr LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Hale and Dorr LLP, included in Exhibit 5.1 filed herewith.
24.1 Power of Attorney (See page II-4 of this Registration Statement).
</TABLE>
- --------
* Incorporated herein by reference to the Registrant's Registration Statement
on Form S-1, as amended (File No. 333-04879).
<PAGE>
EXHIBIT 5.1
HALE AND DORR LLP
COUNSELLORS AT LAW
60 STATE STREET, BOSTON, MASSACHUSETTS 02109
617-526-6000 . FAX 617-526-5000
May 11, 2000
Cambridge Heart, Inc.
1 Oak Park Drive
Bedford, MA 01730
Registration Statement on Form S-3
Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration Statement
on Form S-3 (the "Registration Statement") to be filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), for the registration of an aggregate of
3,235,930 shares of Common Stock, $.001 par value per share (the "Shares"), of
Cambridge Heart, Inc., a Delaware corporation (the "Company"). All of the
Shares are being registered on behalf of certain stockholders of the Company
(the "Selling stockholder").
We have acted as counsel for the Company in connection with the registration
for resale of the Shares. We have examined signed copies of the Registration
Statement to be filed with the Commission. We have also examined and relied
upon the minutes of meetings of the stockholders and the Board of Directors of
the Company as provided to us by the Company, stock record books of the Company
as provided to us by the Company, the Certificate of Incorporation and By-Laws
of the Company, each as restated and/or amended to date, and such other
documents as we have deemed necessary for purposes of rendering the opinions
hereinafter set forth.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents
submitted to us as copies, the authenticity of the originals of such latter
documents and the legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer and
sale of the Shares, to register and qualify the Shares for sale under all
applicable state securities or "blue sky" laws.
We express no opinion herein as to the laws of any state or jurisdiction
other than the state laws of the Commonwealth of Massachusetts, the Delaware
General Corporation Law and the federal laws of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized and are validly issued, fully paid and
nonassessable.
It is understood that this opinion is to be used only in connection with the
offer and sale of the Shares while the Registration Statement is in effect.
BOSTON WASHINGTON, D.C. NEW YORK RESTON, VA LONDON*
- --------------------------------------------------------------------------------
HALE AND DORR LLP INCLUDES PROFESSIONAL CORPORATIONS *(AN INDEPENDENT JOINT
VENTURE LAW FIRM)
<PAGE>
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of our
name therein and in the related prospectus under the caption "Legal Matters."
In giving such consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations of the Commission.
Very truly yours,
/s/ HALE AND DORR LLP
HALE AND DORR LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement to register 3,235,930 shares of common stock on Form S-3 of our
report dated February 14, 2000, relating to the financial statements which
appear in Cambridge Heart's Annual Report on Form 10-K for the year ended
December 31, 1999. We also consent to the references to us under the heading
"Experts" in such Registration Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
May 11, 2000
